Section 23: Solicitor-client privilege
- 23(1) The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege. R.S. 1985, c. A-1, s. 23.
The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian citizen or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the federal government. More specifically, the Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.
Section 23 is a discretionary class exemption. This is a two step process requiring two distinct determinations by the head of the institution. First the head must determine whether the records fall within the class enunciated in the exemption. Secondly, he/she must also exercise his/her discretion whether to disclose the information by determining the consequences/effect to be expected from the disclosure of the requested information and considering whether those consequences outweigh the public interest in the disclosure of this information.
When reviewing the application of a discretionary exemption like section 23, it is important to remember that the government institution has the evidentiary burden of showing not only that the information falls within the scope of the exemption, but that the head of the institution or his/her delegate properly exercised their discretion in deciding not to disclose the information1. If there is no evidence establishing that the institution head considered whether or not to disclose information subject to a discretionary exemption, or if the evidence about why they decided to refuse disclosure indicates the head relied on irrelevant or unreasonable factors or on improper considerations or that the head relied on irrelevant or unreasonable factors or on improper considerations or that the decision is not consistent with the objects of the Act (that of extending disclosure of government information subject to limited and specific exemptions), then it is open to our office, and to the Federal Court on a review, to question or reject the decision to refuse disclosure.
There are two distinct branches of solicitor/client privilege, the legal advice privilege and the litigation privilege (which is sometimes called the lawyers' brief privilege). The legal advice privilege extends to all communications written or oral, passing between solicitor and client for the purpose of obtaining legal advice. It is not necessary for the purpose of the legal advice privilege that the solicitor have actually been asked to give the advice: preliminary communications made by the client to a solicitor for the purpose of asking the solicitor to give advice are also privileged. As for the litigation privilege, it protects from disclosure communications between a solicitor and a client or with third parties which are made in the course of preparation for litigation, whether existing or contemplated, such as experts report where the dominant purpose of obtaining the report was for the purpose of litigation.
The reason for the legal advice privilege is that if the privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived of all professional assistance, a man will not venture to consult any skilful person or would only dare to tell his counsellor half his case.2
The reason for the lawyer's brief privilege is that, under our adversary system of litigation a lawyer's preparation of his client's case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed its preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other's briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system.3
In order to be exempted from disclosure under this section, the information in issue must fall in either of the two branches of the privilege. Not only does it need to fall under a branch but also it needs to meet all the requirements within that branch.
a) Legal Advice Privilege:
All communications, verbal or written, of a confidential character, between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal advisor's working papers, directly related thereto).
b) Litigation Privilege:
All papers and materials created or obtained specially for lawyers brief for litigation, whether existing or contemplated:4 sometimes the question will be what was the purpose for which the record was created. Solicitor/client privilege only applies where the dominant or principal purpose for which the record was obtained or created is the litigation.
i) There are three exceptions to the privilege namely:
- First is the informed waiver of the privilege by the client or implied waiver of a privileged document by its use in court;
- Communications between a lawyer and a client are not privileged when the client attempts to obtain legal advice that would facilitate a crime or fraud; this would (hopefully) never occur in a government context.
- the privilege extends only to communications and does not protect from disclosure certain facts discovered in the course of a solicitor/client relationship by either solicitor or client.5
ii) 1st Branch:
Not all communications can be exempted under this part of the privilege. In order to be exempted the information must meet the three following criteria:
all the information must be of a confidential nature;
the information must be between a client and a legal advisor; and
the communication must have been made for the purpose of requesting, formulating or giving legal advice or assistance.
