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ACCESS TO INFORMATION AND PRIVACY - Bars and grounds for refusal - Solicitor-client privilege

Wednesday, August 28, 2019 @ 7:53 AM  

Application by the Ministry of the Attorney General of British Columbia for judicial review of the Information and Privacy Commissioner’s decision ordering the production of a document. The Canadian Constitution Foundation sought a document that recorded the interim legal costs of a Charter challenge to provisions of the Medicare Protection Act. The Ministry withheld production of the document on the basis of solicitor-client privilege. The Commissioner held that the document was subject to a rebuttable presumption of solicitor-client privilege, but that the presumption was rebutted.

HELD: Application allowed. The document was subject to a rebuttable presumption of solicitor-client privilege. The interim legal costs arose out of the solicitor-client relationship and what transpired within it and reflected work done at the client’s instruction. The presumption was not rebutted. An assiduous inquirer, aware of the background available to the public (which would include how many court days were occupied at trial and in chambers applications, the nature of the applications, the issues disclosed in the pleadings and the stage of the litigation for the period covered by the request) would, by learning the legal cost of the litigation, be able to draw inferences about matters of instruction to counsel, strategies being employed or contemplated, the likely involvement of experts and the Province’s state of preparation.

British Columbia (Attorney General) v. British Columbia (Information and Privacy Commissioner), [2019] B.C.J. No. 1302, British Columbia Supreme Court, C.J. Ross J., July 12, 2019. Digest No. TLD-August26019007