Sinclair Stevens v. Prime Minister of Canada, docket T-2419-93

     T-2419-93

         IN THE MATTER OF the Access to Information Act,

         S.C., 1980-81-82, Chapter 111, Section 44

         (the "Act");

         AND IN THE MATTER OF the Honourable Sinclair Stevens;

         AND IN THE MATTER OF the Prime Minister of Canada

         (The Privy Council).

B E T W E E N:

     THE HONOURABLE SINCLAIR STEVENS

     Applicant

     - and -

     THE PRIME MINISTER OF CANADA

(THE PRIVY COUNCIL)

         Respondent

     REASONS FOR ORDER

ROTHSTEIN, J.:

     This is an application under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1, for a review of a decision of the Information Commissioner. The applicant has sought from the Privy Council Office:

All legal accounts submitted by and cheque requisitions or authorizations, subsequent to February 15th, 1987, until the present, [December 9, 1992], for David W. Scott of Scott and Aylen; Edward P. Belobaba of Gowling and Henderson; and Marlys Edwardh of Ruby and Edwardh relating to the Commission of Inquiry into Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens which commenced on Monday, June 16th, 1986, and is sometimes referred to as the Parker Commission.

     - 2 -

     The applicant was provided with approximately 336 pages of legal accounts, receipts and other related documents. Typically the legal accounts showed the names of the lawyer providing the services rendered, the dates on which the services were rendered, and the time spent each day. Disbursements were listed in detail. However, the narrative portions on 73 pages of the disclosed accounts were expurgated on the basis of solicitor-client privilege.¹ Section 23 of the Access to Information Act provides:

23.      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.

     It is the refusal to disclose the narrative portions of the statements of account that gives rise to this application. The applicant submits:

1.      The narrative portions of the statements of account are not subject to solicitor-client privilege and they should be disclosed;

2.      Alternatively, even if the narrative portions of the statements of account are privileged, the respondent waived privilege and they should be disclosed; and,

3.      Alternatively, the head of the Privy Council Office did not exercise discretion in accordance with the Access to Information Act, and the matter should be remitted for redetermination.

Privilege

     Section 2 of the Access to Information Act provides that, in principle, government information should be available to the public. Necessary exceptions to a person's right of access should be limited and specific. The applicant submits that these principles require the Court to narrowly construe the solicitor-client privilege claimed under section 23 of the Act.

     The Act does not define "solicitor-client privilege". In access cases, the courts have resorted to the common law definition arising from a substantial, though somewhat mixed, body of law. The applicant relies on a line of cases which he says stands for the proposition that solicitors' accounts are not privileged at common law. He says that a distinction must be drawn between the seeking and obtaining of legal advice, which is privileged, and actions or records pertaining to actions of lawyers (presumably what the narratives of a solicitor's account would disclose), which are not privileged. See, for example, Re Ontario Securities Commission and Greymac Credit Corp. (1983), 41 O.R. (2d) 328 (Div. Ct.), Khoury v. Khoury (1991), 306 A.P.R. 150 (N.B.Q.B.), Law Society of Prince Edward Island v. Prince Edward Island (Attorney General) (1994), 382 A.P.R. 217 (P.E.I.S.C.T.D.), and Re Russell & DuMoulin (1986), 9 B.C.L.R. (2d) 265 (S.C.).

     Applicant's counsel says at most it is necessary for the Court to review the accounts to see if they contain legal advice. He concedes that if they do (though he believes this unlikely), only those portions would be subject to solicitor-client privilege. Finally, on this point he refers to Order P-624, Appeal P-9300242 February 8, 1994 and Order P-676, Appeal P-9300343 May 11, 1994 of the Information and Privacy Commissioner of Ontario.² In those decisions, the Commissioners point out that the common law position on whether legal accounts, in whole or in part, are subject to solicitor-client privilege is unclear. The approach adopted by the Information and Privacy Commissioner of Ontario is stated at page 7 of Order P-676:

. . . for a legal account to qualify for exemption under section 19 of the Act, its content must relate in a direct and tangible way to the seeking, formulating or provision of legal advice.

From a practical perspective, the test will be satisfied where the disclosure of information contained in the account would reveal the subject(s) 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 approach reflects the fact that some information contained in a legal account may relate to the seeking, formulation or provision of legal advice, but also allows the principle of severance to be applied to the record in a predictable fashion.