Since the purpose of the Act is to provide a right of access in accordance with the principle that the exemptions must be narrowly interpreted, you must take a restrictive view in determining whether this exemption applies. For example, the common-law privilege only attaches to the lawyers advice and not to the subsequent annotations by a non-lawyer as to what he or she thinks that advice was.6 The privilege does not apply when, while the advice was given by a lawyer, he was not exercising at the time the role of a legal advisor - i.e., the person must be in an LA position. Similarly the privilege does not apply when the advice is policy advice.
iii) 2nd Branch:
Here again a restrictive approach must be adopted. Records prepared in contemplation of litigation must meet a two-fold test:
the dominant purpose for which the record is produced is for litigation; and
if the litigation had not actually started there must have been a reasonable prospect of litigation at the time of preparation.7
A difficult task for any investigator when investigating such an exemption is to determine whether the dominant purpose for which a record was produced was for litigation when the purpose is not clear. In many instances, a record could serve for many purposes, one of which could be to assist in litigation. However, in order to be exempted under this provision, the dominant purpose must be litigation. In order to determine the answer to that question, obtain from the department the records they rely on and ask yourself questions such as:
Who requested the records to be produced?
When did he ask the records to be produced?
Why was the record produced?
If there was more than one reason why the record was created what was the reason stipulated in any related records; and
Was litigation reasonably contemplated at the time?
In order to determine whether the litigation was reasonably contemplated at the time the record was received or produced, a reasonable prospect of litigation is required - i.e., litigation must be more than just a vague or theoretical possibility. In order to determine this, you must ask yourself questions, such as:
What would be the purpose of the litigation;
Who does it involve - the parties?
When were the causes of litigation identified?
Had legal advice been sought/a legal opinion been obtained on the possibility of a claim being made by the Crown or on the viability of a claim made against the Crown.
The fact that the records were prepared prior to the comments made or litigation, or that litigation for which they were prepared did not materialize or has since discontinued does not mean that the privilege does not apply.8 However, the litigation privilege may be lost once litigation is terminated.9
iv) Exceptions to the Privilege:
One of the frequent exceptions to a privilege is when the client waives the privilege. It is important to note that only the client can waive the privilege except in rare circumstances where the client endorsed all actions taken by solicitor.10 When determining whether a privilege has been waived, all the circumstances regarding the disclosure of the information must be considered. For example, disclosure of a summary of a legal opinion may not necessarily constitute a waiver of the opinion itself.11 Similarly, disclosure of a 'final' legal opinion does not necessarily constitute a waiver in respect to an earlier 'draft' legal opinion. What you must determine is whether the two legal opinions are very similar in their nature.12
Another exception to the privilege is that the privilege does not protect from disclosure certain facts occurring during the course of the solicitor/client relationship. For example, accounts submitted by the solicitor can be severed in order to remove from it the nature of the advice and then the amounts reflected in the account can be disclosed.
The two branches of the solicitor/client privilege can be defined as follows:
Legal Advice Privilege:
All communications, verbal or written, of a confidential character, between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal advisor's working papers, directly related thereto).
All papers and materials created or obtained specially for lawyers brief for litigation, whether existing or contemplated: Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
The privilege is that of the client, not the solicitor, and is privileged for all time. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
i) The exceptions to the privilege are:
When one is informed waiver of the privilege by the client or implied waiver of a privileged document by its use in court;
Communications between a lawyer and a client are not privileged when the clients attempts to obtain legal advice that would facilitate a crime or fraud;
the privilege extends only to communications and does not protect from disclosure of certain facts discovered in the course of a solicitor/client relationship by either solicitor or client. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
ii) The Federal Court followed the principles established by the S.C.C. in Descoteaux v. Mierzwinski,  1 S.C.R. 860:
- The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client's consent.
Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality.
When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it, except to the extent absolutely necessary in order to achieve the ends sought by enabling legislation.
The Acts providing otherwise in situations under paragraph 2 and enabling referred to in paragraph 3 must be interpreted restrictively. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
For each document under which the privilege is claimed, the department must demonstrate that all the requirements of either one of the two branches of the privilege are met. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.).
The litigation privilege cover materials such as draft pleadings, notes of interviews with witnesses, letters to the client and other material used in the conduct. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
The Honourable Sinclair M. Stevens v. The Prime Minister of Canada (The Privy Council)  4 F.C.R. 89, affirming  2 F.C. 759 (F.C.T.D.)
