INTERIM ORDER MO-1337-I

 

Appeal MA‑990085‑1

 

City of Hamilton

NATURE OF THE APPEAL:

 

The City of Hamilton (the City) received a request from a journalist under the Municipal Freedom of Information and Protection of Privacy (the Act).  The request was for access to records relating to fire prevention activities carried out by the City’s Fire Department (the Fire Department) at a specified address (the property), including any references to the business located at that address and/or references to two named individuals.  These two individuals are the directors and officers of the business.  The requester wanted documents covering the period January 1, 1997 to the date of the request (December 16, 1997).  On January 15 and March 19, 1998, the City contacted the requester to clarify his request, and sent a letter to the requester on April 24, 1998 confirming that the request covers the period January 1, 1997 to the date of the letter, April 24, 1998.

 

The City identified 3,461 paper records, 88 photographs and two videotapes.  The City decided that seven records were non-responsive, and divided the remaining records into the following 20 categories in responding to the requester:

 

1.         Monitoring Notes, February 1998 - April 1998

2.         Letters, e-mail messages, orders, June 1997 - April 1998

3.         Inventory lists, Recommendations, letters, e-mail messages, facsimiles, court documents, invoices, February 1998 - April 1998

4.         Facsimiles, memoranda, telephone messages, bids, proposal documents,

March 1998 - April 1998

5.         Weigh Bills, April 1998

6.         Tender Documents, bids, facsimiles, memoranda, letters, e-mail messages, March 1998 - April 1998

7.         E-mail messages, facsimiles, court documents, November 1997 - January 1998

8.         Letters, Agreements, invoices, e-mail messages, quotations, contracts, facsimiles, November 1997 - April 1998

9.         Videotapes, photographs, October 1997 - February 1998

10.       Letters, facsimiles, business cards, staff assignments, December 1997 - March 1998

11.       Business cards, invoices, calendars, e-mail messages, memoranda, Recommendations, facsimiles, December 1997 - February 1998

12.       Inventory lists, lease agreement, December 1997 - February 1998

13.       Notes, Inspection Reports, Fire Code Information, inventory breakdown, court documents, facsimile, June 1997 - January 1998

14.       Facsimiles, Material Safety Data Sheets, November 1997 - April 1998

15.       Court documents, notes, Corporation Profile Reports, February 1997 - November 1997

16.       Business card, court documents, Corporation Profile Reports, Fire Code Information, Registry/Land Titles, e-mail messages, letters, February 1997 - March 1998

17.       Court documents, Fire Marshal Orders, letters, February 1997 - December 1997

18.              E-mail messages, October 1997 - April 1998

19.              Letters, facsimiles, notes, memoranda, Corporation Profile Reports, Recommendations, inventory list, press release, e-mail messages, orders,

            inspection reports, notices, court documents, June 1997 - March 1998

20.       Notes, summaries, February 1997 - April 24, 1998

 

After resolution of a fee appeal and a time extension appeal in connection with this request, the City issued its access decision.  The requester was provided with full access to 154 records and partial access to 61 others.  The City denied access to the remaining records and parts of records on the basis of one or more of the following exemption claims:

 

•           section 7(1)  - advice or recommendations

•           sections 8(1)(a), (b), (c) and (g), and 8(2)(a) and (c)  - law enforcement

•           sections 10(1)(a) and (c)  - third party commercial information

•           sections 11(d) and (e)  - economic and other interests of the City

•           section 12  - solicitor-client privilege

•           section 14(1)  - invasion of privacy

 

The City also directed the requester to locations, including land and business registration offices,  where responsive public records could be obtained.   The City denied access to the seven records it characterized as non-responsive.

 

The requester, now the appellant, appealed the City's decision.

 

During mediation, the City issued a second decision to the appellant, claiming that 15 records qualified for exemption under section 15(a) of the Act (information available to the public). However, the appellant agreed not to pursue access to these 15 records, as well as 162 others that were available at either the Land Registry Office or the Companies Branch of the Ministry of Consumer and Commercial Relations.  These 177 records and the section 15(a) exemption claim are no longer at issue in this appeal.

 

As a result, 3,040 paper records remain at issue.  Of these, 2,979 were withheld in full and the other 61 in part.  These paper records include letters, facsimiles, memoranda, monitoring forms, file notes, corporate searches, e-mail notes, tender documents, court documents, inventory sheets, and various other related documents. All 88 photographs and the two videotapes also remain at issue.

 

The records are described in greater detail in the index attached as Appendix A to this order.  I have adopted the City’s page numbering system from the index.  This system assigns a record number to each page, even though many of the documents are more than 1 page in length.   As a result, a 2-page document would be referred to, for example, as “Records 412-413”.

 

Following the completion of mediation, I sent a Notice of Inquiry to the City and the appellant outlining the issues to be considered during the inquiry.  I received written representations from the City, but not from the appellant.   During the course of this inquiry, the Court of Appeal issued its decision in General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321(Ont. C.A.).  This case dealt extensively with the law of litigation privilege.  I sent a Supplementary Notice of Inquiry to the parties, providing them with an opportunity to provide representations on the impact of General Accident on the litigation privilege component of section 12.  Again, only the City provided representations in response.

 

BACKGROUND:

 

The factual background of this matter is important in understanding the potential application of the various exemption claims.

 

On May 30, 1997, the Fire Department conducted a routine inspection of the property.  This inspection revealed that the building contained large quantities of combustible products and that the sprinkler systems were not working properly. 

 

On June 18, 1997, Fire Department personnel issued a Fire Marshal’s Order providing specific instructions for compliance with some of the deficiencies noted in the inspection.  These deficiencies related to the sprinkler system, exit signage, and the labelling of paint storage drums.

