Public Services and Procurement Canada (Re), 2025 OIC 14
Date: 2025-02-27
OIC file number: 5819-05773
Access request number: A-2017-00674
Summary
The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for all records related to the negotiation of the 1991 lease between Bourque, Pierre et Fils and the government for the Louis St-Laurent Building. The allegation falls under paragraph 30(1)(a) of the Act.
PSPC applied section 23 in a blanket manner, withholding the entirety of the 96,781 pages of records, citing both grounds of section 23: solicitor-client privilege and litigation privilege. Although some of the information meets the requirements of solicitor-client privilege, PSPC did not demonstrate that any information met the requirements under litigation privilege.
The Information Commissioner ordered that PSPC disclose certain and reconsider its discretion under section 23 where the requirements of solicitor-client privilege were met. PSPC gave notice to the Commissioner that it would comply with the order.
The complaint is well founded.
Complaint
[1] The complainant alleged that Public Services and Procurement Canada (PSPC) had improperly withheld information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act in response to an access request. The request was for all records related to the negotiation of the 1991 lease between Bourque, Pierre et Fils and the government for the Louis St-Laurent Building and particularly the following:
- All records related to the negotiation of the lease;
- All records related to the interpretation of any provision of the lease, including but not limited to:
- All records related to Section 9 of the lease;
- All records related to Section 3 of the lease and/or any records related to rental owing pursuant to the lease;
- All records related to the building and/or the lease that were prepared by, received by, or sent to a list of named PSPC employees or former employees, including:
- Director, Real Property;
- Director General, Real Property;
- Director General, Real Property - NCA;
- Associate Assistant Deputy Minister, Real Property;
- Senior Director, Real Estate Services - NCA;
- Deputy Minister and Deputy Receiver General for Canada;
- Minister of Public Services and Procurement Canada and Receiver General for Canada;
- Minister of Public Services and Procurement Canada; and
- Acting/Assistant Deputy Minister, Real Property Services Branch.
[2] The allegation falls under paragraph 30(1)(a) of the Act.
Investigation
[3] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified. PSPC applied section 23 in a blanket manner, withholding the entirety of the 96,781 pages of records.
[4] Up until May 2024, the Office of the information Commissioner (OIC) was given only a 521-page sample of the responsive records (the sample records) by PSPC. In order to advance the investigation, the OIC did a preliminary analysis of the application of section 23 to the sample records.
[5] In June 2024, the OIC received an additional 22,500 pages of records. A summary review was also performed by the OIC on these pages.
[6] It should be noted that PSPC did not rely on any other exemptions to justify withholding information within the records, either at the time of the access response or during the investigation. Accordingly, my decision is based on the two samples provided to the OIC and reviewed in light of PSPC’s representations regarding the application of section 23 to all of the pages responsive to the request.
Section 23: solicitor-client and litigation privilege
[7] Section 23 allows institutions to refuse to disclose information subject to solicitor-client privilege or the professional secrecy of advocates and notaries when the information relates to legal advice given to a client. Section 23 also allows institutions to refuse to disclose information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.
[8] To claim this exemption with regard to solicitor-client privilege, institutions must show the following:
- The information consists of communication between a lawyer or notary and his or her client.
- That communication relates directly to the seeking or giving of legal advice, including all the exchanges of information needed to give legal advice.
- The parties intend the communication and advice to remain confidential.
[9] To claim this exemption with regard to litigation, institutions must show the following:
- The information was prepared or gathered for the dominant purpose of litigation.
- The litigation either is in progress or is reasonably expected to occur.
[10] Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.
[11] When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to disclose the information.
Does the information meet the requirements of the exemption?
[12] PSPC fully withheld the responsive records, citing both grounds of section 23: solicitor-client privilege and litigation privilege.