This was an appeal from a division of the Federal Court Trial Division which held that the narrative portion of the solicitor's accounts submitted to the government in connection with a commission of inquiry were exempt from disclosure under section 23. The appeal from this decision was dismissed.
The Court of Appeal characterized the purpose of the solicitor/client privilege as one involving a tension between the public interest in maintaining free communication between lawyers and clients and the public interest in the disclosure of relevant evidence before the Court. The underlying justification for both approaches is the fair and proper administration of justice.
The Court noted that communications between a lawyer and a client are privileged, subject to exceptions for (1) communications which are themselves criminal or which counsel a criminal act or (2) information which is not a communication but is rather evidence of an act performed by counsel or a mere statement of fact. The narrative portions of solicitors' accounts, which contain a record of the formulating and giving of legal advice, were held to be privileged.
The Court noted that while there must be an element of confidentiality which is essential to the relationship to establish a legal privilege, solicitor/client privilege is not identical with a guarantee of confidentiality, which is much broader. Although all communications within the framework of the solicitor/client relationship will be regarded communications made outside that framework amount to claims for confidentiality, which is broader, not absolute, and must be determined with a different set of criteria.
In the context of the section 23 exemption for information subject to solicitor/client privilege, the Court held that head of the institution must first determine whether a document is subject to privilege, in the context of the common law. If the material is subject to the privilege, then the Court recognized that the discretionary decision under section 23 should be made in light of the purpose and context of:
It is necessary for the government head to determine, before considering the operation of the Act, whether a document is subject to the privilege. If it is, then he or she may refuse disclosure. But the preliminary question is determined not in the context of the Act, but in the context of the common law. If the material is subject to the privilege, then the discretionary decision under section 23, whether to disclose it or not, is done in the context of the Act along with its philosophical presuppositions.
The Court of Appeal held that the Appellant's position as a party to the commission of inquiry or as an individual having an interest in related litigation did not create any special entitlement to the information on his part, although the circumstances of the request may influence how the department head exercises his or her discretion in deciding whether to apply the exemption.
The Court of Appeal upheld the Trial division finding that no waiver of the privilege had occurred by virtue of the disclosure of parts of the records or because the account had been sent to another arm of government for payment, and not to the client directly.
The Court of Appeal upheld the Trial Division's determinations on the exercise of discretion. The Trial Division held that there was a duty to consider disclosure pursuant to the discretion conferred by section 23, that an institution head's decision would not be reviewable on grounds that no reasons supporting the exercise of discretion were given [but see change in criteria for review of discretionary decisions in Supreme Court of Canada decision in Baker v. Minister of Immigration] and that the head was not obliged to consider the reasons for requesting the record in exercising the discretion. The Court concluded that the institution head had, in the circumstances of the case, adequately considered whether to maintain the confidentiality of the privileged information. The Court noted that more information than legally necessary had been disclosed by the institution.
This exemption covers records subject to the common-law solicitor/client privilege (Branch 1) or those records prepared by or for Crown counsel or counsel employed or retained by an institution, for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). The common-law privilege applies to:
all communications, verbal or written, of a confidential character, between a client, or his or her agent, and a legal adviser directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal adviser's working papers directly related thereto); and
papers and materials created or obtained especially for the lawyer's brief for litigation, whether existing or contemplated.
- It is possible for letters or communications passing between opposing counsel to obtain the status of a privileged communication if they are made 'without prejudice' and in pursuance of settlement.
- A briefing note that summarizes the substance of an opinion given by an institution's legal counsel to an institution employee is privileged.
(Orders #52, 123, 170, P-218, P-538, P-660)
- Crown counsel includes any acting in the capacity of legal advisor to an institution covered by the Act. This includes outside counsel retained by the Crown.
- Despite the fact that persons other than the solicitor and the client have access to the record, the privilege is not waived unless there is evidence to indicate that the client has waived the privilege available at common-law. In this case, the record was written to and for persons outside the institution, and was given to an institution official by someone other than the addressee. Only the client can waive solicitor/client privilege and although it is clear that persons other than the solicitor and the client had access to the letter, the Commission ruled that the privilege had not been waived.