 

On June 25, 1997, Fire Department personnel issued a Notice of Violation pursuant to the Fire Marshals Act for the owner to correct other deficiencies noted during the inspection.  The owner failed to comply with a number of items in this Notice of Violation, and charges were laid pursuant to the Fire Marshals Act on August 21, 1997.  On October 29, 1997, the owner was found guilty in absentia, resulting in fines to the company and its president.  Due to the outstanding deficiencies at the property, the Fire Department requested an order from the Fire Safety Commission (the FSC) authorizing the Fire Department to take corrective action on the property.

 

On November 14, 1997, the FSC issued an Order authorizing the Fire Department to proceed with the removal and disposal of the combustible contents if the owner did not satisfy the requirements of the decision.  The FSC’s order set out various time frames for compliance and required that all remedial work be completed by January 31, 1998.  Under the terms of the FSC Order, if the owner failed to meet any of the compliance dates, the Fire Department would be authorized to proceed with the removal and disposal of the combustible contents of the building.

 

On December 3, 1997, the owner filed a Notice of Appeal to set aside the FSC decision.  On December 9, 1997 Justice Crane of the Ontario Court (General Division) (now called the Superior Court of Justice) stayed the FSC Order with respect to the removal and disposal of the combustible contents of the building.

 

On December 6, 1997, the Fire Department, with the approval of the Fire Marshal, closed and assumed control over the property and placed security services on site.  The owner was allowed supervised access to the property in order to complete required work.  The Fire Marshal’s Order which accompanied the closure of the site required that the owner remove the combustible contents by December 13, 1997 or upgrade the building to acceptable levels by January 6, 1998.

 

On February 19, 1998, Justice Crane ordered the sale of the building materials, and on March 12, 1998, he approved the method of disposal, manner of distribution of the proceeds of sale of the combustible goods, and directed the City of Hamilton to order that the building’s owner pay the costs of removal, storage, and disposal.

 

The owner brought a motion in Divisional Court for leave to appeal and for a stay of Justice Crane’s February 19 and March 12, 1998 orders.  The owner also appealed Justice Crane’s March 12, 1998 order to the Ontario Court of Appeal.  The Court of Appeal dealt with the matter on December 15, 1999.  On agreement of both parties, it determined that Justice Crane did not have jurisdiction to make the March 12, 1998 order, and confirmed the November 14, 1997 order of the FSC permitting the City to remove and dispose of combustible material.

 

On April 14, 1998, two numbered companies and the owner of the property commenced an action against the City and others, seeking damages on the basis of an alleged conspiracy to deprive them of their goods and interference with their commercial activities.  This action has not been withdrawn and a trial date has not been scheduled.

 

On April 30, 1998, a named individual and a named company commenced a separate action against the City and others, including the owner of the property, seeking damages for interference with delivery of certain materials they had agreed to purchase from the property owner.  This action has also not been withdrawn and a trial date has not been scheduled.

 

On July 10, 1998, the Fire Marshal’s order to pay costs was served on the owner of the property.  This order was subsequently appealed to the FSC.  This appeal was scheduled to be heard on October 20, 1998, but was adjourned on consent of the parties on October 14, 1998.  The FSC confirmed the adjournment on October 15, 1998 and closed the file.  Neither the owner nor the City has reopened the appeal.

 

PRELIMINARY MATTERS:

 

Responsiveness of the Records

 

The City initially claimed that Records 220, 224, 2242, 2246, 2332, 2634-2635 and 3455-3456 were not responsive to the request. However, the City changed its position in its representations, and now claims that only Record 2634 is non-responsive, and that all other records are exempt under various sections of the Act.  I will deal with these records in the body of this order.

 

As far as Record 2634 is concerned, the City states that this record is not responsive because it “is a copy of facsimile correspondence to the appellant, and as such, was non-responsive to the request, as it should be in his possession.”

 

The issue of responsiveness of records was canvassed in detail by former Adjudicator Anita Fineberg in Order P-880.  That order dealt with a redetermination regarding this issue which resulted from the decision of the Divisional Court in Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3rd) 197.

 

In the Fineberg case, the Divisional Court characterized the issue of the responsiveness of a record to a request as one of relevance.  In her discussion of this issue in Order P-880, Adjudicator Fineberg stated:

 

In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to a request.  It is an integral part of any decision by a head.  The record itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request.  I am of the view that, in the context of freedom of information legislation, “relevancy” must mean “responsiveness”.  That is, by asking whether information is “relevant” to a request, one is really asking whether it is “responsive” to a request.  While it is admittedly difficult to provide a precise definition of “relevancy” or “responsiveness”, I believe that the term describes anything that is reasonably related to the request.

 

Whether or not a record represents correspondence with a requester and/or is in the requester’s possession is not determinative of whether a record is responsive to a  request.  If the record contains information related to the subject matter of the request, regardless of its relationship to the requester, the record must be considered responsive and the City must make a decision respecting access to that record.

 

The content of Record 2634 is directly related to the subject matter of the request.  Therefore, I find that it is responsive, and I will order the City to provide the appellant with an access decision regarding this record.

 

Personal Information

 

“Personal information” is defined in section 2(1) of the Act to mean recorded information about an identifiable individual.  Section 14(1) of the Act is a mandatory exemption claim dealing with personal information.  It requires personal information of individuals other than a requester to be withheld, subject to certain exceptions listed in section 14(1).

 

The City submits that a number of records contain personal information.   The City’s representations on this issue state:

 

The specific information contained in the various records includes names, addresses and business and home telephone numbers of the directors of the business operated at [the property], as well as personal contacts of those directors.

 

However, the City did not notify any individuals whose personal information may be contained in any of the records at issue in this appeal.  Before proceeding to consider the personal information exemption claim in this inquiry, I must first notify these individuals and provide them with an opportunity to submit representations on whether or not the information qualifies as their “personal information” and, if so, whether this information is exempt under section 14(1).

