Docket: T-840-15
Citation:
2016 FC 36
Ottawa, Ontario, January 12, 2016
PRESENT: The
Honourable Mr. Justice Beaudry
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BETWEEN:
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THE INFORMATION
COMMISSIONER OF CANADA
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Applicant
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and
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THE MINISTER OF EMPLOYMENT AND
SOCIAL DEVELOPMENT
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Respondent
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PUBLIC JUDGMENT AND REASONS
(Confidential Judgment and Reasons
issued January 12, 2016)
[1]
This is an application for judicial review
pursuant to paragraph 42(1)(a) of the Access to Information Act, RSC
1985, c A-1 [ATIA], of a decision by Employment and Social Development
Canada [ESDC] to refuse disclosure of portions of a Discussion Paper following
an access to information request for records related to Canada Pension Plan [CPP]
credit splitting.
I.
Facts
A.
Access to Information request
[2]
On August 10, 2006, Service Canada received an
access to information request from Vincent Calderhead, a lawyer with Nova
Scotia Legal Aid. Mr. Calderhead sought a variety of records concerning the
application rate by former spouses for a Division of Unadjusted Pensionable
Earnings [DUPE] under the CPP. The request was transferred to ESDC, known as
Human Resources and Social Development Canada at the time, in early September
2006.
[3]
On September 11, 2006, ESDC began to respond to
the request. Following consultations with the Department of Justice [DOJ], it
decided to exclude the discussion paper from the record, on the grounds that
solicitor-client privilege exempted the document pursuant to s 23 of the ATIA.
ESDC undertook a final release of documents in 2008.
B.
Complaint to the Office of the Information
Commissioner
[4]
On June 27, 2008, Mr. Calderhead complained to
the Office of the Information Commissioner of Canada [OIC] about the exemptions
that had been applied to the records in response to his request.
[5]
In 2010, the complaint was narrowed down to
focus exclusively on the discussion paper, titled “Erroneous
Advice Discussion Paper”. This paper was likely drafted between 1988 and
1990 by an employee of the Programs Policy and Legislation Section at National
Health and Welfare Canada, a predecessor to ESDC. It reviewed the
development of DUPE and possible governmental actions including numerous
options.
[6]
In December 2010, ESDC consulted anew with DOJ
regarding the application of s 23 ATIA to the discussion paper and again
refused to disclose it.
[7]
OIC representatives met with ESDC officials in
February 2012 to provide their views on which parts of the paper could
be disclosed. In June 2012, ESDC once again consulted with DOJ and maintained
the complete exemption of the document.
[8]
Further discussions between OIC and ESDC led to
disclosure of parts of the discussion paper on June 20, 2014. Thereafter, OIC
informed Mr. Calderhead that they remained of the view that ESDC was still
withholding information which did not fall within the scope of solicitor-client
privilege.
C.
Further disclosure
[9]
OIC recommended that additional parts of the
discussion paper be disclosed. On October 14, 2014, ESDC accepted these
recommendations in part. It declined to waive privilege in response to OIC’s
additional recommendations following the disclosure. ESDC maintained
solicitor-client privilege over:
1. The majority of the part of the discussion paper that discusses
the implication of option two (1786-1791; AR vol. I confidential version at
302-307);
2. The majority of the part of the discussion paper that is a
summary section of the paper (1793-1794; AR vol. I confidential version at
309-310);
3. Other specific segments of the discussion paper, in various
sections of the confidential version.
[10]
On March 31, 2015, OIC provided Mr. Calderhead
with the Report of Findings for its investigation and indicated that his
complaint was well-founded but not resolved, as ESDC had not fully implemented
their recommendations. OIC stated that they were prepared to bring an application
for judicial review on his behalf.
[11]
On April 23, 2015, Mr. Calderhead authorized OIC
to proceed with this application for judicial review.