     Another line of authority takes a comprehensive view of solicitor-client privilege. In a seminal case on this point in the Exchequer Court, Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27 (Ex. Ct.) two principles were laid out, one arising from the confidential nature of the relationship between solicitor and client, and the other arising in respect to the preparation of a lawyer's brief for litigation. It is the former principle that concerns us here, as stated at page 33:

(a)      all communications, verbal or written, of a confidential character, between a client 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) are privileged. . . .

     Solicitor-client privilege was affirmed as a substantive and not merely an evidentiary rule by the Supreme Court of Canada in [1980] 1 S.C.R. 821">Solosky v. The Queen, [1980] 1 S.C.R. 821 at 839:

One may depart from the current concept of privilege and approach the case on the broader basis that ... the right to communicate in confidence with one's legal adviser is a fundamental civil and legal right, founded upon the unique relationship of solicitor and client...

     In [1982] 1 S.C.R. 860">Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, Lamer J. (as he then was) expanded on the nature of the privilege as a substantive right. He approved of the approach taken by Wigmore (8 Wigmore, Evidence, para. 2292 (McNaughton rev. 1961)) at pages 872-73:

Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

     Lamer J. went on to formulate the substantive rule for solicitor-client privilege at page 875:

1.      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.

2.      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.

3.      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 the enabling legislation.

4.      Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.

                                 [emphasis added]

     It can be inferred from this expression of the right, that solicitor-client privilege should tend to be treated comprehensively rather than restrictively.³ Conflict between the right to disclosure and the right to keep communications between solicitor and client confidential should be decided in favour of confidentiality. The right to keep such information confidential is to be maintained unless interference with it is "absolutely necessary". Halvorson J.A. reiterated the point in International Minerals & Chemicals Corp. (Canada) Ltd. v. Commonwealth Insurance Co. (1991), 89 Sask. R. 1 (C.A.):

To engage solicitor-client privilege, it must be shown that the communication or document was made confidentially for the purpose of legal advice. Those objectives must be construed broadly. Where there is a continuum of communications and meetings between the solicitor and client, and information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, the privilege will attach to those communications and documents...4

                                 [emphasis added]

    

     [1982] 1 S.C.R. 860">Descôteaux is also instructive in respect to the types of communications and documents included within the scope of solicitor-client privilege because it involved the disclosure of a legal aid application. There is no implication that the legal aid application contained legal advice. Indeed, it would appear to have contained information about the client's ability to pay. Lamer J. held at page 876:

The items of information that a lawyer requires from a person in order to decide if he will agree to advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently.

     The implication again is that solicitor-client privilege is to be construed broadly in terms of the types of documents and information that it covers. More specifically, there is a line of authorities that holds, contrary to the cases argued by the applicant, that legal accounts or bills of costs fall within the protection of solicitor-client privilege. See: Chant v. Brown, [1851] 9 Hare, 735, Turton v. Barber, [1874] L.R 17 Eq. 329, Mutual Life Assurance Co. of Canada v. Deputy Attorney General of Canada (1984), 84 D.T.C. 6177 (Ont. H.C.J.), Re Playfair Developments Ltd. v. Deputy Minister of National Revenue (1985), 85 D.T.C. 5155 (S.C.O.), Taves v. Canada, [1993] B.C.J. No. 1713 (B.C.S.C.). In my view, this line of authority is underlaid by the substantive rule of solicitor-client privilege formulated by the Supreme Court of Canada in [1982] 1 S.C.R. 860">Descôteaux and the dicta of the Exchequer Court in Susan Hosiery. Therefore, in this case, solicitors' accounts are directly related to the seeking, formulating or giving of legal advice or assistance. They are protected by solicitor-client privilege.

     The applicant argued that, to the extent that the solicitor-client privilege could be construed narrowly or broadly, in cases involving the Access to Information Act, section 2 of the Act indicates that the narrow interpretation should be preferred. I cannot accept this approach. Solicitor-client privilege is a substantive rule of law, and its breadth is not meant to vary depending on whether it is invoked for the purposes of the Access to Information Act or in some other context. More specifically, in my view of the law, solicitor's accounts are privileged, and this would apply under the Access to Information Act as well as other contexts.

