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Crown-Indigenous Relations and Northern Affairs Canada (Re), 2023 OIC 16

Date: 2023-06-14
OIC file number: 3216-01562
Institution file number: A-2016-00988/EC

Summary

The complainant alleged that Crown‐Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld information under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act. The request was for records related to the ownership, sale, reversion or return of lands on or around the Bruce/Saugeen Peninsula, dating from the 1850s to 1980.

The investigation determined that CIRNAC exempted all of the responsive records in their entirety under section 23.

While CIRNAC acknowledged that the information was not subject to solicitor-client privilege, CIRNAC claimed that the records at issue may be subject to litigation privilege and cited several ongoing matters in the Federal Court of Canada as evidence of this.

The Information Commissioner concluded that CIRNAC fell well short of establishing that the records at issue are subject to litigation privilege. Moreover, CIRNAC failed to demonstrate that any of the records at issue were produced or gathered for the dominant purpose of the cited litigation or related litigation.

The Commissioner recommended that the Minister of Crown-Indigenous Relations disclose the records in their entirety.

CIRNAC gave notice to the Commissioner that it would not be implementing the recommendation.

The complaint is well founded.

Complaint

[1] The complainant alleged that Crown‐Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld information under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act in response to a request for records related to the ownership, sale, reversion or return of lands on or around the Bruce/Saugeen Peninsula, dating from the 1850s to 1980.

Investigation

[2] When an institution withholds information under an exemption, it bears the burden of showing that refusing to grant access is justified.

[3] In the present instance, CIRNAC initially took the position that all responsive records were exempted under section 23. During the investigation CIRNAC conceded that section 23 did not apply, yet stated that it intended to review the records to ascertain whether or not portions thereof warrant being withheld under subsection 19(1) (personal information) or subsection 20(1) (third party information). CIRNAC, however, later reversed course, maintaining anew that section 23 applied to the records at issue, while making no additional claims and / or representations in support of the applicability of either subsections 19(1) or 20(1).

Section 23 – Solicitor-Client Privilege

[4] Section 23 allows institutions to refuse to release 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 release information subject to litigation privilege when the information was prepared or gathered for the purpose of litigation.

[5] 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.

[6] 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 is either in progress or is reasonably expected to occur.

[7] Litigation privilege generally expires when the litigation ends, except when related litigation is pending or is reasonably expected to occur.

[8] When these requirements are met, institutions (as the owner of the privilege) must then reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

Solicitor-Client (Legal Advice) Privilege

[9] During the investigation, CIRNAC provided no representations as to how any of the records at issue consist of communications between a lawyer or notary and his or her client, that relates directly to the seeking or giving of legal advice, or that was intended to remain confidential.

[10] Indeed, during the investigation CIRNAC conceded the following:

[…] these records do not contain solicitor-client privilege […] These records do not contain information between a lawyer or notary and his or her client. Rather, they contain information between departmental officials, third party lawyers and individuals, which is not subject to section 23 of the Act.

[11] As CIRNAC did not establish that any of the requirements of solicitor-client privilege are met, the records at issue, or information therein, cannot be withheld under section 23 on this ground.

Litigation Privilege

[12] During the investigation, CIRNAC made the following statements:

  • […] the subject matter [of the records] […] may be related to litigation.
  • […] information subject to the complaint relates to concerns involving interests in various road / shore allowances and lakes / submerged lands within the Bruce / Saugeen Peninsula” and “[t]hese issues are before the courts in active litigation rooted in Aboriginal rights and Treaty rights for which Canada’s liability is sought […];
  • Property interests in these lands remain the subject of ongoing litigation […];
  • Releasing this collection could negatively affect Canada’s defence of the ongoing litigation as the documents refer to issues of ownership and interests in these lands;
  • […] some of the documents were gathered for the purpose of litigation and are therefore protected by litigation privilege or a deemed undertaking not to produce; and
  • The PTFF [“Plaintiff”] references in the upper right corner and the handwritten document ID on the margin are highly likely to have been produced in litigation and therefore could well be subject to the deemed undertaking not to disclose.

[13] CIRNAC also referred to the following litigation matters, which it stated were ongoing at the time of the request: Court files 94-CQ-50872-CM and 03-CV-261134CM and 03-CV-253768-CM3, before the Ontario Superior Court; and Court files C69830 and C69831, before the Ontario Court of Appeal.

[14] Having considered all representations received, it is my view that CIRNAC has fallen well short of establishing that the records at issue are subject to litigation privilege.

[15] The fact that a record “relates to concerns involving interests [in issues]” that “are before the courts” does not establish that such a record was produced or gathered for the dominant purpose of that litigation or for related litigation. Whether or not the records involve property interests in lands that remain the subject of litigation is not the test. The potential negative impact on Canada’s defence of ongoing litigation is also spurious to whether or not litigation privilege applies.

[16] Although in the present instance, I do not doubt that the litigation proceedings referenced by CIRNAC were ongoing at the time of the request, CIRNAC failed to demonstrate that any of the records at issue were produced or gathered for the dominant purpose of that litigation or related litigation.

[17] As CIRNAC failed to satisfy its onus that the records at issue are subject to litigation privilege it is not authorized to refuse access under section 23 on that ground.

Result

[18] The complaint is well founded.

Recommendation

I recommend that the Minister of Crown-Indigenous Relations disclose the entire record.

On February 24, 2023, I issued my initial report to the Minister of Crown-Indigenous Relations setting out my recommendation.

On June 2, 2023, the Director, Access to Information and Privacy Crown-Indigenous Relations, gave me notice that the Minister would not be implementing the recommendation, stating:

We have taken your recommendations into consideration and upon consultation with the Department of Justice, have determined not to release the records in full. The department continues to assert that the information in question is protected by litigation privilege. The documents are integral to three ongoing legal proceedings […]

Although recent amendments to the Act authorize me to order the disclosure of records, this is only with respect to complaints received as of June 21, 2019. As this complaint was received prior to that date, I unfortunately have no authority to order that CIRNAC respond to the request by a specified date. Having made my recommendations to CIRNAC, I must conclude my investigation as I have exhausted my jurisdiction under the Act.

When a complaint falls within the scope of 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. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.

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