[12]
At the hearing on December 14, 2015, the
Respondent with the Applicant’s consent filed an amended affidavit relating to
the status of Ms. Helena Orton. It indicated that Mrs. Orton was in fact the Litigation
Director for the Woman’s Legal Education and Action Fund (“LEAF”) and not for the DOJ. Therefore,
solicitor-client privilege does not apply to the advice she provided in 1988.
II.
Issues
[13]
The issues in this case are as follows:
- Are the parts of the Discussion Paper which remain at issue
subject to solicitor-client privilege?
- Did the Minister reasonably exercise his discretion in refusing
to disclose certain portions of the record?
III.
Relevant Provisions
[14]
The relevant provisions of the ATIA are
reproduced in Schedule “A” to these reasons.
IV.
Submissions of the Parties
A.
The Applicant
[15]
The Applicant submits that the Respondent bears
the burden of proof in establishing that on a standard of correctness ESDC is
authorized to refuse disclosure of parts of the discussion paper. This burden
should be examined in light of the purpose of the ATIA. A requester’s
right to access to government information is subject only to limited and
specific exceptions.
[16]
Solicitor-client privilege is not defined in the
ATIA, but can be found at common law (Blank v Canada (Minister of
Justice), 2006 SCC 39 [Blank 39]). Three criteria were established
in Solosky v R, [1980] 1 S.C.R. 821 [Solosky].
[17]
Given that the Respondent has already admitted that the
discussion paper was not drafted by a legal advisor and that it has disclosed
significant segments, it must be shown that the remaining parts undisclosed
constitutes a communication from a legal advisor, and that the disclosure would
have the effect of revealing legal advice requested or received. The Applicant underscores that the Respondent has failed to meet
this burden.
[18]
There is also no indication that ESDC has
weighed the factors in the jurisprudence when it decided that solicitor-client
privilege could be applied here (Leahy v Canada (Citizenship &
Immigration), 2012 FCA 227 [Leahy]).
B.
The Respondent
[19]
The Respondent advances that the legislative
framework recognizes necessary exceptions to the right of access to information,
and that the strict interpretations of these exceptions was rejected by the
Supreme Court Lavigne v Canada (Office of the Commissioner of Official
Languages), 2002 2 SCC 53, [2002] 2 S.C.R. 773. Therefore, ESDC was authorized
to refuse disclose of certain parts of the discussion paper because it was
subject to solicitor-client privilege.
[20]
All segments of the discussion paper at issue
meet the criteria in Solosky. They concerned written or oral legal
advice on what should be done in a relevant legal context from a solicitor,
DOJ, to a client, ESDC (Descôteaux v Mierzwinski, [1982] 1 S.C.R. 860).
These communications were within the continuum of communications between a
solicitor and a client, and are therefore protected (Canada (Information
Commissioner) v Canada (Minister of Public Safety and Emergency Preparedness),
2013 FCA 104 [MPSEP]).
[21]
The Respondent also adds that the exercise of
discretion is not reviewable if (1) it was exercised in good faith and not
based on irrelevant or extraneous factors and (2) all appropriate factors were
considered. As long as there is evidence that the discretion was in fact
exercised, a refusal to disclose based on solicitor-client privilege is not
subject to any further inquiry. Moreover, the segments were severed according
to the case law applicable in similar cases.
V.
Standard of Review
[22]
The Court agrees with the parties that whether
the solicitor-client privilege exemption applies should be reviewed under the
standard of correctness. The exercise of discretion in refusing to waive
privilege falls under the standard of reasonableness (MPSEP at para 18).
VI.
Analysis
A.
The legislative scheme
[23]
The purpose of the ATIA is to provide a
right of access to information for records under the control of government
institution (s 2(1) ATIA). This right is defined in s 4(1) ATIA.