Waiver     

     The applicant says that if solicitor-client privilege does apply to the narrative portions of solicitor's accounts, privilege has been waived in this case. First, he says that if privilege existed it was between counsel and Commissioner Parker who conducted an independent Commission of Inquiry. When the solicitors' accounts were sent by Commissioner Parker to the Privy Council Office they were disclosed to a third party which constitutes waiver. Second, he says that the type of information included in the narrative which the respondent does not wish to disclose has already been disclosed. For example, one complete account without deletions was disclosed outlining the nature of the services performed. In another case, a telephone record indicating the person with whom counsel spoke was disclosed. The applicant says that this constitutes partial waiver and on the principles of consistency and fairness all the privileged material must now be disclosed. Third, the applicant says the disclosure of those portions of the accounts comprising the names of the lawyer providing the services rendered, the dates on which the services were rendered, and the time spent each day, constitute partial waiver, and again this dictates that the accounts must be disclosed in their entirety.

     The applicant's submissions raise a number of questions:

1.      Who are the parties to the solicitor-client relationship that gives rise to the right of privilege? Initially, during counsel's argument, there was some doubt as to whether the Privy Council Office was party to the solicitor-client relationship. However, I think it is clear from the evidence, including the solicitors' accounts, that Commissioner Parker was the client and not the Privy Council Office. In the course of the hearing, the respondent took the position that Commissioner Parker was the client, and indeed, the applicant did not dispute this position. This is in keeping with the status of commission counsel in general, as observed by Sopinka J. in "The Role of Commission Counsel" (1989-90), 12 Dal. L.J. 75 at 77:

Although the jurisprudence is sparse with respect to the legal status of commission counsel, there is general agreement that he is the commissioner's counsel. His conduct must be governed at all times with this in mind.

     I am satisfied that the solicitor-client relationship was between counsel and Commissioner Parker, and if solicitor-client privilege was to be invoked, it was for Commissioner Parker to do so.

2.      Is there evidence that privilege was claimed? The applicant submits that there is no direct evidence from Commissioner Parker of his claim for privilege. The only evidence that Commissioner Parker claimed privilege is in the affidavit of Peter Doody, assistant counsel to the Commission. Paragraphs 3, 4 and 5 of his affidavit state:

3.      In August, 1989, I was made aware by the Information Commissioner of a request under the Access to Information Act for documents from the Privy Council Office relating to the Commission. I understood the request to be for legal accounts submitted by Commission Counsel, David Scott, Marlys Edwardh and Edward Belobaba, in respect of their work for the Commission.

4.      In September 1989, I consulted with the Honourable W.D. Parker by telephone on this request and was instructed by him that he would not waive his solicitor-client privilege over the material to which access was sought. By letter dated September 8, 1989, I so advised the Information Commissioner.

5.      These instructions have remained unchanged.

     Applicant's counsel says that the evidence given by Mr. Doody is hearsay, and that while his affidavit is admissible to show that Commissioner Parker made the statement, it is not admissible to prove the truth of the statement. Here, no issue arises as to the truth of the statement. The concern is not that Mr. Doody is recounting what Commissioner Parker said about some factual occurrence. The question is simply whether Commissioner Parker claimed solicitor-client privilege and whether he would waive it. I consider Mr. Doody's affidavit sufficient to prove that Commissioner Parker claimed solicitor-client privilege and that he would not waive it.

3.      What is the relationship between Commissioner Parker and the Privy Council Office? The evidence is that the accounts in question were submitted to the Parker Commission. It appears that they were then forwarded to the Privy Council Office for payment. If the Privy Council Office is a third party, then disclosure to that third party would constitute a waiver of the solicitor-client privilege. The principle of waiver as a result of disclosure to a third party has been stated by Manes and Silver in Solicitor-client Privilege in Canadian Law (Toronto: Butterworths, 1993) at 207:

In essence, where the client authorizes the solicitor to reveal a solicitor-client communication, either it was never made with the intention of confidentiality or the client has waived the right to confidentiality. In either case, there is no intention of confidentiality and no privilege attaches. For example, it has been held that documents prepared with the intention that they would be communicated to a third party, or where on their face they are addressed to a third party, are not privileged.

See also: R. v. Bencardino and DeCarlo (1974), 2 O.R. (2d) 351, Nova Scotia Pharmaceutical Society v. R. (1988), 88 N.S.R. (2d) 70 at 72-75 (T.D.), and Ioannidis v. Ioannidis (1981), 27 B.C.L.R. 397 at 399.

     The respondent claims that the Privy Council Office is not a third party on the basis that the Parker Commission and the Privy Council Office are both government departments, and such disclosure between them is not disclosure to a third party.

