Department of Justice Canada (Re), 2022 OIC 13

Date: 2022-02-22
OIC file number: 3218-01559
Institution file number: A-2017-00982

Summary

The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information in response to a request for the name, file number and pleadings of cases filed with the Tax Court of Canada for a specific period, which had section 245 of the Income Tax Act (ITA) as a basis for a reassessment by the Canada Revenue Agency. The information at issue has been protected under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act.

When responding to the request, Justice created a two‐page printout, generated from information stored in its iCase database, through a search for cases involving section 245 of the ITA within an “issues” field. During the OIC’s investigation, Justice further retrieved the requested pleadings and entirely exempted them under section 23 of the Act.

The investigation showed that although Justice opted to generate a list of relevant cases through information inputted by legal counsel into its iCase database, it did not establish that the identification of information responsive to the request hinged on information subject to either legal advice privilege or litigation privilege. Therefore, Justice could not justify the application of section 23. The Information Commissioner recommended that Justice disclose the responsive records in their entirety.

Justice gave notice to the Information Commissioner that it would not be implementing the recommendation and remains of the view that disclosure of the information would lead to indirect access to privileged information.

The complaint is well founded.

Complaint

[1]      The complainant alleged that the Department of Justice Canada (Justice) had improperly withheld information in response to a request for the name, file number and pleadings of cases filed with the Tax Court of Canada for a specific period, which had section 245 of the Income Tax Act (ITA) as a basis for a reassessment by the Canada Revenue Agency. The information at issue has been protected under section 23 (solicitor‐client and litigation privilege) of the Access to Information Act.

Investigation

Section 23: solicitor-client and litigation privilege

[2]      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.

[3]      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.

[4]      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.

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

[6]      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?

[7]      When responding to the request, Justice created a two‐page printout, containing some but not all of the requested information (e.g., the name and file number of the cases in question).

[8]      During the investigation, Justice further retrieved the requested pleadings, which contain all of the requested information.

[9]      According to Justice both the two‐page printout created upon receiving the request, and the pleadings (which contain all of the requested information), are subject to both solicitor-client privilege and litigation privilege.

[10]    By way of explanation, Justice stated that:

• the two‐page printout was generated from information stored in its iCase database, through a search for cases involving section 245 of the ITA within an “issues” field;
• ‐the “issues” field is populated by an experienced tax litigator at the early stages of the litigation process (i.e. when a tax appeal is received) and reflects the counsel’s views on the potential legal issues raised in the case;
• information within the “issues” field is therefore part of Justice’s legal advice to its client, the Canada Revenue Agency; and
• the information is also entered into iCase for the dominant purpose of litigation.

[11]    With regard to the pleadings, Justice conceded that pleadings filed with the Court are not, in the ordinary course, subject to solicitor‐client or litigation privilege. However, in the present instance, Justice maintains that the pleadings could only be identified as responsive to the request as a result of Justice’s legal advice and litigation work product contained in the iCase database. Thus, disclosing the responsive pleadings would in turn, reveal privileged information entered and retrieved out of its iCase database.

[12]    Having carefully considered Justice’s representations and the records responsive to the request, I am not satisfied that section 23 applies.

[13]    Justice did not establish that the identification of pleadings responsive to the request, through a reasonable search for responsive records, required the legal advice of counsel. Although Justice opted to generate a list of relevant cases through information inputted by legal counsel into its iCase database, it did not establish that the identification of information responsive to the request hinged on information subject to either legal advice privilege or litigation privilege.

[14]    While input of information in the iCase database might serve as a channel of privileged communication between counsel and client, I am of the view that the information used to generate the responsive list is not privileged. To this effect, the population of the issues field with the mention “GAAR’’ does not reveal any privileged information. It is simply a categorization of the appeal based on the legal disposition it concerns, namely section 245 of the ITA.

[15]    The pleadings in question explicitly refer to section 245 of the ITA and the GAAR. It is apparent on the face of the pleadings that they pertain to cases involving section 245 of the ITA, filed with the Tax Court of Canada during the relevant timeframe. Identifying these records does not require the legal advice of counsel.

[16]    The fact that Justice opted to identify these cases through a search of information inputted into iCase by counsel, does not transform publicly available pleadings – for which no privilege applies – into information that warrants being withheld under section 23.

[17]    I am also not satisfied that a list generated for the dominant purpose of facilitating the identification of publicly available records responsive to an access request is subject to either litigation or solicitor‐client privilege. As noted above, populating the term “GAAR” in the issue field does not require legal expertise, and generating a list based on this characteristic does not reveal any legal analysis or litigation strategy. Thus, I am not satisfied that the records were created for the dominant purpose of litigation nor do they constitute a communication related to the seeking or giving of legal advice between counsel and client intended to remain confidential.

[18]    As a result, I conclude that the records do not meet the criteria for solicitor‐client or litigation privilege.

Result

[19]    The complaint is well founded.

Recommendation

[20]    I recommend that the Minister of Justice:

1. Disclose the responsive records in their entirety;
2. Email a copy of the response letter to the OIC’s Registrar (Greffe-Registry@oci-ci.gc.ca).

[21]    On November 19, 2021, I issued my initial report to the Minister of Justice setting out my recommendation.

[22]    On February 17, 2022, the Associate Deputy Minister of Justice responded on behalf of the Minister. She gave me notice that Justice would not be implementing my recommendation and remains of the view that disclosure of the information would lead to indirect access to privileged information.

Section 41 of the Access to Information Act provides a right to the complainant who receives this report 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.