The presumption is that information will be released unless the party resisting
disclosure can show that an exemption recognized in the ATIA applies (Toronto
Sun Wah Trading Inc v Canada (Attorney General), 2007 FC 1091 at paras 8-9;
Canada (Information Commissioner) v Canada (Minister of National Defence),
2011 SCC 25 at para 83, LeBel J (concurring)). Solicitor-client privilege is
one such exemption (s 23 ATIA).
[24]
If solicitor-client privilege is established, s
25 ATIA requires that the head of a government institution authorized to
refuse disclosure then review the record and disclose any part which may
reasonably be severed. The Federal Court of Appeal has provided guidance on how
section 25 should be applied. First, partial disclosure that would provide
clues about the exempted communications or factual assumptions should not be
undertaken (Blank v Canada (Department of Justice), 2007 FCA 87 at para
13). Second, there should be no disclosure unless such disclosure is meaningful
and coherent (Blank v Canada (Minister of Environment), 2007 FCA 289
at para 7).
B.
The solicitor-client privilege exemption
[25]
Canadian Courts have long recognized the
importance of solicitor-client privilege (Blank 39 at para 26). The term
is well defined in the case law. This privilege includes both the “litigation privilege” and the “legal advice privilege”. Only legal advice privilege
applies in the case at bar.
[26]
The three criteria for the solicitor-client
privilege established in Solosky at 837 are “(i)
a communication between solicitor and client; (ii) which entails the seeking or
giving of legal advice, and (iii) which is intended to be confidential by the
parties.” Legal advice privilege protects all communications between a
solicitor and a client related to the seeking, formulating or giving of legal
advice and extends to other communications within that continuum (MPSEP
at para 26; Samson Indian Nation and Band v Canada, [1995] 2 FC 762
(FCA) at page 769).
[27]
To evaluate whether solicitor-client privilege
applies to the record at issue, the Court should consider “the nature of the relationship, the subject matter of the
advice and the circumstances in which it is was sought and rendered” (R
v Shirose, [1999] 1 S.C.R. 565, [1999] SCJ No 16 at para 50).
C.
Issues :
(1)
Are the parts of the Discussion Paper which
remain at issue subject to solicitor-client privilege?
[28]
Having read the record and having in mind the
law and jurisprudence applicable here, the Court will look at each of the
portion of the discussion paper at issue in turn.
(a)
Implications of Option 2 (1786-1791; AR vol. I
confidential version at 302-307)
[29]
The Applicant argues that these parts
communicate policy advice and should be disclosed. Moreover, the parts can be
severed […]. The Respondent alleges that the
specific issues discussed in this part are based on confidential legal opinions
(Campbell and Brathwaite opinions) which had specifically been requested by
ESDC on June 11, 1987.
[30]
The Court is of the opinion that this portion of
the record constitutes policy advice stemming from legal opinions received by
ESDC. Disclosing this portion of the record would provide clues about
privileged communications, […]. The Court is not convinced by the Applicant’s
argument that severing the document the way it proposes would give any fewer
clues about the privileged information even if it would remove explicit
references to the fact this policy advice is based on legal opinions. This is
not like MPSEP on which the Applicant relied at the hearing, as these
portions of the record are not “the product of
negotiation and compromise” and their disclosure would in fact “undercut the purposes served by solicitor-client privilege”
(MPSEP at paras 38-39).
[31]
This portion is subject to solicitor-client
privilege.
(b)
The Summary (1793-1794; AR vol. I confidential
version at 309-310)
[32]
The Court is of the opinion that disclosing this
part of the record would not reveal any privileged information or give any
clues on such information. Other than the parts which the Applicant has agreed
should not be disclosed, the Court finds that the summary merely contains
policy advice including the primary author’s suggestion about which option
should be followed.
[33]
The fact that the erroneous advice provision was
discussed by ESDC and the DOJ at length does not preclude mentioning the
erroneous advice provision, especially when this discussion provides no clues
as to what was actually discussed by those parties.
[34]
This portion is not subject to solicitor-client
privilege.
