Department of Justice Canada (Re), 2021 OIC 9

Date: 2021-04-14
OIC file number: 3217-00342
Institution file number: A-2016-01834/SS

Summary

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under section 23 (legal advice and litigation privilege) of the Access to Information Act in response to an access request for legal fees related to a specific litigation file. Justice claimed solicitor-client privilege to disbursements and details of expenses included in a cost-recovery report. While the Information Commissioner agreed that disbursements are subject to a presumption of privilege, her investigation determined that the presumption was rebutted as there was no reasonable possibility that an assiduous inquirer could use the information at issue to deduce or otherwise acquire communications protected by the privilege. The Commissioner therefore recommended that Justice disclose all information initially withheld pursuant to section 23 of the Act. Justice gave notice that the recommendation would be implemented. The complaint is well founded.

Complaint

[1]      The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under section 23 (Legal advice and litigation privilege) of the Access to Information Act in response to an access request for legal fees related to Justice’s file numbered 8518115.

Investigation

Section 23: legal advice 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 legal advice, 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]      The records consist of a four-page cost-recovery report for specific cases outlined in the access request. The report contains disbursements incurred in relation to these cases and details of expenses, all of which have been withheld under section 23 of the Act. 

[8]      During the investigation, Justice confirmed claiming solicitor-client privilege over this information and indicated that the privilege applies because the breakdown of legal billings provides a summary or history of what counsel has done in preparation for a case. Justice further argued that, in this case, specific disbursement information was privileged as it revealed action taken by counsel in order to prepare for the case. Justice relied on the decision of the Supreme Court of Canada in Maranda v. Richer, 2003 SCC 67, which creates a presumption that information in lawyers’ bills of account are privileged.

[9]      I agree that disbursements are subject to a presumption of privilege, as provided by the Maranda decision. However, this presumption is rebutted when there is no reasonable possibility that an assiduous inquirer, aware of background information available to the public, could use the information to deduce or otherwise acquire communications protected by the  privilege see Ontario (Ministry of the Attorney General) v. Ontario (Assistant Information and Privacy Commissioner), 2005 CanLII 6045 (ONCA), para. 12; see also Kalogerakis c. Commission scolaire des Patriotes, 2017 QCCA 1253).

[10]    Having reviewed the evidence and representations before me, I am of the view that the presumption of privilege is rebutted in relation to the information at issue and, consequently, it is neutral information which is not subject tothe privilege. The information at issue includes publicly known information, and more generally, the information is insignificant to the point where I am not convinced that there is a reasonable possibility that an assiduous inquirer could use it to deduce or otherwise acquire privileged information. In light of the above, I conclude that the information does not meet the requirements of the exemption.

Results

[11]    The complaint is well founded.

Recommendation

I recommend that the Minister of Justice:

• Disclose all information initially withheld pursuant to section 23 of the Act in the responsive records;
• Email a copy of the response letter to the Office of the Information Commissioner’s Registrar (Greffe-Registry@oci-ci.gc.ca).

On January 26, 2021, I issued my initial report to the Minister of Justice setting out my recommendation.

On March 5, 2021, the Deputy Minister of Justice gave me notice that Justice has implemented my recommendation. The complainant has confirmed receipt of the records.

Section 41 of the 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.