 

Because section 14(1) is a mandatory exemption, I have reviewed all of the records and determined that others may also include personal information.

 

I will defer my decision on these records, with the exception of those that are legitimately withheld under one of the other exemption claims, and provide a Supplementary Notice of Inquiry to those individuals whose personal information may be at issue.  The records that fall in this category are identified in Appendix A with the reference As. 14(1)” under the heading “Decision Deferred”.

 

 

Third Party Information

 

For a record to qualify for exemption under sections 10(1)(a), (b) or (c), the following three-part test must be established:

 

1.         the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and

 

2.         the information must have been supplied to the institution in confidence, either implicitly or explicitly;  and

 

3.         the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 10(1) will occur.

 

(Orders 36, P-363, M-29 and M-37)

 

The City claims that section 10 applies to a number of records containing information supplied by various third parties.  These records all relate to extensive dealings between the City and various third parties regarding the removal, storage, sale and destruction of the combustible items stored at the property.  Some of the records consist of quotations and proposals submitted to the City, and others reflect discussions and meetings between City and Fire Department personnel regarding these activities.

 

However, the City did not notify any third party organizations whose information may be contained in any of the records at issue in this appeal.  Before proceeding to consider the third party information exemption claim in this inquiry, I must first notify these organizations and provide them with an opportunity to submit representations on whether or not the information qualifies as their “third party information” and, if so, whether this information is exempt under section 10(1).

 

Because section 10 is a mandatory exemption, I have reviewed all of the records and determined that others may also contain third party information. 

 

I will defer my decision on these records, with the exception of those that are legitimately withheld under one of the other exemption claims, and provide a Supplementary Notice of Inquiry to those organizations whose third party information may be at issue.  The records that fall in this category are identified with the reference As. 10(1)” in Appendix A under the heading “Decision Deferred”.

 

Records Already Disclosed

 

Records 1943-1945 and 1934-1937 have already been disclosed to the appellant.  Records 2121-2123, 2124-2126, 2149-2151, 2194-2196 and 2872-2874 are duplicates of Records 1943-1945; and Records 2117-2120 and 2135-2138 are duplicates of Records 1934-1937.  These duplicate records should also be disclosed to the appellant, and I will include them among the records ordered disclosed by this Interim Order.

 

 

Records Not Provided

 

A small number of records subject to exemption claims have not been provided to me by the City.  I will include a provision in this Interim Order requiring production of these records in order for me to determine whether or not exemption claims have been established.

 

Records Where No Exemption Claimed

 

The City describes Records 2442 and 2804 as duplicate records, but does not identify the corresponding records or any specific exemption claims.  Record 2442 is the endorsement page of a court motion record, and Record 2804 is a Fire Marshal Order.  Both of these records are public documents and not subject to any valid exemption claims.

 

Records 3455-3456

 

In its representations, the City claims that Records 3455-3456 are exempt under section 15(a).  These records consist of a Fire Code Commission Decision Summary.  Other such summaries (Records 3449-3454, 3457-3458, 3459 and 3460-3461) were removed from the scope of this appeal during mediation.  Although the appellant may be willing to obtain Records 3455-3456 from other available sources, given the passage of time and complexity of this appeal, I have decided that the most straightforward treatment of Records 3455-3456 is to order their disclosure.

 

DISCUSSION:

 

SOLICITOR-CLIENT PRIVILEGE

 

Section 12 of the Act states:

 

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

 

This section consists of two branches, which provide a head with the discretion to refuse to disclose:

 

1.         a record that is subject to the common law solicitor-client privilege (Branch 1); and

 

2.         a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2).

 

Although the wording of the two branches is different, the Commissioner’s orders have held that their scope is essentially the same:

 

In essence, then, the second branch of section 19 was intended to avoid any problems that might otherwise arise in determining, for purposes of solicitor-client privilege, who the “client” is.  It provides an exemption for all materials prepared for the purpose of obtaining legal advice whether in contemplation of litigation or not, as well as for all documents prepared in contemplation of or for use in litigation.  In my view, Branch 2 of section 19 is not intended to enable government lawyers to assert a privilege which is more expansive or durable than that which is available at common law to other solicitor-client relationships.

 

(Order P-1342; upheld on judicial review in Ontario (Attorney General) v. Big Canoe, [1997] O.J. No. 4495 (Div. Ct.).  This case dealt with section 19 of the provincial Freedom of Information and Protection of Privacy Act, the equivalent provision to section 12 of the municipal Act.)

 

The City claims section 12 applies as one basis for exempting all of the records, with the exception of Records 183 and 184.  The litigation privilege component is claimed for all of these records, and solicitor-client communications privilege for some records as well.  I will deal with litigation privilege first.

 

LITIGATION PRIVILEGE

 

Can the Commissioner Rule on Litigation Privilege?

 

The City’s representations suggest that the Commissioner either lacks jurisdiction to consider the applicability of litigation privilege or should not do so when litigation is in progress.  I will deal with this as a preliminary issue before turning to the substantive issues in this regard.

 

The City states that :

 

... the question of whether privilege attaches to records created or obtained by employees of the City of Hamilton, which were subsequently provided to both its in-house solicitors and the City’s outside counsel, can be determined only in the context of the litigation process.  Again it would be premature and inappropriate for the Information and Privacy Commissioner to address the issue of privilege for such documents in the context of the freedom of information process, without knowledge of the several legal issues in dispute between the parties, or the purpose for which a particular document, even of an otherwise public nature, was created or obtained.  The City of Hamilton respectfully submits, that it was not the intention of the Legislature of Ontario, in enacting the Municipal Freedom of Information and Protection of Privacy Act, to permit members of the public to gain access to information which a municipality has gathered to defend its legitimate legal interests, when that municipality is involved in litigation that could result in significant liabilities.