- While only the client may waive the privilege, all the circumstances regarding the disclosure of a legal opinion must be considered to determine whether there has been a waiver. Where the legal opinion was provided by the Reeve of the Township to the affected party intentionally and without any restrictions on its use, the disclosure constituted a waiver of the solicitor/client privilege.
- In this case, the Commission ruled that fairness did not require the disclosure of a legal opinion when an institution had disclosed a summary of a legal opinion and not the opinion itself. The Commission stated that the purpose of requiring disclosure of the entire opinion on the basis of implied waiver, would be to prevent any unfairness to the requester, so that the requester would not be misled as to the institution's position or so that the institution could effectively rely on only those elements of the opinion which are advantageous to its position. In a postscript, the Commission noted that the disclosure by the institution of a statement of its legal position represented a useful way of providing some information to the public in circumstances in which it was not required to do so.
- In this case, the Commission found that an implicit waiver of the privilege had occurred in respect of a letter from a lawyer which was kept in the requester's personnel file. The requester was authorized to view the record at any time when she was acting as the executive secretary to the institution. The institution indicated that it was reviewing its practices with a view towards creating a separate filing system for solicitor's letters and removing them from employee's personnel files.
- Where a solicitor for an institution sent a summary of an opinion to another private sector solicitor, he or she waived the privilege. The institution, a Town, had passed a by-law which endorsed all actions taken by the solicitor in the proceedings in question. As a result, the Commission found that the solicitor had acted on behalf of the Town when the summary of the opinion was disclosed and the privilege waived.
- Where Crown counsel sends letters to the appellant's solicitor, who was a third party with an adverse interest in litigation, the privilege is waived.
(Order #M-2, M-11, M-19, M-59, M-61, M-69, and see also Orders #163, 170 and P-227 where draft records were held to be covered by the solicitor/client privilege.)
- The disclosure of a 'final' legal opinion that is subject to solicitor/client privilege does not constitute a waiver in respect of the earlier 'draft' legal opinion. The two opinions are separate responses, produced at different times. The second opinion was provided by the solicitor after consultation with his client in respect of the 'draft'. The earlier 'draft' legal opinion is still subject to this exemption. The solicitor/client privilege applies even though the legal opinion was obtained in response to concerns raised by members of the public.
b) 1st Branch:
- A Crown counsel's memorandum is prepared for use in giving legal advice where it provides an interpretation of an agreement and legal options to consider in attempting to resolve a matter under dispute.
- Where a non-lawyer employee of an institution creates a record that quotes from a legal opinion provided by a lawyer to the institution, the quotes are exempt under this section.
(Order #126 and see contra below, Order #M-213)
- A legal account from a lawyer to his or her client reflects a confidential communication related to legal advice and is therefore exempt under the first branch of the common-law solicitor/client privilege. The account reflects communications of a confidential nature directly related to the seeking, formulating or giving of legal advice between a client and its legal advisor. The Commission, in coming to this decision, considered the case of The Mutual Life Assurance Company of Canada v. The Deputy General of Canada  C.T.C. 155, Supreme Court of Ontario (Toronto Motions Court).
(Orders #M-213, M-258, P-624, M-274, P-667, P-676 (see contra above, Order #126))
- Invoices and accounts from a lawyer to his or her client are not automatically covered by the common-law solicitor/client privilege. The institution must determine whether the contents of the legal account relate in a tangible and direct way to the seeking, formulating or provision of legal advice. The Commission ruled that, in this case, the legal account which set out in summary fashion the steps that the law firm took to complete its work assignment, did not contain legal advice and did not reveal any such advice indirectly. The account did not reveal the subjects which the law firm was asked to investigate, the strategy used to address these issues or the result of the advice. The Commission noted that the intent of the legislation would be ill-served by allowing this exemption to be used to shield a non-substantive record of this nature from public scrutiny, particularly in times when public bodies have to ensure that tax dollars are spent wisely.
