ORDER MO-4766

Appeal MA24-00028

The Corporation of the City of Kingston

February 17, 2026

Summary: An individual made a request to The Corporation of the City of Kingston under the Municipal Freedom of Information and Protection of Privacy Act  for information that included two total amounts it paid regarding employee dismissals. The city denied access to this information, claiming that the two amounts fall outside the definition of “record” in section 2(1) of the Act because the process of producing a record containing those amounts would unreasonably interfere with its operations as contemplated by section 2 of Regulation 823 made under the Act. It also claimed, in the alternative, that the discretionary solicitor-client privilege exemption at section 12 of the Act applies to one of the requested amounts, the total amount paid to consultants and lawyers pertaining to employee dismissals.

In this order, the adjudicator finds that the two total amounts regarding the city’s dismissal of former employees fall within the definition of “record” because the city has not established that the process of producing them would not unreasonably interfere with its operations. She also finds that the discretionary solicitor-client privilege exemption does not apply to the total amount paid to consultants and lawyers. She orders the city to disclose the total amount paid to consultants and lawyers to the appellant and to issue an access decision with respect to the other amount, the total amount paid by the city to its former employees.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56, sections 2(1)  (definition of record) and 12; Regulation 823, R.R.O. 1990, as amended, section 2.

Orders Considered: Orders MO-4332, P-50, PO-2752, and PO-4430.

Cases Considered: Maranda v. Richer, [2003] 3 S.C.R. 193; Order PO-2484, upheld on judicial review in Ontario (Ministry of the Attorney General) v. Ontario (Information and Privacy Commissioner), [2007] O.J. No. 2769, 2007 CanLII 65615 (ONSCDC); see also Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2005] O.J. No. 941 (C.A.).

OVERVIEW:

[1] This order considers whether the information responsive to a request for two total amounts paid by the city regarding former employees falls outside the definition of a “record” and whether one of these amounts, if it falls within the definition of “record”, is exempt from disclosure by reason of the solicitor-client privilege exemption.

[2] An individual made a request to The Corporation of the City of Kingston (the city) under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to the following information for the time period between January 1, 2018 and December 1, 2023:

1. The total number of people who have been dismissed from their city employment during this time period, after having completed their probation period. [And] the gender breakdown of the total number.
2. The total number of grievances filed or claims letters from legal representatives (non-unionized staff) with respect to these dismissals including the following breakdown: the number of grievances or legal claims still in process, the number resolved and the amount of the settlement, and the number resolved by reinstatement of the employee.
3. The total amount paid to these former employees by the city including the cost of continued health benefits, pension contributions, and other benefits.
4. The total amount paid to consultants and lawyers with respect to these dismissals.[1]

[3] The city issued a decision granting partial access to the responsive information. The city stated that it did not have the details with respect to part 3 of the request, being the total amount paid to former employees. It also claimed that the total amount paid to consultants and lawyers pertaining to employee dismissals as requested in part 4 of the request, is exempt from disclosure pursuant to section 12 (solicitor-client privilege) of the Act.

[4] Following discussions between the city and the requester, the city issued a supplementary decision in which it disclosed additional information. The city stated that it did not have a record that responded to part 3 of the request, the total amount paid to former employees, and that it was not obligated to generate a record that did not already exist.

[5] The requester (now the appellant) appealed the city’s decision to the Information and Privacy Commissioner of Ontario (the IPC).

[6] During mediation, the appellant confirmed an interest in pursuing access to the total amounts paid by the city in response to parts 3 and 4 of her request, the total amount paid by the city to former employees and the total amount paid by the city to consultants and lawyers with respect to the dismissals of former employees.

[7] Since mediation did not resolve the appeal, this file was transferred to the adjudication stage of the appeals process. Representations were sought and exchanged between the city and the appellant in accordance with the IPC’s Practice Direction 7.

[8] In this order, I find that the two total amounts at issue regarding the city’s former employees exist and fall within the definition of “record” in section 2(1) as the city is able to produce these records using technical equipment or expertise normally used by it and to do so would not unreasonably interfere with the city’s operations as contemplated in section 2 of Regulation 823.

[9] I also find that the discretionary solicitor-client privilege exemption at section 12 of the Act does not apply to the total amount paid to consultants and lawyers pertaining to employee dismissals. I order the city to disclose the total amount paid to consultants and lawyers to the appellant and to issue an access decision to the appellant for the total amount paid by the city to its former employees.