 

I do not agree with this argument.  The Act deals with the relationship between discovery and litigation in section 51(1), which states:

 

This Act does not impose any limitation on the information otherwise available by

 

law to a party to litigation.

 

The Act does not address the opposite proposition, that information relating to litigation may not be disclosed under the Act, which is the essence of the City’s representations on this point.   The “implied exclusion” or expressio unius rule of statutory interpretation suggests that in these circumstances, it would be legitimate to infer from the existence and wording of section 51(1) that the legislature did not intend the Act to have the effect suggested by the City.  The principle is explained by Ruth Sullivan, in Driedger on the Construction of Statutes, 3^rd ed. (Toronto and Vancouver:  Butterworth’s, 1994) at pages 168-9:

 

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly.  Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded.

...

 

Where a provision specifically mentions one or more items but is silent with respect to other items that are comparable, it is presumed that the silence is deliberate and reflects an intention to exclude the items that are not mentioned.  The reasoning goes as follows: if the legislature had intended to include all comparable items, it would have mentioned them all or described them all using general terms; it would not have mentioned some of them while saying nothing of others, for to proceed in this way would be irrational and contrary to standard drafting practice.  One must presume that legislation has been competently drafted.

 

In my view, this principle is applicable here,  and precludes me from concluding that records are not accessible under the Act simply because they may relate in some way to litigation.

 

Commissioner’s Previous Interpretation of Litigation Privilege

 

The Commissioner’s approach to litigation privilege, prior to the issuance of the Ontario Court of Appeal’s decision in General Accident Assurance Co. v. Chrusz, supra, was summarized in Order P-1551, as follows:

 

Litigation privilege, often referred to as the “work product” or “lawyer’s brief” rule, protects documents which are not direct solicitor-client communications, but which are “derivative” of that relationship.  This includes communications between the solicitor or the client and third parties, documents generated internally by the solicitor or the client, or documents compiled for a lawyer’s brief, where the dominant purpose for which they were created or obtained is existing or reasonably contemplated litigation.  Litigation privilege applies only if the document was made or obtained with an intention that it be confidential in the course of the litigation.

 

The rationale for litigation privilege is to protect the adversary system of justice by ensuring a zone of privacy for counsel preparing a case for litigation [Hickman v.

Taylor 329 U.S. 495 at 508-511 (1947); Strass v. Goldsack (1975), 58 D.L.R. (3d) 397 at 424-425 (Alta. C.A.); General Accident Assurance Co. v. Chrusz (1997), 34 O.R. (3d) 354 at 370 (Gen. Div.), leave to appeal granted (1997), 35 O.R. (3d) 727 (Gen. Div.)].  As the Ontario Court (General Division) Divisional Court explained in Ottawa-Carleton (Regional Municipality) v. Consumers’ Gas Co. (1990), 74 D.L.R. (4th) 742 at 748:

 

The adversarial system is based on the assumption that if each side presents its case in the strongest light the court will be best able to determine the truth.  Counsel must be free to make the fullest investigation and research without risking disclosure of his opinions, strategies and conclusions to opposing counsel.  The invasion of privacy of counsel’s trial preparation might well lead to counsel postponing research and other preparation until the eve of or during the trial, so as to avoid early disclosure of harmful information.  This result would be counter-productive to the present goal that early and thorough investigation by counsel will encourage an early settlement of the case.  Indeed, if counsel knows he must turn over to the other side the fruits of his work, he may be tempted to forego conscientiously investigating his own case in the hope he will obtain disclosure of the research investigations and thought processes in the trial brief of opposing counsel.

 

Under the litigation privilege or work product rule, a distinction has been drawn between “ordinary” work product (documents gathered from third parties, the document itself or factual information) and “opinion” work product (counsel’s mental impressions, conclusions, opinions or legal theories), with the latter enjoying a heightened protection [R.J. Sharpe, “Claiming Privilege in the Discovery Process”, Law Society of Upper Canada Special Lectures, 1984 (Richard DeBoo Publishers, 1984), pp. 175-177; In re Sealed Case, 676 F.2d 793 at 809-810 (U.S.C.A., Dist. Col., 1982); C.A.); Mancao v. Casino (1977), 17 O.R. (2d) 458 (H.C.)].

...

 

Litigation privilege ends with termination of the litigation for which the documents were prepared or obtained [Boulianne v. Flynn, [1970] 3 O.R. 84 at 90 (Co. Ct.); Meaney v. Busby (1977), 15 O.R. (2d) 71 (H.C)].  The exception to this rule is where the policy reasons underlying the privilege remain, despite the end of the litigation.  For example, privilege may be sustained in related litigation involving the same subject matter in which the party asserting the privilege has an interest [Carleton Condominium Corp. v. Shenkman Corp. (1977), 3 C.P.C. 211 (Ont. H.C.)].  In other words, the law will only give effect to the privilege while the purpose for its recognition continues to be served.  Unlike solicitor-client communication privilege, the purpose of which is to protect against disclosures which could have a chilling effect on the solicitor-client relationship, the purpose of litigation privilege is to protect against disclosures which could have a chilling effect on the lawyer’s preparation for the particular litigation, or any related litigation arising out of the

 

same subject matter.

 

The General Accident Decision and the “Dominant Purpose” Test

 

Introduction

 

In General Accident, the majority of the Court of Appeal questioned the “zone of privacy” approach and adopted a test which requires that the “dominant purpose” for the creation of a record must have been reasonably contemplated litigation in order for it to qualify for litigation privilege.  General Accident represents an important development in the law of Ontario regarding this aspect of privilege.  For that reason I sent a Supplementary Notice of Inquiry to parties inviting representations on its impact on this appeal.  As noted previously, only the City submitted representations in response to this notice.