(Orders #P-624, M-274)
- Although a legal account arises out of a solicitor/client relationship, this record category differs qualitatively from legal opinions or other communications which purport to provide legal advice from a lawyer to his or her client. The Commission referred to Re Ontario Securities Commission and Greymac Credit Corp.; Re Ontario Securities Commission and Prousky (1983) 41 O.R. (2d) 328 at 337 (Ont. Div. Ct.) where Southey J. stated that legal accounts are evidence of transactions and not subject to the privilege where the advice and communications are severed from them. The Commission noted that the purpose of the Act was to provide a right of access in accordance with the principle that the exemptions are to be narrowly interpreted. As a result, the test was held to apply to legal accounts which would reveal the subjects for which legal advice was sought, the strategy used to address the issues raised, the particulars of any legal advice provided or the outcome of these investigations. This allows for legal accounts to be severed or information relating in a direct a tangible way to the seeking, formulating or provision of legal advice. In this case, legal accounts that disclosed a tally of the hours spent and disbursements made by the law as well as brief narratives of the steps taken to complete the assignments were disclosed.
- The retirement agreement between an institution and a former employee was not exempt under this provision. Contracts are not 'communications'. In addition, the institution's lawyer is not the lawyer for the former employee, and the contract cannot be said to be directly related to seeking, formulating or giving legal advice for existing or contemplated litigation. Even though a wrongful dismissal suit was a possibility, the dominant purpose of the preparation of the agreement was not litigation. The agreement is also not prepared by counsel for the purpose of giving legal advice.
- Records that seek or provide information on a privacy compliance review conducted by the Office of the Information and Privacy Commissioner of Ontario but which do not recommend a course of action based on legal considerations and in which no legal opinion is expressed are not exempt.
- In these instances, the Commission ruled that the exemption did not apply to a record that stated that a response from the legal department was required and to a record that noted the status of a matter involving the City and the appellant. The Commission stated that none of this information was directly related to seeking, formulating or giving legal advice for the purpose of this exemption.
- Views of a City solicitor, contained in a letter sent to the mayor, regarding the job performance of an individual who had made allegations of wrongdoing were not governed by the privilege in this case. While the City argued that the letter was inherently advisory, the Commissioner found that the comments were more administrative than legal in nature.
- A letter written by a solicitor employed by an institution was not exempt where the letter recommends a policy which may be put in place to deal with ministry staff responses to a corporation's proposal. The solicitor had conducted an inquiry on behalf of the ministry's Director of Human Resources. The Commission noted that the letter makes no reference to legal issues and presented no review of the present state of the law. The letter outlined the chronology of events, set out factual findings and presented a proposal. The Commission characterized the letter as an internal investigation report and not a legal opinion.
- In this case, the Commission found that correspondence from the accounting firm to the Board's Director of Legal Services related to the conduct of the forensic audit investigation and was not prepared either for use in giving legal advice or contemplation of or for use in litigation. All reports for information, reports and accounts from the accounting firm were forwarded to the legal branch.
- Where Crown counsel's letter states that the litigation is without merit and that the institution will not be involved, the record is not prepared in contemplation of litigation and this exemption does not apply.
- Where the information sought can be obtained from publicly available court records, it is not reflective of a confidential communication between a client and a solicitor.
- Where the institution had sent the appellant the records to which this exemption is claimed, the exemption, does not apply and the records cannot be considered confidential.
- The privilege did not apply to an invoice submitted to the institution's solicitor who, in turn, forwarded it to the institution for approval and payment. The Commission ruled that the institution's solicitor was merely a conduit for the passing of the documents to the client. The communication originated with the third party and not a legal advisor of the institution.
- Notes prepared for City Staff meetings attended by certain members of City staff, their counsel, and staff and of a local hospital and their counsel and consultants were not confidential communications between a solicitor and his or her client.
- The common-law privilege does not apply to a record created by a non-lawyer employee of an institution that contains a review of legal advice the employee previously obtained from her own lawyer, who was not an employee of the institution. In this context, the common-law privilege only attaches to the lawyer's advice, not to subsequent notations by a non-lawyer as to what that advice was. As well, the client may waive the privilege where legal advice is sent to a third party.