ISSUES:

1. Do the records for the two total amounts paid by the city regarding former employees, if they exist, fall within the definition of “record” set out in section 2 of Regulation 823?
2. Does the discretionary solicitor-client privilege exemption at section 12 of the Act apply to the total amount paid to consultants and lawyers pertaining to employee dismissals?

DISCUSSION:

Issue A: Do the records for the two total amounts paid by the city regarding former employees, if they exist, fall within the definition of “record” because of section 2 of Regulation 823?

[10] The city disputes that the two total amounts sought by the appellant qualify as “records” under the Act because that information cannot be compiled into a record without significant work on the part of the city.

[11] The definition of “record” in section 2(1) of the Act states, in part:

“record” means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution.

[12] Section 2 of Regulation 823, states:

A record capable of being produced from machine readable records is not included in the definition of “record” for the purposes of the Act if the process of producing it would unreasonably interfere with the operations of an institution.

Representations

[13] The city’s position is that responsive records for the appellant’s request for the total amounts paid by the city to (a) former employees, including the cost of continued health benefits, pension contributions and other benefits (“employee costs”) and (b) consultants and lawyers with respect to the employee dismissals (“legal costs”) do not exist and they are not capable of being produced from existing machine readable records.

City’s representations

Employee costs

[14] Regarding the total employee costs, the city states that the director of its Finance department has advised that, in accordance with generally accepted accounting standards, when the city pays wages, severance, damages in lieu of notice, settlement monies, pension contributions, benefits contributions or other amounts arising from the termination of an employee, the city’s Finance department accrues those costs as a staffing cost in the fiscal year of the termination. It submits that because the fiscal year of the termination is often not the same fiscal year that the amounts were actually paid its financial records do not show a line item showing these employee costs for each fiscal year. The city further submits these costs are also not listed for each calendar year.

[15] The city submits that the manager of its Labour Relations division advises that to create a record containing the employee costs, it would need to carefully review each terminated employee’s personnel file to review settlement agreements, wage statements, pension statements, benefits statements, and other documents. It states that city staff conservatively estimate that this task would require between 14 and 21 hours of staff time. It further submits that due to the privileged and confidential nature of many of these records, this task would have to be performed by a senior member of the city’s Human Resources & Organizational Development department (the HR Department), which would unreasonably interfere with the city’s operations.

Legal costs

Regarding the total legal costs, the city acknowledges that it has the information necessary to determine this amount but has not undergone the process to calculate it. The city states that, in accordance with generally accepted accounting standards, when it pays lawyer or consultant fees arising from the termination of an employee, its Finance department accrues those costs as a legal cost in the fiscal year of the termination, which is often not the same fiscal year as the amounts were actually paid. The city submits that, as with the employee costs, its financial records do not show a line item showing these legal costs for each fiscal or calendar year. Therefore, the city submits that it is not able to create a responsive record for the legal costs request from a machine readable record under its control.

Appellant’s representations

[16] The appellant submits that the two amounts that he is seeking access to relate to 84 former city employees and 12 lawyers and that the responsive records are capable of being produced from the information in the city’s database by means of computer hardware and software, and technical expertise normally used by it.[2]

[17] Concerning the employee costs amount, the appellant acknowledges that the city may not have a report that has a summary of the requested information but states that nevertheless, the city has the records for each employee in its database, and the total amount can therefore be compiled.

[18] The appellant relies on Order MO-4166-I, where the adjudicator determined that to establish that the process of producing a record would unreasonably interfere with the operations of an institution, it must provide evidence that responding to a request would “obstruct or hinder the range of effectiveness of the institution’s activities.”

[19] The appellant also relies on Order PO-4283, where the adjudicator ordered an institution to produce records although it had estimated that it would take 210 hours to do so. He notes that the adjudicator found that the institution did not demonstrate that its proposed process for extracting information from its human resources databases would unreasonably interfere with its operations.

[20] The appellant disputes the city’s position that only a “senior” HR staff member can review the relevant records, submitting that all staff in the city’s HR department routinely handle a wide variety of personnel and confidential matters and are expected to respect the privacy of individuals as a condition of their employment.

[21] The appellant submits that the city has not provided the required evidence to prove that compiling the requested information would “obstruct or hinder the range of effectiveness of [its] activities.” He further submits that it appears that the record could be created using the “technical expertise normally used by the institution” because the city estimated that it would take between 14 and 21 hours of staff time to respond to his request for employee costs in part 3.