(c)
Various other segments
[35]
The Applicant submits that these portions should
be disclosed. The Respondent argues that the Applicant’s argument that portions
of the discussion paper must exactly match request for legal advice and written
opinions to meet the exception should not be the standard.
( )
Headnote (1763; AR vol. Confidential version I
at 279)
[36]
The parties now agree that this portion should
not be disclosed. The Court shares their view.
(i)
Implications of the Preece decision
(1772; AR vol. I confidential version at 288)
[37]
This portion of the record should be disclosed.
It does not contain or reveal any clues about privileged materials and the same
information is already publicly available in other portions of the record and
in ESDC’s Canada Pension Plan Credit Splitting Guide for the Legal Profession.
(ii)
Current issue (1779; AR vol. I confidential
version at 295)
[38]
The Court believes that this portion of the
record is subject to solicitor-client privilege. These two sentences give
details about the questions which were submitted to legal counsel […]. Disclosing
these sentences would reveal the legal advice that was sought out and provided,
[…].
(iii)
Description of Option 1-B (1785, last sentence
before “implications”; AR vol. Confidential version I at 301)
[39]
This segment of the record is not privileged.
The Respondent has failed to show how this sentence is anything more than the
primary author’s personal opinion. Though retroactivity is discussed in the
legal opinions provided to the Minister, there is no indication that any legal
risk assessment of the LEAF Charter challenge was ever sought or given,
considering in particular that the Respondent no longer claims that the Orton
opinion is privileged.
(iv)
Implications of Option 1-B (1785-186; AR vol. I
confidential version at 301-302)
[40]
Similarly, the Respondent has failed to
establish that the content of this portion was based on a legal opinion.
Although the expression “the Minister’s defense, in
brief, would be…” might suggest that this comment was based on legal
advice, the last sentence in this passage shows that the entire segment is in
fact policy advice. This portion is not subject to solicitor-client privilege.
(v)
Implications of Option 4 (1793; AR vol. I
confidential version at 309)
[41]
The indirect evidence relied on by the
Respondent does not support his position that this segment reveals privileged
information. This portion is not subject to solicitor-client privilege.
[42]
In summary, the following portions of the
discussion paper should be disclosed as they are not subject to
solicitor-client privilege:
1.
The Summary (1793-1794; AR vol. I confidential
version at 309-310);
2.
Implications of the Preece decision (1772; AR
vol. I confidential version at 288);
3.
Description of Option 1-B (1785) last sentence
before “implications”; AR vol. I confidential version at 301);
- Implications of Option 1-B (1785-186; AR vol. I confidential
version at 301-302);
- Implications of Option 4 (1793; AR vol. I confidential
version at 309).
[43]
Those portions of the record that are subject to
solicitor-client privilege are:
- Implications of Option 2 (1786-1791; AR vol. I confidential
version at 302-307);
- Headnote (1763; AR vol. I confidential version at 279);
- Current issue (1779; AR vol. I confidential version at 295).
(2)
Did the Minister reasonably exercise his
discretion in refusing to disclose certain portions of the record?
[44]
Section 23 ATIA provides for a
discretionary right of refusal to disclose privileged information. The
Applicant argues that the Minister has failed to identify which criteria were
taken into account and whether these criteria were met (Leahy at para
141).
[45]
In that case, the Federal Court of Appeal held
there was a paucity of evidence in the record. In the postscript (paras 138 to
145) on which the Applicants rely the Court gave guidance as to which documents
are needed by a reviewing court. However, in the case at hand, the record is
sufficient to allow the Court to be satisfied that the Minister exercised his
discretion in a reasonable manner in refusing to disclose certain portions of
the discussion paper (see for example the letter from Mr. Ian Shugart to Ms.
Suzanne Legault, dated October 14, 2014; AR vol. I confidential version at
195).
[46]
Although the Applicant is not seeking costs, the
Respondent requests a lump sum in the amount of $ 2,000.
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