- Communications between solicitor and client include those between a solicitor and an Appeal Assistant of the Rent Review Board, who acts as agent of the Board member in the review and analysis of a Rent Review Hearings Board file. When the draft decision of the board was submitted to the board's legal advisor for advice, it is exempt.
- Where a third party reports that certain legal advice was given by a solicitor to a particular client, the privilege would not attach. However where the record is the device used to communicate the solicitor's advice to the client, it is covered by the exemption.
(Orders P#-402, P-424, M-158)
- Memoranda prepared by one employee for review by another, where neither is a lawyer, is exempt if it summarizes the advice given by legal counsel for the institution. Here, the employee who obtained the advice from the lawyer is acting as an agent of the person seeking the advice so that the solicitor/client relationship existed.
(Orders #170, 150, P-381, P-403)
- Where records are marked up or annotated by Crown counsel for the purpose of giving advice, the exemption applies.
- A note saying that a legal memo is attached or a title page to a legal opinion, which contains a distribution list, is not subject to this exemption.
- Where an investigation into wrongdoing is conducted by Crown counsel, the fact-finding exercise need not be divorced from the advice given concerning the legal implications of those facts. All of the records are exempt.
- The fact that a lawyer reviewed a record that he or she did not create and that is, in itself, unrelated to the provision of legal advice does not bring that record within this exemption.
- Where a letter from one legal counsel to another outlines administrative arrangements, put in place by the lawyer to deal with the transfer of responsibility of a file to a different lawyer, it is not related to the seeking, formulating or giving of legal advice. It is therefore not exempt.
- Records that incorporate legal advice given by an institution's counsel are exempt. In this case, the records contain written notations of the verbal legal advice that had been provided to institution employees from their counsel faring a series of meetings.
- This exemption does not apply to a confidential written communication between a solicitor and client that contains a factual response regarding the status of a pending court application.
- While portions of a record prepared by counsel and retained by an institution were factual in nature, these were intermingled with material prepared for use either in giving legal advice or for use in litigation. As a result, the exemption applied.
(Orders #P-550, P-551)
- Parts of records prepared as a result of an internal workplace allegation of sexual harassment were exempt under this provision. The legal branch of the institution provided advice regarding a memo sent by the investigator to the harassment coordinator and, as a result, the memo was not disclosed. In addition, written legal advice from the institution's legal counsel regarding this matter was exempt. In order to be exempt under this exemption, the communication between solicitor and client must be directly related to seeking, or giving legal advice.
- The privilege did not apply to an invoice submitted to the institution's solicitor who, in turn, forwarded it to the institution for approval and payment. The Commission ruled that the institution's solicitor was merely a conduit for the passing of the documents to the client. The communication originated with the third party and not a legal advisor of the institution. As well, the communication was not 'legal advice' in that it was prepared by forensic and investigative accountants and no recommended course of action based on legal considerations or legal opinion was expressed.
c) 2nd Branch:
- Letters from the prosecuting Crown attorney to the investigating officer or to the Sheriff's officer regarding a particular prosecution are exempt under this provision.
- Two disbursements listed in the legal account and a portion of a narrative description of services provided by a law firm was held to reveal the strategy used to address the issues raised by the lawsuit and the results obtained and therefore were covered by the privilege. In addition, severances were made of privileged information that disclosed the type of legal advice sought and the legal advice provided.
- Ontario Securities Commission documents consisting of lists of questions to be posed to individuals during an enforcement investigation, a memo updating action to be taken in future, a 'to do' list or chronology made by senior enforcement counsel, and background notes setting our facts as understood from interviews with individuals and from reviews of documents do not come within the exemption. The Commission noted that there was no evidence that the records were created for use by anyone other than the author or that the records were used for ongoing or anticipated litigation. As well, the records did not contain legal advice.