[22] The appellant submits that although the city’s Finance department accrues costs as a staffing cost in the fiscal year of the termination, which is often not the same fiscal year that the amounts were actually paid, that accounting approach should not bar access to the information. He relies again on Order PO-4283, where the adjudicator noted that it is not permissible for public bodies to structure their databases in a manner that would, by design or effect, defeat the right of public access.

[23] Despite being provided with an opportunity to respond to the appellant’s representations on this issue, the city chose not to do so.

Analysis and findings

[24] In determining whether a “record” meets the requirements of the definition in section 2(1) of the Act, the IPC reviews the circumstances on a case-by-case basis.

[25] Requested information will qualify as a record under the Act if two conditions are met:

• If it can be produced using computer hardware and software or any other information storage equipment and technical expertise normally used by the board, and
• if the process of producing it would not unreasonably interfere with the institution’s operations.[3]

[26] In Order PO-2752, the IPC noted that previous decisions have confirmed that, to establish interference, an institution must, at a minimum, provide evidence that responding to a request would “obstruct or hinder the range of effectiveness of the institution’s activities.”[4] These orders have also noted that, where an institution has allocated insufficient resources to the freedom of information access process, it may not be able to rely on limited resources as a basis for claiming interference.[5]

[27] Although government organizations are not obliged to maintain records in such a manner as to accommodate the various ways in which a request for information might be framed,[6] an institution must provide sufficient evidence beyond stating that extracting information would take time and effort in order to support a finding that the process of producing a record would unreasonably interfere with its operations.[7]

[28] For the reasons set out below, I find that both amounts requested by the appellant, the total amount paid to former employees and the total amount paid to consultants and lawyers, meet these two conditions and therefore qualify as a “record” within the meaning of the Act.

Employee costs amount

[29] In my view, the city has not provided evidence that the total amount of employee costs cannot be produced using technical expertise normally used by it. In contrast, the city has indicated that it can produce this record by utilizing between 14 and 21 hours of a staff’s time from its HR Department to extract the requested information. Accordingly, the city does not appear to claim that this amount cannot be produced; rather, it appears that the city’s position is that doing so would unreasonably interfere with its operations.

[30] I find that in indicating that it can produce this record by utilizing between 14 and 21 hours of a staff’s time from its HR Department, the city has not provided evidence that doing so would unreasonably interfere with its operations because:

• The city has not explained why the number of estimated hours would unreasonably interfere with its operations.
• The city has not explained why other HR staff, besides senior HR staff, could not calculate the employee costs amount in a responsible manner.
• The city has not explained how using a senior HR staff member in creating the employee costs amount would unreasonably interfere with its operations.

[31] Therefore, I find that the city has not established that the employee costs amount is not capable of being produced from an existing machine-readable record, or that doing so would unreasonably interfere with the city’s operation within the meaning of the Regulation.

[32] For the employee costs amount, the city has not indicated in its decision letter whether it has considered whether any exemptions might apply to this information. Accordingly, I will order the city to issue an access decision with respect to the amount of employee costs requested by the appellant.

Legal costs amount

[33] As indicated, the city has admitted that it has the information necessary to determine this amount but has not undergone the process to calculate it. Nor has it provided any evidence that the process of producing this number, by adding up the amounts paid to each of the 12 lawyers or consultants for the six-year period of the request, would unreasonably interfere with its operations.

[34] Therefore, I also find that the legal costs amount meets the definition of a “record” in section 2(1) of the Act as it is capable of being produced from a machine readable record under the city’s control by means of computer hardware and software or any other information storage equipment and technical expertise normally used by it. I will consider below whether the responsive legal costs amount is information that would be exempt under section 12 of the Act.

Conclusion

[35] I find that both amounts sought by the requester, the employee costs and the legal costs amounts, fall within the definition of “record” in section 2(1) of the Act and section 2 of Regulation 823.

[36] I find that the city has not established that it is not capable of producing both amounts from a machine-readable record under the city’s control by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the city. I also find that the city has not established that the process of producing records containing the information responsive to the appellant’s request for these amounts would unreasonably interfere with the city’s operations.

