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ACCESS TO INFORMATION AND PRIVACY - Access to information - Inspection of public documents - Requests for disclosure - Bars and grounds for refusal - Solicitor-client privilege

Monday, July 24, 2017 @ 8:16 AM  

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Appeal by the Attorney General of British Columbia from a chambers judge decision finding that certain inadvertently disclosed communications in the context of access to information request were not protected by solicitor-client privilege. The Attorney General asserted privilege over 19 pages of email communications between a government lawyer and employees of the Ministry of Justice and RoadSafetyBC, mistakenly included in a package of documents produced in response to an access to information request made under the Freedom of Information and Protection of Privacy Act. The law firm made the access request for the purpose of obtaining the results of Immediate Roadside Prohibition (IRP) reviews to determine whether there had been communications between RoadSafetyBC and the police about the reliability of approved screening devices. The firm took the position that the communications did not constitute legal advice and were not privileged, or that any privilege was waived by the disclosure. The chambers judge held that some of the documentation constituted privileged legal advice over which privilege had not been waived, but held that other portions of the communications were not privileged on the basis that they involved government counsel purporting to influence an adjudicator’s decision-making or adjudicating role in relation to IRP reviews.

HELD: Appeal allowed. The chambers judge erred in failing to consider and apply the principle that once solicitor-client privilege was established, it applied to all communications within the framework of the solicitor-client relationship, such that severance of some communications could only occur where there was no risk of revealing legal advice. The judge took the proper approach in assessing whether the communication was legal advice or more analogous to policy advice, not falling within the protection of solicitor-client privilege. He fell into error in severing from the privileged communications advice that constituted a continuation of the advice the judge appropriately characterized as privileged legal advice. With respect to the chamber judge’s concern that the advice provided purported to influence the responsible adjudicator’s decision-making or adjudicating role, the nature of legal advice was that it might influence the decision-making of the client. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible was still legal advice. Disclosure of the excised portions the judge characterized as non-privileged would inevitably reveal the legal advice that was privileged. The government lawyer’s advice on what decision the government employees could make that would withstand judicial review did not effectively usurp the decision-making role of RoadSafetyBC. The inadvertent disclosure did not constitute waiver of privilege. Accordingly, the 19 pages inadvertently disclosed through the access to information process were all subject to solicitor-client privilege.

British Columbia (Attorney General) v. Lee, [2017] B.C.J. No. 1088, British Columbia Court of Appeal, E.A. Bennett, A.W. MacKenzie JJ.A and Hunter J., June 8, 2017. Digest No. TLD-July242017002