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.