     Two Orders in Council were made in respect of the Parker Commission. The first, Order in Council P.C. 1986-1139, authorized Chief Justice Parker under section 37 of the Judges Act, R.S.C. 1985, c. J-1, and Part I of the Inquiries Act, R.S.C. 1985, c. I-13, to inquire into and report on the facts following allegations of conflict of interest in respect to the applicant. In this Order in Council, it was provided for the Commissioner:

(b)      to engage the services of such staff and counsel as he may consider necessary or advisable, at such rates of remuneration and reimbursement as may be approved by the Treasury Board;

...

The Committee do further advise that the Commissioner be directed to submit a report in both official languages to the Governor in Council as soon as possible, and to file his papers and records with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.

                                 [emphasis added]

     The second, Order in Council P.C. 1986-1362, provided that for the purposes of the Financial Administration Act, R.S.C. 1985, c. F-10, the Parker Commission was designated as a government department:

(a)      pursuant to paragraph (b) of the definition "department" in section 2 of the Financial Administration Act, to designate the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens as a department for the purposes of the Financial Administration Act; and

(b)      pursuant to paragraph (b) of the definition "appropriate Minister" in section 2 of the Financial Administration Act, to designate the Prime Minister as the appropriate Minister with respect to the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens.

     I am satisfied that on the basis of Order in Council P.C. 1986-1362 that the Parker Commission was a department of government for financial purposes and in particular the payment out of government funds of the costs of the Commission including the costs of legal counsel. This finding, of course, does not detract from the independence of the Commission in pursuing its terms of reference. It only recognizes, as a practical matter, that when the government appointed the Commission, it was required to fund it out of public funds, and to do so, there had to be compliance with the Financial Administration Act.⁵ The practice of maintaining the independence of a commission, while requiring a commission to follow government requirements as to keeping accounting records, is discussed by Anthony and Lucas in Handbook on the Conduct of Public Inquiries in Canada, (Toronto: Butterworths, 1985) at 42:

While the commissioner will agree to follow government guidelines as to audit requirements and record keeping, the decision as to whether any expense is justified or warranted, both initially and on an ongoing basis, must be left solely to the commissioner. To do otherwise would be to permit budgetary controls to fetter the inquiry's independence and affect its ability to fulfil its mandate.

It is in this limited sense for compliance with the Financial Administration Act that the Commission is a department of government.

     In general, with respect to solicitor-client privilege as between government institutions, "[t]he release of privileged information by one institution to another would not normally constitute a waiver as this action is internal to the government, the ultimate beneficiary of the privilege" see: McNairn and Woodbury, Government Information: Access and Privacy (Scarborough: Carswell, 1992) at 3-36.

     In Weiler v. Canada (Department of Justice) (1991), 37 C.P.R. (3d) 1 (F.C.T.D.) at page 6, it was held that solicitor and client privilege attaches to confidential professional communications between government agencies and their salaried legal officers. The client in that case was the executive branch of the Government of Canada, which was held at page 6 to include: "the various ministries such as the Department of Agriculture." See also: Canada v. Central Cartage Co. (1987), 10 F.T.R. 225 at 236-238. In this case, the connection between the Parker Commission and the Privy Council Office was particularly close because the Prime Minister was the Minister responsible for both departments.

     For these reasons, I do not see how the fact that the Commission submitted its solicitors' accounts to the Privy Council Office for payment purposes can be construed as the giving of accounts to a third party, thereby constituting waiver of the privilege over the accounts. I infer that the reason the accounts were given to the Privy Council Office reflects the administrative arrangement between the Parker Commission as one department of government and the Privy Council Office as another for payment of the Commission's expenses. Therefore, solicitor-client privilege has not been waived on the basis of disclosure to a third party.

     Adding to the complexity of the matter is the fact that although the Privy Council Office was not the client as such, it is the Privy Council Office to whom the access request was made and who decided not to disclose on the grounds of solicitor-client privilege. However, I have found that Commissioner Parker was entitled to solicitor-client privilege and he said he did not wish to waive that privilege. The Privy Council Office was complying with Commissioner Parker's instructions so that solicitor-client privilege could be maintained.

4.      Was disclosure compulsory and is that a defence to waiver? If, contrary to my finding, the submission of the solicitors' accounts to the Privy Council Office constitute communication to a third party, the respondents argue that the submission of the accounts was compulsory, and therefore no implied waiver occurred.

     In S & K Processors Ltd. v. Campbell Avenue Herring Producers Ltd. et al., [1983] 4 W.W.R. 762 (B.C.S.C.) McLachlin J. (as she then was) observed at pages 765-6 that:

In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent.