[37] In finding that producing the records in this appeal would not unreasonably interfere with the city’s operations, I rely on the findings in the orders referred to by the appellant above. I also rely on the findings in Order PO-4430 where the adjudicator reviewed the IPC’s jurisprudence on whether the process of producing a record would unreasonably interfere with the operations of an institution under section 2 of Regulation 460.[8] The adjudicator noted that this issue was first addressed in Order P-50, where the adjudicator determined:

What constitutes an “unreasonable interference” is a matter which must be considered on a case-by-case basis, but it is clear that the Regulation is intended to impose limits on the institution’s responsibility to create a new record.

[38] The adjudicator in Order PO-4430 noted that the IPC has adopted a case-by-case basis of reviewing the circumstances and that prior IPC orders, including Order PO-2752, have confirmed that:

…[T]o establish interference, an institution must, at a minimum, provide evidence that responding to a request would “obstruct or hinder the range of effectiveness of the institution’s activities.”[9] These orders have also noted that, where an institution has allocated insufficient resources to the freedom of information access process, it may not be able to rely on limited resources as a basis for claiming interference.[10] Although government organizations are not obliged to maintain records in such a manner as to accommodate the various ways in which a request for information might be framed,[11] an institution must provide sufficient evidence beyond stating that extracting information would take time and effort in order to support a finding that the process of producing a record would unreasonably interfere with its operations.[12]

[39] The city has only indicated that it would take time and effort to locate the two responsive amounts. I find that it has not provided sufficient evidence that responding to the request would “obstruct or hinder the range of effectiveness of the institution’s activities.” Therefore, I find that the city has not established that extracting the responsive information to produce the responsive two requested amounts would unreasonably interfere with the city’s operations.

Issue B: Does the discretionary solicitor-client privilege exemption at section 12 of the Act apply to the total amount paid to consultants and lawyers pertaining to employee dismissals?

[40] The city claims that the legal costs amount is subject to exemption under the discretionary exemption for solicitor-client privileged information under section 12 of the Act. I disagree.

[41] Section 12 exempts certain records from disclosure, either because they are subject to solicitor-client privilege or because they were prepared by or for legal counsel for an institution. It states:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

[42] Section 12 contains two different exemptions, referred to in previous IPC decisions as “branches.” The first branch (“subject to solicitor-client privilege”) is based on common law and includes solicitor-client communication privilege and litigation privilege. The second branch (“prepared by or for counsel employed or retained by an institution…”) is a statutory privilege created by the Act. The institution must establish that at least one branch applies.

[43] Legal billing information, which is often considered under solicitor-client communication privilege in branch 1, is presumed to be privileged unless the information is “neutral” and does not directly or indirectly reveal privileged communications.[13]

Representations

[44] The city claims that the common law solicitor-client communication privilege in Branch 1 applies to the information responsive to part 4 of the appellant’s request.

[45] The city submits that information about lawyer’s fees is presumptively privileged, as the existence of the lawyer’s fees (and the fact that the city paid them) is connected to the solicitor-client relationship and must be regarded, as a general rule, as one of the elements of that relationship. Accordingly, it submits that such information falls prima facie within the scope of solicitor-client privilege.[14] The city states that the onus is on the appellant (or on the IPC on its own initiative) to rebut that presumption.

[46] The city further states that this presumption of privilege will be rebutted only if there is no reasonable possibility that disclosure of the information will directly or indirectly reveal (to an assiduous inquirer aware of background information available to the public) any communication between the city and its lawyers protected by privilege.[15]

[47] The city did not provide more specific representations addressing the application of this exemption to the particular legal costs amount requested.

[48] The appellant submits:

• There is no possibility that the disclosure of the total amount paid by the city to 12 unknown and unnamed lawyers over a six-year period will directly or indirectly reveal any communication protected by solicitor-client privilege; and,
• There is no possibility that an “assiduous inquirer” could use this information to deduce or otherwise acquire privileged communications. With 12 lawyers having done work concerning up to 84 employees over six years, there is no way for anyone to draw any specific conclusions that would breach solicitor-client privilege.

[49] In support of her position, the appellant relies on Order MO-4332, where the adjudicator concluded:

… [W]ere the legal invoices severed to reveal only the bottom-line total amount of each invoice, the invoices would be rendered neutral and the presumption against disclosure of these totals would be rebutted.

[50] The appellant states that she is not requesting individual invoices, only a bottom-line total amount paid by the city to consultants and lawyers over a six-year period with respect to the employee dismissals. She submits that the information requested is “neutral” as there is no possibility of it revealing any privileged communication between any of the 12 lawyers or their clients.