 

The fact situation in General Accident is important in assessing its overall impact and its application to the facts of the present appeal.  In that case, an insurance company had retained an adjuster for the purpose of investigating a loss resulting from a fire at a motel owned by its insured.  The insurance company initially suspected arson, but eventually paid part of the claim submitted by the motel owner.  Subsequently, a former employee of the motel gave a statement to the insurer’s lawyer, alleging fraud by the owner.  The insurance company then began an action against the insured alleging, among other things, fraud and misrepresentation.  The issue before the Court was whether various records and communications created during the course of the events following the fire were protected by litigation privilege.

 

For the purposes of the present appeal, one of the most significant aspects of General Accident is its conclusion that, whether or not litigation may have been reasonably contemplated initially, this contemplation must by necessity have come to an end prior to payment of any portion of the claim.  As a result, litigation privilege could not be claimed for records created before payment of the claim because any reasonable contemplation of litigation that might have existed at the time they were created must have ended before any payment was made.  Moreover, records created after the payment, but before the former employee gave his statement, were not created for the dominant purpose of reasonably contemplated litigation, because there was no litigation reasonably in contemplation during that period.  A new basis for contemplated litigation arose at the time the former employee made his statement, but it is apparent from the Court’s ruling that this could not revive litigation privilege for any previous time period.  Only records which came into existence after the former employee gave his statement could meet the dominant purpose test.

 

By inference, the Court’s decision stands not only for the proposition that “dominant purpose” is the proper test in applying litigation privilege to documents created in connection with existing or contemplated litigation, but also, by analogy to the termination of litigation/loss of privilege doctrine, that privilege based on the reasonable contemplation of litigation is time-sensitive, and if the contemplation of litigation comes to an end, even records whose dominant purpose was contemplated litigation will lose their privileged status unless they remain, or become, privileged in some other way.  Given that both the originally contemplated action and the one subsequently commenced arose out of the same fire and involved essentially the same parties, the rules regarding termination of privilege might have suggested that the new action revived the litigation privilege. 

However, the Court, without discussing this aspect of the law, reached the opposite conclusion.  A reasonable inference to draw from this is that, in the Court’s view, even a renewed contemplation of litigation or a new law suit based on grounds similar to those originally contemplated, and involving essentially the same parties, will not revive litigation privilege in these circumstances.

 

Development of the Dominant Purpose Test

 

The majority of the Court in General Accident expressed reservations about the “zone of privacy” analysis that formed the basis of the Commissioner’s previous approach to litigation privilege.  Mr. Justice Carthy (author of the most detailed majority reasons on this point) states, at pages 331-2:

 

The “zone of privacy” is an attractive description but does not define the outer reaches of protection or the legitimate intrusion of discovery to assure a trial on all of the relevant facts.  The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client.  In effect, litigation privilege is the area of privacy left to a solicitor after the current demands of discoverability have been met.  There is a tension between them to the extent that when discovery is widened, the reasonable requirements of counsel to conduct litigation must be recognized.

 

Our modern rules certainly have truncated what would previously have been protected from disclosure.  Under r. 31.06(1) information cannot be refused on discovery on the ground that what is sought is evidence.  Under r. 31.06(2) the names and addresses of witnesses must be disclosed.  A judicial ruling in Dionisopoulous v. Provias (1990), 71 O.R. (2d) 547 (H.C.) compelled a party to reveal the substance of the evidence of a witness, demonstrating that it is not just the Rules of Civil Procedure that may intrude upon traditional preserves.

 

Rule 31(06)(3) provides for discovery of the name and address and the findings, conclusions and opinions of an expert, unless the party undertakes not to call that expert at trial.  This is an example of the Rules Committee recognizing the right to proceed in privacy to obtain opinions and to maintain their confidentiality if found to be unfavourable.  The tactical room for the advocate to manoeuvre is preserved while the interests of a fair trial and early settlement are supported.  The actual production of an expert’s report is required under r. 53.03(1).  Similar treatment is given to medical reports under rules 33.04 and 33.06.

 

In a very real sense, litigation privilege is being defined by the rules as they are amended from time to time.  Judicial decisions should be consonant with those changes and should be driven more by the modern realities of the conduct of litigation and perceptions of discoverability than by historic precedents born in a very different context.

 

Justice Carthy explains the Court’s decision to adopt the dominant purpose test as follows, at pages 332-3:

 

One historic precedent that in my view does have modern application but that has been given a varied reception in Ontario is the House of Lord’s decision in Waugh v. British Railways Board, [1979] 2 All E.R.1169.  That case concerned a railway inspector’s routine accident report.  It was prepared in part to further railway safety and in part for submission to the railway’s solicitor for liability purposes.  It was held that while the document was prepared in part for the purpose of obtaining legal advice in anticipated litigation, that was not its dominant purpose and thus it must be produced.

 

After considering authorities that had protected documents from production where one purpose of preparation was anticipated litigation, Lord Wilberforce concluded at pp. 1173 and 1174:

 

It is clear that the due administration of justice strongly requires disclosure and production of this report: it was contemporary; it contained statements by witnesses on the spot; it would be not merely relevant evidence but almost certainly the best evidence as to the cause of the accident.  If one accepts that this important public interest can be overridden in order that the defendant may properly prepare his case, how close must the connection be between the preparation of the document and the anticipation of litigation?  On principle I would think that the purpose of preparing for litigation ought to be either the sole purpose or at least the dominant purpose of it...

...

 

It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply.  On the other hand to hold that the purpose, as above, must be the sole purpose, would, apart from difficulties of proof, in my opinion, be too strict a requirement, and would confine the privilege too narrowly...