[13] With respect to solicitor-client privilege, I accept that throughout the responsive records, there is information that consists of, or directly reflects, communications between PSPC and its lawyers or notaries (collectively referred to as “legal counsel”) related to the seeking or giving of legal advice. Examples found within the sample records may include:
- Letters between PSPC and notaries regarding real estate transactions;
- Portions of briefing notes information that describe advice obtained from legal counsel;
- Faxes between PSPC and the Department of Justice; and
- Letters addressed to PSPC from its legal counsel.
[14] I accept that PSPC intended such communications and advice to remain confidential.
[15] Not all communications involving legal counsel found within the records, however, meet the requirements of solicitor-client privilege. Examples of information not meeting the requirements found within the sample records include:
- Summaries of meetings where PSPC legal counsel was present, but where a third party was also present; and
- Letters sent by PSPC legal counsel to third parties.
[16] In both of the above examples, the records do not contain any communications between legal counsel and their client that relates directly to seeking or giving of legal advice. In addition, because these records reflect information shared with third parties, they also do not consist of information intended to be confidential as between legal counsel and client.
[17] I conclude that only the information that consists of, or directly reflects, communications between PSPC and its legal counsel related to the seeking or giving of legal advice that was intended to remain confidential meets the requirements of this ground of section 23.
[18] With respect to litigation privilege, where the records do not contain or otherwise reveal communications involving legal counsel, PSPC has indicated it is claiming litigation privilege with respect to all of the responsive records. PSPC provided a list of relevant legal proceedings related to the building and asserted that disclosure would harm the ongoing and reasonably anticipated litigation.
[19] For the reasons that follow, I find that PSPC has failed to demonstrate how any of the records were prepared or gathered for the dominant purpose of litigation. It is not sufficient to identify ongoing or upcoming litigation; PSPC was required to demonstrate how any specific record was prepared or gathered for the dominant purpose of that specific legal proceeding.
[20] For records responsive to Part A of the request, relating to the negotiation of the lease, PSPC has not met its burden of demonstrating how any such records were prepared or gathered for the dominant purpose of litigation. On their face, these records were prepared or gathered for the dominant purpose of negotiating the lease. Examples of this type of record found within the sample records may include:
- Building appraisal reports;
- Communications regarding the negotiation of a lease-purchase for the property;
- Summaries of appraisal reports; and
- Offers and counter-offers made.
[21] Part B of the request was for records related to the interpretation of any provision of the lease. Although I accept that such records are likely to contain legal advice and therefore may be withheld under that ground of section 23, PSPC failed to demonstrate the necessary connection between any specific record and ongoing or reasonably anticipated litigation.
[22] Part C of the request is especially broad, encompassing all records related to the building that were prepared by, received by or sent by several named individuals. PSPC has failed to demonstrate how any record responsive to Part C of the request was prepared or gathered for the dominant purpose of litigation. Examples of this type of record found within the sample records include:
- Building condition reports;
- Minutes of meetings with third parties regarding building matters;
- Communications regarding lease renewals and new lease agreements; and
- Documents related to the cancellation of the existing lease in 1992.
[23] In summary, I conclude that PSPC has failed to demonstrate that any of the information requested under Part A, B and C of the request meets the requirements of litigation privilege.
Did the institution reasonably exercise its discretion to decide whether to disclose the information?
[24] Since PSPC was of the view that the information meets the requirements of section 23, it was required to reasonably exercise its discretion to decide whether to disclose the information. In doing so, PSPC had to consider all the relevant factors for and against disclosure.
[25] During the investigation, PSPC identified the following factors as having been considered when exercising its decision to refuse access based on section 23: the purpose of the exemption, the consultations required, the consequences of disclosure, and the public interest.
[26] That consultations may be needed is an irrelevant factor that PSPC nonetheless considered in its exercise of discretion. Weighing the time and effort required to properly apply exemptions as a factor against disclosure would stand in opposition to the purpose of the Act.
[27] PSPC also failed to consider some relevant factors in coming to its decision, such as the purpose of the Act, the public availability of some of the information at issue and the age of certain records, which date back as far as 1991.