[51] The appellant also states that as only lawyers are covered by solicitor-client privilege, any fees of consultants would not be subject to the exemption. The appellant submits that the total amount paid to 12 unidentified consultants and lawyers will in no way expose any confidential information protected by solicitor-client privilege with respect to their unidentified and unidentifiable clients.

Analysis and findings

[52] The rationale for the common law solicitor-client communication privilege is to ensure that a client may freely confide in their lawyer on a legal matter.[16] This privilege protects direct communications of a confidential nature between lawyer and client, or their agents or employees, made for the purpose of obtaining or giving legal advice.[17] The privilege covers not only the legal advice itself and the request for advice, but also communications between the lawyer and client aimed at keeping both informed so that advice can be sought and given.[18]

[53] Confidentiality is an essential component of solicitor-client communication privilege. The institution must demonstrate that the communication was made in confidence, either expressly or by implication.[19] The privilege does not cover communications between a lawyer and a party on the other side of a transaction.[20]

[54] At common law, legal billing information, including legal fees, may be subject to solicitor-client privilege. The leading authority on legal billing information is Maranda v. Richer (Maranda),[21] where the Supreme Court of Canada found such information to be presumptively privileged, which may be rebutted if the information is “neutral”.

[55] Therefore, legal billing information is presumed to be privileged unless the information is “neutral” and there is no reasonable possibility that disclosure of the amount of fees paid would directly or indirectly reveal privileged communications.[22]

[56] Typically, the test in Maranda is expressed in the form of the following questions based on the decision of the Ontario Court of Appeal in Ontario (Ministry of the Attorney General) v. Ontario (Assistant Information and Privacy Commissioner),[23] which the city was asked to respond to in the Notice of Inquiry:

1. Is there any reasonable possibility that disclosure of the amount of the fees paid will directly or indirectly reveal any communication protected by the privilege?
2. Could an “assiduous inquirer” (someone taking a very methodical and persistent approach), aware of background information, use the information requested to deduce or otherwise acquire privileged communications?[24]

[57] It is not sufficient to simply state that, because previous authorities have held aggregate legal fees to be “neutral” and the presumption of privilege was rebutted in the specific circumstances of those cases, this will always be the case. The Ministry of the Attorney General decision does not stand for the broad proposition that there is no reasonable possibility that privileged inferences can be deduced from a party’s bare legal fees. Rather, at paragraph 13 of the decision, the Court of Appeal accepted that in some circumstances an assiduous inquirer may use the amount of fees paid to deduce privileged information but found no realistic possibility “in this case”.

[58] The city did not specifically respond to the questions set out in the Notice of Inquiry. However, from my review, the total amount of fees paid to consultants and lawyers related to employee dismissals over a period of six years as requested by the appellant qualifies as “neutral information.”

[59] The total amount of consultant and legal fees sought by the appellant are not the bottom-line amounts of individual invoice amounts but is an even more general amount compiled from numerous invoices rendered for services, being the total fees paid to 12 lawyers or consultants related to 84 dismissed employees. I find that the city has not established, and there is otherwise insufficient evidence before me to demonstrate, that there is a reasonable possibility that disclosure of this total amount of the fees paid could reasonably be expected to directly or indirectly reveal any solicitor-client privileged communication.

[60] I also find, considering the number of lawyers to whom the fees were paid and the number of dismissed employees to whom those fees relate, there is insufficient evidence before me to conclude that disclosure of the total amount alone would permit an assiduous inquirer to deduce or otherwise acquire privileged communications.

[61] Accordingly, I find that the city has not established that the solicitor-client communication privilege attaches to the total amount sought by the appellant in part 4 of her request. Therefore, I find that the legal costs amount requested by the appellant in part 4 of her request is not subject to the solicitor-client exemption at section 12. As no other exemptions have been claimed for this information, I will order the city to disclose it to the appellant.

ORDER:

1. I order the city to disclose the total legal costs (including the amount for consultants) amount to the appellant by March 19, 2026.
2. I order the city to issue an access decision for the employee costs amount to the appellant, treating the date of this order as the date of the request for procedural purposes.
3. In order to verify compliance with this order, I reserve the right to require the city to provide me with a copy of the record disclosed to the appellant pursuant to order provision 1 and a copy of the access decision issued pursuant to order provision 2.

Original Signed by:		February 17, 2026
Diane Smith
Adjudicator