 

This dominant purpose test has contended in Canada with the substantial purpose test.  Appellate courts in Nova Scotia, New Brunswick, British Columbia and Alberta have adopted the dominant purpose standard: see Davies v. Harrington (1980), 115 D.L.R. (3d) 347 (N.S.C.A.); McCaig v. Trentowsky (1983), 148 D.L.R. (3d) 724 (N.B.C.A.); Voth Bros. Construction (1974) Ltd. v. North Vancouver Board of School Trustees (1981), 23 C.P.C. 276 (B.C.C.A.) and Nova, An Alberta Corp. v. Guelph Engineering Co., [1984] 3 W.W.R. 314 (Alta. C.A.).

 

In Ontario, the predominant view of judges and masters hearing motions is that the substantial purpose test should be applied.  This, of course, provides a broader protection against discovery than the dominant purpose test and, in my view, runs against the grain of contemporary trends in discovery.  These authorities find their root in a decision of this court in Blackstone v. The Mutual Life Insurance Company of New York, [1944] O.R. 328 where Robertson C.J.O. said at p. 333:

 

I agree with the proposition of the defendant’s counsel that it is not essential to the validity of the claim of privilege that the document for which privilege is claimed should have been written, prepared or obtained solely for the purpose of, or in connection with, litigation then pending or anticipated.  It is sufficient if that was the substantial, or one of the substantial, purposes then in view.

 

The real issue in that case was whether the reports in question were prepared in anticipation of litigation.  Gillanders J.A. wrote concurring reasons with no mention of “substantial purpose”, and similarly there was none in the dissenting reasons of Kellock J.A.  Even as an obiter remark by Robertson C.J.O. it is not presented as a reasoned conclusion based upon a consideration of the authorities and does not match substantial purpose against dominant purpose.  I do not consider the quoted statement binding on this court and, based upon policy considerations of encouraging discovery, would join with the other appellate authorities in adopting the dominant purpose test.

 

In Solicitor-Client Privilege in Canadian Law by Ronald D. Manes and Michael P. Silver,  (Butterworth’s: Toronto, 1993), pages 93-94, the authors offer some assistance in applying the dominant purpose test, as follows:

 

The “dominant purpose” test was enunciated [in Waugh v. British Railways Board, [1979] 2 All E.R. 1169] as follows:

 

A document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

 

It is crucial to note that the “dominant purpose” can exist in the mind of either the author or the person ordering the document’s production, but it does not have to be both.

 

The test really consists of three elements, each of which must be met.  First, it must have been produced with contemplated litigation in mind.  Second, the document must have been produced for the dominant purpose of receiving legal advice or as an aid to the conduct of litigation - in other words for the dominant purpose of contemplated litigation.  Third, the prospect of litigation must be reasonable - meaning that there is a reasonable contemplation of litigation.

 

 

Thus, there must be more than a vague or general apprehension of litigation.

 

Applying the direction of the Courts and experts in the area of litigation privilege, in my view, a record must satisfy each of the following requirements in order to meet the “dominant purpose” test:

 

1.         The record must have been created with existing or contemplated litigation in mind.

 

2.         The record must have been created for the dominant purpose of existing or contemplated litigation.

 

3.         If litigation had not been commenced when the record was created, there must have been a reasonable contemplation of litigation at that time, i.e. more than a vague or general apprehension of litigation.

 

In applying this test, it is necessary to bear in mind the time sensitive nature of this type of privilege, and the fact that, even if the dominant purpose for creating a record was contemplated litigation, privilege only lasts as long as there is reasonably contemplated or actual litigation.

 

Application of the “dominant purpose” test in the present appeal

 

The situation at the property has led to a number of legal proceedings.  I will analyse each of them  separately in applying the “dominant purpose” test.

 

Proceedings Which Have Concluded

 

On August 21, 1997, charges were laid against the property owner for failing to comply with the June 25, 1997 Notice of Violation.  On October 29, 1997, the owner was found guilty in absentia and fined.  In my view, this litigation was reasonably contemplated by the City only when it became clear that the owner would not comply with the Notice, which likely occurred shortly before charges were laid.  However, because these proceedings are now terminated and I have not been advised of any ongoing appeal, I find that, based on the approach taken in General Accident, there is no reasonable contemplation of litigation in this regard.  Consequently, litigation privilege cannot be claimed for records created in relation to these charges.

 

On November 14, 1997, the FSC ordered the Fire Department to proceed with the removal and disposal of the combustible contents of the property, if other requirements of the order were not satisfied.  On February 19, 1998, Justice Crane lifted a previous order (dated December 9, 1997) partially staying the disposal of the goods, and also requiring further court approval for proposed methods of disposal.  On March 12, 1998, Justice Crane made a second order approving the proposed method of disposal and manner of disposition of proceeds, and directed the City to issue an order under the Fire Protection and Prevention Act, 1997  requiring the owner to pay the costs of removal, storage and disposal.  These two orders led to further proceedings instituted by the property owner and one of its principals.  Both orders were the subject of a motion for leave to appeal in Divisional Court and the March 12 order was also appealed to the Court of Appeal.

 

The Court of Appeal dealt with this matter on December 15, 1999 (the day after the City submitted its supplementary representations).  The Court made a ruling, based on the agreement of the parties, to the effect that Justice Crane was without jurisdiction to issue his February 19, 1998 and March 12, 1998 orders.  The Court stated (as reported at [1999] O.J. No. 4929):

 

Both parties agree that Crane J. had no jurisdiction to make any order.  The Order of the F.S.C. of November 14, 1997, permitting the City to remove and dispose of combustible material, stands.  There is no outstanding challenge to that order before the Court.

 

The City did not refer to the pending settlement of these proceedings in its supplementary representations.  However, given the agreement of the parties that Justice Crane lacked jurisdiction to make “any order”, it appears that the motion to Divisional Court would be moot.  Therefore, I find that the proceedings before the Divisional Court and the Court of Appeal cannot now give rise to a reasonable contemplation of litigation, and litigation privilege cannot be claimed for records created in connection with them.  This finding also applies to the proceedings before the FSC in respect of the removal and disposal order.