[28] I conclude that PSPC did not consider all relevant factors when it decided not to disclose the information. Consequently, the exercise of discretion by PSPC was not reasonable.
Section 25: severance
[29] Section 25 applies notwithstanding any other provision in the Act. It requires institutions to disclose any part of a record that does not contain exempt information under the Act, and which can reasonably be severed from exempt information on the record. This is an extension of the principle that necessary exceptions to access should be limited and specific.
[30] In the Federal Court of Appeal decision, Canada (Public Safety and Emergency Preparedness) v. Canada (Information Commissioner), 2013 FCA 104, the court considered the interplay between section 23 and section 25 of the Act. Finding that solicitor-client privilege is not an “all-or nothing” matter, the court wrote: “sometimes only part of a document is privileged [...] Indeed, under section 25 of the Act, a head of a government institution must sever any part of a record that does not contain exempt material if it can be reasonably severed.” (at para 21)
[31] At the time PSPC responded to the request, PSPC had only performed a general review of some small portion of the records. In fact, as was discovered during the investigation, at the time of the response, PSPC had not scanned any of the records into its system for processing. Where only portions of records meet the requirements for exemption, such as sections of briefing notes that describe advice requested or obtained from legal counsel, PSPC has not demonstrated that no severance is possible.
[32] In the Federal Court of Appeal decision, Rubin v. President of Canada Mortgage & Housing Corp., 1988 CanLII 5656 (FCA), [1989] 1 FC 265, the court determined that where no examination of the records had been done for the purposes of the severance exercise, this failure to perform severance was fatal to the validity of the decision of the delegated authority. (at page 273)
[33] I conclude that PSPC failed to adhere to section 25 when it fully withheld the entirety of the responsive records. Accordingly, PSPC must perform a severance exercise in accordance with section 25, and the guidance provided on this section by the majority of the Supreme Court in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, paras. 229-238, and disclose any information that it is not authorized to withhold.
Outcome
[34] The complaint is well founded.
Orders
I order the Minister of Public Works and Government Services to do, forthwith, the following:
- Disclose the following types of records:
- Building appraisal reports;
- Summaries of appraisal reports;
- Communications regarding the negotiation of a lease-purchase for the property;
- Offers and counter-offers made;
- Building condition reports;
- Minutes of meetings with third parties regarding building matters;
- Communications regarding lease renewals and new lease agreements; and
- Documents related to the cancellation of the existing lease in 1992.
- Disclose all other records that do not meet the requirements of solicitor-client privilege, as outlined above.
- Disclose all the records withheld under litigation privilege, except information for which I have concluded that the requirements of solicitor-client privilege are met.
- Reconsider discretion under section 23 with respect to the information that I have concluded meets the requirements of solicitor-client privilege, taking into account all relevant factors for and against disclosure, as outlined above.
Initial report and notice from institution
On January 22, 2025, I issued my initial report to the Minister of Public Works and Government Services setting out my orders.
On February 21, 2025, PSPC’s Assistant Deputy Minister, Policy, Planning and Communications gave me notice that PSPC would be implementing the orders.
PSPC indicated that it has started removing duplicate records, resulting in around 75,000 records remaining to be processed. PSPC also indicated it has assigned a full-time resource to the processing of the records and will issue disclosure in phases, prioritizing the approximately 25,000 pages of records older than 20 years for the first phase, which it plans to complete by July 2025.
PSPC indicated that this first phase of release would include building appraisal reports, summaries of appraisal reports, building condition reports and lease-purchase communications where consultation with third parties is unnecessary. For the second phase, PSPC has estimated it will include approximately 50,000 pages, including solicitor-client privilege records and records requiring consultation with third parties. PSPC indicated that a third phase might be added in order to provide more timely access to records as soon as they have been processed. Based on the volume and complexity of the information found within the records, PSPC expects to be able to disclose all records by March 2028.
Review by Federal Court
When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.