Thus, "where a statute requires disclosure, e.g., of a report, no voluntariness is said to be present and no implied waiver occurs." (See: Manes and Silver, Solicitor-client Privilege in Canadian Law, supra, at 191).

     In general, the accounting records of commissions of inquiry "ultimately have to form part of government records, or be subject to government audit," see: Anthony and Lucas in Handbook on the Conduct of Public Inquiries in Canada, supra at 41. Order in Council P.C. 1986-1139 requires the Commissioner "to file his papers and records with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry." Thus, disclosure to the Privy Council Office was compulsory.

     It is not entirely clear whether the accounts in question were submitted to the Privy Council Office during the course of the inquiry or after its conclusion. There is an indication that the accounts may have been submitted on an ongoing basis for the purposes of payment. However, in the circumstances, nothing turns on when the accounts were submitted to the Privy Council Office. There was an overall requirement that they ultimately be sent, and therefore their disclosure to the Privy Council Office was compulsory.

     The applicant relies on Professional Institute of the Public Service of Canada v. Canadian Museum of Nature (1995), 63 C.P.R. (3d) 449 (F.C.T.D.) in which the Canadian Museum of Nature was found to have waived privilege when it voluntarily released information to the Auditor General. That case is distinguishable not only because I have found that disclosure to the Privy Council Office was compulsory, but because of the unique legal status of auditors. Noel J. states at 456:

Because of the higher duty which they owe to the shareholders, external auditors are bound to disclose otherwise privileged information which comes to their attention and which may have a material impact on the financial statements under audit so that the release of such information to the auditors is a de facto abandonment of the privilege by the client.

The Auditor General is by law the auditor of the Museum. As such his responsibilities and functions are essentially the same as those of external auditors. He acts as a "public watchdog" which demands in turn that he maintain total independence at all times.

     While it is argued that the Auditor General is "independent" and that the release of information from the Museum to the Auditor General is parallel to the release of information by the Parker Commission to the Privy Council Office, I have already indicated that for financial purposes, the Commission is a department of government. There is no factor of independence between the Parker Commission and the Privy Council Office that is analogous to the independence of the Auditor General. I conclude that if disclosure to the Privy Council Office can be construed as a disclosure to a third party such disclosure was compulsory, and therefore did not constitute waiver.

5.      Has the inadvertent disclosure of some material amounted to waiver? The materials contain one legal account in possession of the applicant, which discloses:

    

     Re: Sinclair Stevens Inquiry

TO ALL PROFESSIONAL SERVICES RENDERED from:

May 30, 1987 up to and including June 29, 1987.

To research as per Chief Justice Parker's instructions.

AMOUNT OWING:              24, 662.50

     There is also a disbursement memo indicating the parties to a telephone conversation. The applicant says this partial disclosure constitutes waiver. I do not agree. It is obvious this disclosure was inadvertent.

     There is ample authority to the effect that inadvertent release does not necessarily constitute waiver. See: Western Canada Investment Company Ltd. v. McDiarmid, [1922] W.W.R. 257 (Sask. C.A.), Double-E. Inc. v. Positive Action Tool Western Ltd., [1989] 1 F.C. 163 (T.D.), and Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266 (T.D.). Moreover, I agree in this case with Manes and Silver in Solicitor-client Privilege (supra, at page 201), who have taken a clear position on the issue of opposing counsel using inadvertent release to argue waiver of solicitor-client privilege.

...it would be clearly unjust to allow the opposing solicitors to take advantage of the information they have obtained, especially by countenancing such conduct by concluding that there has been a waiver of the privilege because confidentiality has been lost.

The authors are of the view that where an obviously privileged communication has inadvertently come to the attention of the opposing solicitors and they have sought to take advantage of it, the proper disposition is a finding of non-waiver...

     I find in this case that the inadvertent release of the account and the disbursement memo does not constitute waiver of solicitor-client privilege.

6.      Does the disclosure of the amounts and hours as well as details of disbursements amount to waiver? The applicant submits that the Privy Council Office, in disclosing part of the records sought (the amounts and hours as well as the details of disbursements), has waived privilege to the whole (the full accounts including the expurgated narratives). He relies on a line of authority developed in S & K Processors, (supra), in which McLachlin J. (as she then was) stated at 764:

Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication.

There may, however, be circumstances in which the disclosure of part of a communication does not constitute waiver of the whole.