(Orders #136, 137, P-236)
- Records prepared in contemplation of litigation must meet a two-fold test: 1. the dominant purpose that the record is produced is for litigation; and 2. there must have been a reasonable prospect of litigation at the time of preparation.
(Orders #49, 52, 56, 68, 123, M-2, M-19, M-86, M-120, M-121, P-585, M-257, M-280, M-281, P-667, P-677, P-710)
- Papers and materials created or obtained especially for the lawyer's brief for litigation, whether existing or contemplated, are privileged. The dominant purpose for the preparation of the document must be the contemplation of litigation and the potential for litigation must be more than a mere possibility. The privilege also includes material of a non-communicative nature such as notes made in preparation for the litigation to assist the lawyer.
(Order #M-86, M-173)
- The dominant purpose for the preparation of the document must be in contemplation of litigation; and there must be a reasonable prospect of such litigation at the time of the preparation of the record--litigation must be more than just a vague or theoretical possibility. Where an institution's solicitor requested that staff prepare notes in respect to a matter that the solicitor expected, would result in a grievance arbitration, the notes were exempt under the 'litigation privilege'. The solicitor swore, in an affidavit, that the dominant purpose for the preparation of the records was contemplation of probable litigation. The fact that the records were prepared prior to the commencement of the litigation, or that the litigation for which they were prepared did not materialize or has since been discontinued, does not mean that the privilege does not apply.
- This exemption did not apply to records prepared as a result of a complaint made to the Equity Advisor regarding alleged unfairness in a job competition. The Commission ruled that the dominant purpose for preparing the report was to respond to a complaint filed by the appellant concerning a job competition, not in contemplation of litigation. The Commission found that the fact that a subsequent Human Rights Commission complaint was filed and that this 'prospect of litigation' was contemplated did not mean that the dominant purpose of creating the records was in contemplation of litigation.
(Orders #P-368, P-467, #M-52, P-613)
- A criminal prosecution file consisting of legal research, correspondence to and from Crown counsel relating to the prosecution, lists of witnesses that may be called and letters regarding matters to be done in preparation for the trial are exempt under the second branch of the exemption. Each of these records was prepared by or for Crown counsel in contemplation of litigation.
- Private investigators' reports, intended for use in litigation, are exempt under the litigation privilege branch of the common-law solicitor/client privilege. The invoices from, and payments to, the private investigators are closely related to their reports and as such are also exempt under this exemption.
- Legal advice from the Director of the Crown Law Office, Criminal, to Crown attorneys regarding legal issues arising from the prosecution of drinking and driving offenses is exempt under this provision. The memorandum provides an interpretation and analysis of various cases and offers suggestions on how to address them in the context of litigation. As a result, the Commission ruled that the record was prepared for use in litigation.
- The privilege applies to papers and materials created or obtained, especially for the lawyers' brief for litigation whether existing or contemplated. The adjuster's reports in this case were created as a result of the claims filed with the institution.
- Records copied for the lawyer's brief for litigation are privileged as long as there was an intention to keep them confidential. In this instance, the common-law privilege remains until the litigation is contemplated.
(Orders P-660, M-86, M-162, M-315, P-701)
- There is no distinction between matters in dispute before a court or a tribunal. Re-employment hearings considered by an administrative tribunal of the Workers' Compensation Board are properly classified as litigation matters. Therefore, counsel's advice to the board is privileged.
- The exemption does not apply to records created during an investigation for sexual harassment where they are not prepared by or for Crown counsel. As well, where the records are prepared to fulfil the institution's obligation to investigate in these circumstances, they are not prepared primarily for use in litigation.
- A hand-written complaint and investigator's notes complied during an investigation by the Ontario Human Rights Commission are used primarily for determining whether a public inquiry is warranted and not for a lawyer's use in contemplation of litigation. The privilege does not apply.
- A police officer's notes that were compiled in the course of an investigation into allegations that the requester was wrongfully convicted of murder are not exempt under this section. The notes were not complied for use in existing or contemplated litigation.