 

I have determined that the FSC’s appeal file regarding the Order to Pay Costs has been concluded.  As stated above, that appeal was scheduled to be heard on October 20, 1998.  On consent of both the owner and the City, it was adjourned on October 14, 1998.  The FSC confirmed the adjournment on October 15, 1998 and has considered this matter closed since that date.  As a result, I find that the proceedings before the FSC cannot now give rise to a reasonable contemplation of litigation, and litigation privilege cannot be claimed for records created in connection with the original Order to Pay Costs.

 

Ongoing Proceedings

 

A court action was commenced by the property owner and two numbered companies on April 14, 1998 against the City and other parties, seeking damages in the amount of $5,000,000 on the basis of alleged conspiracy to deprive the plaintiffs of their goods, alleged interference with commercial activities and alleged violation of the plaintiffs’ constitutional rights. 

 

A second action was initiated on April 30, 1998 by a named individual and a numbered company against the City and other parties, including the property owner, seeking damages in the amount of $700,000 on the basis that the City, in conjunction with the other parties, had interfered with the delivery of certain materials which the plaintiffs had agreed to purchase from the property owner.

 

I accept that these proceedings remain ongoing and, if the other components of the “dominant purpose” test are established, could form the basis for a litigation privilege claim.

 

The City takes the position that these two ongoing proceedings were in contemplation from the outset, and that the termination of the other prior proceedings does not mean that litigation privilege for records linked to the ongoing proceedings but created in the relation to these prior proceedings has been lost.  In its original representations, the City states:

 

On the basis of the history of the proceedings set forth above, all of the records would qualify under “branch 2" of section 12, since, in the “initial response phase”, they were prepared for the use of the in-house counsel employed by the City of Hamilton ... in giving legal advice with respect to the serious situation at [the property], and in contemplation of the subsequent prosecution and the administrative proceedings before the Fire Safety Commission.

 

The City recognizes that the “litigation privilege” which a municipality may claim for the work product obtained or generated by its legal counsel, may be lost when the litigation comes to an end.  In this respect, the City submits that even though the prosecution was concluded in November of 1997, and the several Orders made by the Hamilton Fire Department and the Fire Marshal’s Office have now expired, related litigation which has arisen directly from those earlier legal and administrative proceedings continues to the present time, in what may be referred to as the “consequential litigation phase” of the City’s involvement with the situation which was discovered in the building at [the property] in May of 1997.  As set forth in the Notice of Appeal, and the Statement of Claim filed by [a numbered company] and [a named individual] and [a named individual] and [a named company], respectively, the lawfulness and propriety of the actions taken by the Hamilton Fire Department are fundamental issues in these pending proceedings.

 

On this same issue, the City’s supplementary representations state:

 

It is the position of the City of Hamilton that the adoption of the dominant purpose test by the Ontario Court of Appeal, for determining whether or not litigation privilege can be invoked in the course of the civil litigation process, has relatively little impact upon the validity of the City’s claim for exemption of the records, in question, in the circumstances of this appeal.  As stated in our initial submissions, dated 31 August 1999, from 30 May 1997 right through to the conclusion of certain prosecutions under the Fire Code in October of that year, the Hamilton Fire Department contemplated that some form of litigation would ensue from its investigation of the storage of large quantities of combustible materials in the warehouse building located at [the property] in the City of Hamilton.

 

The City later adds that:

 

In this appeal, relating to records created in response to the situation at [the property], litigation was in contemplation throughout the period from 1 January 1997 to 24 August 1998, which is the period for which access to records has been requested.

 

I do not agree.  First, the responsive period for the request is January 1, 1997 to April 24, 1998, not August 24, 1998.  Also, in my view, based on General Accident, I must assess when there was a reasonable contemplation of litigation and when that reasonable expectation, or any actual ensuing litigation, came to an end.  Generally speaking, litigation privilege does not survive the termination of litigation.  In deciding whether the dominant purpose test has been met, it is necessary to assess the ongoing proceedings and their subject matter, as well as the date they could reasonably have been

 

in contemplation, and to examine in detail the relationship between these factors and the records for which litigation privilege has been claimed.  The City has made no attempt to do this in its representations.

 

Neither the City’s representations nor the records themselves were helpful in determining when the action initiated against the City on April 14, 1998 (action #1) could have been reasonably contemplated by the City.  Consequently, absence evidence to the contrary, the earliest date I can establish for this purpose is the date the City received notice of action #1, April 14, 1998.

 

I find that the action initiated on April 30, 1998 (action #2), was reasonably contemplated by the City as of April 15, 1998, when the City received correspondence from one of the eventual plaintiffs expressing dissatisfaction with the way the City handled the removal process.

 

I will now apply the requirements of the “dominant purpose” test to records created in the context of these two actions, since they are the only two proceedings that could potentially support a claim for litigation privilege under part 3 of the test.

 

Applying the test to records created in the context of action #1 and action #2

 

As far as action #1 is concerned, I find:

 

•           Record 1320 is a letter created by the property owner and addressed to the City.  Although this record may have been created by the property owner for the dominant purpose of litigation, in my view, any privilege that might attach to it would necessarily belong to the property owner or others having a common interest.  It is not privileged in the hands of the City.

 

•           Records dealing with issues in the action that were created by City or Fire Department personnel on or after April 14, 1998 were created with this action in mind, thereby meeting part 1 of the test.  I have determined that action #1 was in reasonable contemplation by the City at that time, thereby satisfying part 3 of the test.

 

•           Not all of the records created by City and Fire Department personnel after April 14, 1998 were created for the dominant purpose of the contemplated litigation.  During April 1998, the Fire Department and the City were in the process of completing the sale and disposal of the property’s combustible contents.  Based on my review of the records, I find that those records created during this period that deal with the sale and disposal were created for the dominant purpose of the sale and disposal of the combustible items, and not for the dominant purpose of the contemplated litigation.  Records falling into this category do not satisfy part 2 of the test.