     The basic rule was stated in Great Atlantic Insurance Co. v. Home Insurance Co., [1981] 2 All E.R. 485 (C.A.) per Templeman L.J. at 490:

In my judgment, the simplest, safest and most straightforward rule is that if a document is privileged, then privilege must be asserted, if at all, to the whole document unless the document deals with separate subject matters so that the document can in effect be divided into two separate and distinct documents each of which is complete.

It appears that the rule in Great Atlantic has been confined to circumstances in which partial disclosure has occurred in the context of a trial. (See, for example: G.E. Capital Corp. v. Bankers Trust, [1995] 2 All E.R. 999). There is also a line of authority that has developed to the effect that it is necessary to consider all the circumstances in determining whether a partial disclosure constitutes an attempt to mislead so that privilege over the entire document is lost. In Lowry v. Canadian Mountain Holidays Ltd. (1984), 59 B.C.L.R. 137, Finch J. stated at page 142-43:

I do not think it would be in the interests of justice to drive litigants or their professional advisers to these or other means of avoiding the effect of a "single subject matter" rule on the question of waiver. Whether the document relates to a single subject matter or not, it is, in my view, preferable to look at all the circumstances of the case, and to ask whether the defendants' conduct in disclosing that part of the report concerning factual observations can be taken to mislead either the court or another litigant, so as to require the conclusion that privilege over the rest of the report has been abandoned.

                                 [emphasis added]

     Lowry has been followed by the British Columbia Court of Appeal in Power Consol. (China) Pulp Inc. v. B.C. Resources Invt. Corp. (1988), 32 B.C.L.R. (2d) 320, and more recently in the context of the Access to Information Act by the New Brunswick Court of Queen's Bench, Trial Division, in Makin v. New Brunswick (Attorney General) (1996), 141 D.L.R. (4th) 352 (N.B.Q.B.T.D.) .

     In my opinion, the approach of Finch J. in Lowry is appropriate for the purposes of determining whether, in the context of the Access to Information Act, privilege with respect to documents that have been disclosed in part has been waived in whole. While it cannot be ruled out that in some circumstances questions of misleading and unfairness might arise under the Access to Information Act, I would think that such issues would arise infrequently because of an oversight by the Information Commissioner and by the Court.

     In the present case, the Privy Council Office expurgated the narrative portions because its officials considered them to be subject to solicitor-client privilege, and disclosed the balance of the contents of the accounts because its officials believed (incorrectly in my view) that it was not subject to solicitor-client privilege. Certainly, in the context of disclosure under the Access to Information Act, the partial disclosure of privileged information cannot be taken as an attempt to cause unfairness between parties, or to mislead an applicant or a court, nor is there any indication that it would have that effect. I therefore find that the disclosure of portions of the solicitors' accounts does not constitute waiver of solicitor-client privilege.

Discretion

     On this point, applicant's counsel says that nothing in the decision of the Privy Council Office or the Information Commissioner gives any reasons for the exercise of discretion by the Privy Council Office not to disclose the privileged information. He says that since no reasons were issued by the Privy Council Office, it is impossible to know whether the discretion conferred on the head of the Privy Council Office by section 23 of the Access to Information Act was exercised on a properly principled basis. Further, he submits that the applicant has a particularly compelling reason for seeking disclosure in this case and that should have been taken into account in the exercise of discretion.⁶ He says that if it is decided that the narrative portions of the accounts are privileged, but that discretion was not properly exercised, the matter should be remitted to the head of the Privy Council Office for redetermination.

     The applicant's submissions raise three questions:

1.      Was a discretionary decision made? As pointed out by Strayer J. (as he then was) in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.), affirmed (1993), 154 N.R. 319 (Fed. C.A.) at page 149:

It will be seen that these exemptions require two decisions by the head of an institution: first a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.

     The decision in this case is on a printed form entitled: "Record of Decision". Insertions particular to this case are brief:

Disclose except for exemptions indicated in the attached schedule.

...

Disclose severed version.

...

Discretionary Exemption s. 23 of the Act.

...

     The attached schedule states:

Section 23 -- Solicitor-client Privilege

Information the disclosure of which would reveal solicitor-client privilege is to be exempted at the following pages: [73 pages are listed]

The information being exempted describes the services performed by the counsel.

     The applicant was advised of the decision by a letter dated May 28, 1993. The letter states in part:

Certain information has been severed pursuant to section 25 (severability) of the Access to Information Act. This information qualifies for exemption under section 19(1) and section 23 of the Act.

Counsel agree that the letter, while it gives notice of the decision, does not itself constitute a decision.