- Stage II grievance reports may not be exempt under this provision where they were not prepared by or for Crown counsel. In this particular, case, the record was prepared by an employee who was not a lawyer. It was prepared in order to brief senior management. Since neither the author nor the recipient of the record was a lawyer, it is not exempt regardless of whether it was prepared in contemplation of litigation.
(Orders #P-454, P-463)
- In this case, an institution retained a researcher to provide advice regarding aboriginal land claims. The dominant purpose of the preparation of the records was for the researcher to comment on work undertaken by another research in the land claims field and to indicate further areas for study. The fact that the material provided by the researcher may have subsequently been used in helping to structure legal advice or in litigation does not alter the fact that the records were not prepared for such purposes originally. As a result, the records are not exempt under this section.
- Information related to the handling of a criminal prosecution gathered and transmitted in the form of a letter from the Ontario Provincial Police (OPP) to a Regional Director of Crown Attorneys for the purpose of drafting a response to a letter of complaint addressed to the Attorney General, was not exempt. The information did not constitute a legal opinion, nor did it provide legal advice on a recommended course of action having legal implications. Similarly, the letter prepared after completion of the trial was not prepared in contemplation of litigation. The dominant purpose of the letter from the OPP was to provide information for the drafting of a response by the Attorney General -- not litigation.
- A letter from a City solicitor to another solicitor regarding negotiations in respect of the City's eventual purchase of a property was not subject to the litigation privilege. The Commission noted that the record was not obtained or created especially for the lawyer's brief for litigation, existing or contemplated, nor was there any evidence as to what the litigation was.
(Orders #M-257, M-296)
- In this case, the Commission ruled that the litigation privilege did not apply. The records concerned an internal workplace matter in which the records were created, according to the Commission, to provide documentary support for contemplated disciplinary action against the requester, rather than in contemplation of litigation.
- Policies and procedures on prosecutions under the Occupational Health and Safety Act was held not to be privileged. The Commission found that while Crown counsel prepared the record, it did not satisfy the second part of the test in that it did not contain a legal opinion. The Commission held that it dealt with policies and administrative procedures, was not based on legal considerations and did not provide a legal opinion based on the state of the law.
- At common law, the solicitor/client privilege may be lost once litigation is terminated. While direct communications between solicitor and client continues to be privileged, derivative communications made in contemplation of litigation cease to be privileged when litigation is completed. This would include reports collected for the litigation and records copied for inclusion in the lawyer's brief for litigation.
Section 23: The Questions
Table of Authorities
The Honourable Sinclair Stevens v. the Prime Minister of Canada (The Privy Council) (February 26, 1997), T-2419-93 (F.C.T.D.)
Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
Order #49, 52, 56, 68, 123, 126, 135, 136, 137, 141, 150, 163, 165, 170, 200, 258, P-218, P-227, P-236, P-277, P-281, P-365, P-368, P-381, P-398, P-402, P-403, P-417, P-403, P-424, P-428, P-441, P-454, P-463, P-467, P-477, P-538, P-546, P-550, P-551, P-579, P-583, P-585, P-586, P-604, P-613, P-624, P-660, P-667, P-676, P-677, P-701, P-710, P-776, P-780, M-2, M-11, M-19, M-52, M-59, M-61, M-69, M-86, M-120, M-121, M-157, M-158, M-162, M-173, M-213, M-233, M-237, M-257, M-258, M-260, M-274, M-280, M-281, M-285, M-291, M-296, M-315 and M-394.
1 Ruby v. Canada (Solicitor General, R.C.M.P.),  F.C.J. No. 779 (June 8, 2000) (F.C.A.)
2. Weiler v. Canada (Department of Justice), , 3 F.C. 617 (T.D.)
6. Ontario Order P-365.
7. See Ontario Orders No. 136, 137 and P-236.
8. Ontario Order M-86 and 173.
9. Ontario Order P-667.
10. Ontario Order M-291.
11. Ontario Order P-579.
12. Ontario Orders M-2, M-11, M-19, M-59, M-61, M-69 and see also Orders 163, 170, and P-227 where draft records were held to be covered by the solicitor/client privilege.