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ACCESS TO INFORMATION AND PRIVACY - Bars and grounds for refusal - Confidential information

Thursday, September 24, 2020 @ 6:13 AM  

Appeal by the Canadian Constitution Foundation from an order quashing a decision of a Privacy Commissioner adjudicator to compel the Attorney General to release the amount of interim legal costs it had incurred, during a defined period, defending a constitutional challenge to the Medicare Protection Act. The adjudicator determined this information was not subject to solicitor‑client privilege under s.14 of the Freedom of Information and Protection of Privacy Act. The chambers judge found the information presumptively privileged and concluded that the presumption of privilege was not rebutted. The appellant argued the principle that information about legal costs incurred in litigation, standing alone, was presumptively subject to solicitor‑client privilege applied only in the criminal context and that no such presumption applied in the civil context. 

HELD: Appeal dismissed. The standard of review of the adjudicator’s decision was the correctness standard. The core of the question under review was a general question of law of central importance to the legal system as a whole as the question was fundamentally about the scope of solicitor‑client privilege. The facts were straightforward and uncontested. Whether or not solicitor‑client privilege applied on those facts was essentially a legal question. The question of the existence and scope of the privilege was logically and legally independent of any particular context. Information about the total amounts of legal fees was presumptively privileged. The presumption could be displaced, but the onus of doing so rested with the party attempting to displace it. The presumption of privilege arose from the connection between billing information and the nature of the relationship between lawyers and clients. It did not depend on the specific details included or not included in a bill. The appellant did not rebut the presumption of privilege in this case. The amount of public and private knowledge available about the case made it more, and not less, likely that inferences about communications could possibly be drawn. With more information, it seems to me more likely that a knowledgeable person, armed with information about total legal costs, particularly in an ongoing matter, could draw inferences that would fill in gaps, make further connections, or illuminate what might not otherwise be clear about matters protected by the privilege. There was a significant amount of public information available in this case. This information, combined with knowledge of the government’s interim legal costs, risked the possibility of allowing an assiduous inquirer to draw inferences about litigation strategy and communications between lawyer and client. The appellant was not a stranger to the litigation, and any information it obtained would become a part of the public domain and available to the plaintiff in ongoing litigation. Disclosure mid‑trial of litigation costs could also have a significant effect on the government’s strategy in negotiating costs at the end.

British Columbia (Attorney General) v. British Columbia (Information and Privacy Commissioner), [2020] B.C.J. No. 1316, British Columbia Court of Appeal, D.C. Harris, G.J. Fitch and G.B. Butler JJ.A., August 21, 2020. Digest No. TLD-September212020008