     Considering the Record of Decision, and the attached schedule, it is clear that both types of decisions referred to in Kelly were made in this case. The references in the schedule to section 23 and solicitor-client privilege demonstrates that a determination was made that, in the view of the Privy Council Office, the material in question was subject to solicitor-client privilege and that section 23 was relevant. It is also apparent that a decision was made not to disclose the information which was considered to be subject to solicitor-client privilege.

     There is explicit reference to section 23 being a "discretionary exemption". I think a reasonable inference can be drawn that regard was had by the decision maker to section 23 and the fact that it contemplates a discretionary exemption. In the circumstances I am satisfied that a discretionary decision not to disclose was made.

2.      Is there a duty to give reasons for the decision? Absent a requirement by statute or regulation, a decision is not reviewable solely because of a failure to disclose reasons. See: [1979] 1 S.C.R. 684">Northwestern Utilities Ltd. v. Edmonton, [1979] 1 S.C.R. 684 at 705.

     The present case is not one that arises under those provisions of the Access to Information Act in which the court is called upon to determine if there were reasonable grounds for the refusal to disclose the record. In that type of case, the court requires reasons for the refusal either in the form of a decision or in evidence brought before it in order to be able to assess whether the head of the government institution had reasonable grounds to refuse disclosure. For example, see: section 50 of the Access to Information Act, and also, Information Commissioner (Canada) v. Prime Minister (Canada) (1992), 57 F.T.R. 180 (T.D.).

     In a case under section 23 of the Act, the court is only called upon to determine whether the head of the government institution was authorized to refuse disclosure on the ground that the information sought was subject to solicitor-client privilege. The reason for such a refusal is self-evident in section 23, and nothing further is required. I conclude that the decision of the Privy Council Office not to disclose did not require the giving of any further reasons than those contained in the decision.

3.      In making the discretionary decision, is it necessary for the decision maker to take into account matters such as the age of the record, the fact that the Parker Commission has been concluded for some years, and the reasons of the applicant for seeking disclosure? In Kelly, supra, Strayer J. states at 149:

The second type of decision is purely discretionary. In my view in reviewing such a decision the court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.

Counsel for the applicant relies on this statement to assert that the head of the government institution in exercising discretion must take account of "surrounding circumstances".

     In this case, it is abundantly clear that the Privy Council Office reviewed the records sought, expurgated those portions which it considered to be subject to solicitor-client privilege, and disclosed the balance. Those are the surrounding circumstances. Having regard to the nature of the documents and the jurisprudence regarding solicitor-client privilege, I am satisfied that the discretion not to disclose was exercised in good faith and for the reason stated in section 23.

     Counsel for the applicant referred to Dagg v. Canada (Minister of Finance), [1995] 3 F.C. 199 (F.C.C.A.) and MacKenzie v. Canada (Minister of National Health and Welfare), [1994] 88 F.T.R. 52 (T.D.) in support of the proposition that there was an obligation on the Privy Council Office to consider the applicant's reasons for requesting disclosure. In particular, counsel for the applicant submits that the applicant has a serious application for judicial review in respect of the Parker Commission report and the information he seeks is necessary for that proceeding.

     It would be inappropriate to impose a general rule as to what the head of a government institution must consider in making a decision under the Privacy Act, R.S.C. 1985, c. P-21 or the Access to Information Act. Rather, the specific provision under which a decision is made and the circumstances of the case must be considered. In some cases, e.g. under section 19 (1) of the Privacy Act it may be necessary for the head of a government institution to weigh the public interest in disclosure against the interest in privacy. Such a case calls for a broader determination than does section 23 of the Access to Information Act.

     While nothing prevents an applicant from explaining to the head of the government department why information should be disclosed in a particular case, and nothing prevents the head of the department from taking such submissions into account, there is no obligation to do so. Under section 23 all that need be considered by the head of the government institution is whether to waive the right, in whole or in part, to maintain the confidentiality of information that is subject to solicitor-client privilege. That is what took place in this case.

     I conclude that there is no error in respect of the exercise of discretion by the Privy Council Office in this case.

Application for disclosure to counsel for purposes of argument

     Towards the end of his argument, counsel for the applicant asked the Court to order that the narrative portions of the accounts be disclosed to applicant's counsel, so they could make submissions with regard to that material on an informed basis. It goes without saying that in ordinary litigation, counsel for both sides must have access to all material before the Court. However, this is not possible where the subject matter is access to such information, at least initially. For this reason the Court has established a procedure whereby upon timely application either the information or a gist of the information is disclosed to counsel for purposes of argument. See, for example, Hunter v. Canada, [1991] 3 F.C. 186 at 205; Steinhoff v. Canada (Minister of Communications) (1996), 114 F.T.R. 108.

     Because of the lateness of the application in this case, I declined to grant the applicant's request. However, I did indicate that if upon reviewing the confidential material, it appeared necessary or desirable to have representations of applicant's counsel relating to specific material, I would institute a process whereby I could receive such submissions. It has not been necessary for me to do so as this decision does not turn on the specific contents of the material.

CONCLUSION

     I find that the narrative portions expurgated by the Privy Council Office from the solicitors' accounts are subject to solicitor-client privilege. There has been no waiver of privilege express or implied, nor has the Privy Council Office failed to exercise discretion or erred in the exercise of discretion.

     Should either or both parties wish to make submissions with respect to costs having regard to section 53 of the Access to Information Act, they may contact the Registry within 14 days of the date of the order herein. If the Court is not so contacted, there will be no order as to costs.

     The application is dismissed.

                         "Marshall E. Rothstein"

    

     J U D G E

TORONTO, ONTARIO

FEBRUARY 26, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  T-2419-93

STYLE OF CAUSE:          THE HONOURABLE SINCLAIR STEVENS

                     - and -

                     THE PRIME MINISTER OF CANADA

                     (THE PRIVY COUNCIL)

DATE OF HEARING:          JANUARY 8, 1997

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      ROTHSTEIN, J.

DATED:                  FEBRUARY 26, 1997

APPEARANCES:

                     Mr. Peter R. Jervis

                     Mr. Stephen G.A. Pitel

                         For the Applicant

                     Ms. Claire le Riche

                         For the Respondent

SOLICITORS OF RECORD:

                     LERNER & ASSOCIATES

                     Barristers & Solicitors

                     130 Adelaide Street West

                     Suite 2400, Box 95

                     Toronto, Ontario

                     M5H 3P5

                         For the Applicant

                      Department of Justice

                     Toronto Regional Office

                     2 First Canadian Place

                     Suite 3400, Exchange Tower

                     P.O. Box 36

                     Toronto, Ontario

                     M5X 1K6

                     George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      T-2419-93

                     Between:

                     THE HONOURABLE SINCLAIR STEVENS

     Applicant

                         - and -

                     THE PRIME MINISTER OF CANADA

                     (THE PRIVY COUNCIL)

     Respondent

                     REASONS FOR ORDER

__________________

     ¹      Some other information was also expurgated on the grounds that it was personal information pursuant to ss. 19(1) of the Access to Information Act , but the applicant does not seek that information and it is not in issue.

     ² Order P-676 was quashed but for different reasons. See: Ontario (Attorney General) v. Fineberg, [1996] O.J. No. 67.

     ³      Lamer J. points out in [1982] 1 S.C.R. 860">Descôteaux at 873 that the solicitor-client privilege is generally subject to a few exceptions, e.g. a lawyer must be giving advice in a professional capacity for the right to inure, and communications cannot be made in perpetration of a crime or a fraud. These types of exceptions are not applicable in this case.

     ⁴      The view of Halvorson J.A. in International Minerals was in turn adopted by Heald D.J. in Canadian Jewish Congress v. Minister of Employment and Immigration (1995), 102 F.T.R. 30 at 46, who understood "continuum of communications" to emphasize:
     the importance that "all communications...between a client and a legal advisor directly related to the seeking, formulating or giving of legal advice or legal assistance" fall under the protection of the solicitor-client privilege.

     ⁵      Section 34 of the Financial Administration Act provides:
     34. (1) No payment shall be made in respect of any part of the public service of Canada unless, in addition to any other voucher or certificate that is required, the deputy of the appropriate Minister, or another person authorized by that Minister, certifies
         (a) in the case of a payment for the performance of work, the supply of goods or the rendering of services,
...
         (b) in the case of any other payment, that the payee is eligible for or entitled to the payment.
     (2) The Treasury Board may prescribe policies and procedures to be followed to give effect to the certification and verification required under subsection (1).

     ⁶      The applicant has brought an application for judicial review of Commissioner Parker's report in this Court on the basis of unfairness at least in part relating to the alleged involvement of Commission counsel in the writing of the report contrary to the alleged undertaking of Commissioner Parker that this would not occur. He says that access to the narrative portion of solicitors' accounts would disclose whether counsel was involved in the writing of the report.