 

Regarding action #2, I find:

 

•           Certain records were created by the named individual or numbered company that are the plaintiffs in action #2.  Although these records may have been created by the plaintiffs for the dominant purpose of litigation, in my view, any privilege that might attach to them would necessarily belong to the named individual and/or numbered company or others having a common interest.  They are not privileged in the hands of the City.

 

•           Records created either by City or Fire Department personnel that deal with the sale and disposal of the combustible items in relation to one of the plaintiffs in this action,  after April 15, 1998, were created with contemplated litigation in mind, thereby meeting part 1 of the test.  I have determined that action #2 was in reasonable contemplation by the City at that time, thereby satisfying part 3 of the test.

 

•           Not all of the records created by City and Fire Department personnel after April 15, 1998 were created for the dominant purpose of the contemplated litigation.  During April 1998, the Fire Department and the City were in the process of completing the sale and disposal of the property’s combustible contents.  Based on my review of the records, I find that those records created during this period that deal with the sale and disposal were created for the dominant purpose of the sale and disposal of the combustible items, and not for the dominant purpose of the contemplated litigation.  Records falling into this category do not satisfy part 2 of the test.

 

The following lists set out those records which satisfy all three requirements of the “dominant purpose” test.  I find that all of these records qualify for litigation privilege and are exempt under section 12 of the Act.

 

Records relating to action #1

 

Records 845-846, 851, 1320 and 2232

 

Records relating to action #2

 

Record 848-850

 

I find that all other records for which litigation privilege has been claimed do not meet the dominant purpose test and therefore do not qualify for exemption under section 12 on that particular basis.

 

Non-privileged documents that find their way into the lawyer’s brief for litigation

 

Prior to the Court of Appeal’s decision in General Accident, the law recognized that litigation privilege would at times apply to records that could not meet either the “dominant purpose” or “substantial purpose” test.  This aspect of litigation privilege is sometimes referred to as the “work product” rule.  It is also frequently described as having potential application to records “not originally privileged” that find their way into the litigation brief.

 

This aspect of litigation privilege is discussed in General Accident, but the members of the panel did not agree on whether it has continued application, nor on whether the facts before the Court required it to be considered at all.  For this reason it is necessary to analyze this aspect of the decision to determine what effect, if any, General Accident has had on this aspect of litigation privilege.

 

In General Accident, Justice Carthy applied the “dominant purpose” test to all documents for which litigation privilege was claimed, including documents not originally privileged, but which had “found their way” into the lawyer’s brief for litigation.  These records consisted of a cash float sheet, additional time sheets from the motel, and a video taken by the former employee.  Caselaw in existence prior to General Accident indicates that where the lawyer does selective copying and applies knowledge and skill to the selection of records for inclusion in the brief, litigation privilege will apply. 

 

Justice Carthy explains his approach to these records as follows at pages 334-5:

 

An important element of the dominant purpose test is the requirement that the document in question be created for the purposes of litigation, actual or contemplated.  Does it apply to a document that simply appears in the course of investigative work?  The concept of creation has been applied by some courts to include copying of public documents and protection of the copies in the lawyer’s brief.  In Hodgkinson v. Simms et al. (1988), 55 D.L.R. (4^th) 577 the majority of the British Columbia Court of Appeal applied the dominant purpose test but then, relying principally on Lyell v. Kennedy (1884), 27 Ch. D. 1 (C.A.), held that copies of public documents gathered by a solicitor’s office attained the protection of litigation privilege.  In Lyell v. Kennedy the protected copies were of tombstone inscriptions and Cotton L.J. upheld the privilege, stating at p. 26:

 

In my opinion it is contrary to the principle on which the Court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him.

 

The majority reasons in Hodgkinson were written by McEachern C.J.B.C. who, at p. 578, identified the issue as being:

 

...whether photocopies of documents collected by the plaintiff’s solicitor from third parties and now included in his brief are privileged even though the original documents were not created for the purpose of litigation.

 

After a thorough analysis of the authorities, the principal one of which is Lyle v. Kennedy, the Chief Justice observed at p. 583:

 

In my view the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing himself to advise or conduct proceedings, proceed with complete confidence that the protected information or material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to anyone except with the consent of his client.

 

And at p. 589:

 

It is my conclusion that the law has always been, and in my view should continue to be, that in circumstances such as these, where a lawyer exercising legal knowledge, skill, judgment and industry has assembled a collection of relevant copy documents for his brief for the purpose of advising on or conducting anticipated or pending litigation he is entitled, indeed required, unless the client consents, to claim privilege for such collection and to refuse production.

 

Craig J.A., in dissenting reasons, put aside the older cases as not manifesting the modern approach to discovery and espoused a rigid circumscribing of litigation privilege.  He bluntly concluded at p. 594:

 

I fail to comprehend how original documents which are not privileged (because they are not prepared with the dominant purpose of actual or anticipated litigation) can become privileged simply because counsel makes photostatic copies of the documents and puts them in his “brief”. This is contrary to the intent of the rules and to the modern approach to this problem. If a document relates to a matter in question, it should be produced for inspection.

 

I agree with the tenor of Craig J.A.'s reasons. The majority reasons reflect a traditional view of the entitlement to privacy in a lawyer's investigative pursuits. It is an instinctive reflex of any litigation counsel to collect evidence and to pounce at the most propitious moment. That's the fun in litigation! But the ground rules are changing in favour of early discovery. Litigation counsel must adjust to this new environment and I can see no reason to think that clients may suffer except by losing the surprise effect of the hidden missile.

 

Returning to the specific topic, if original documents enjoy no privilege, then copying is only in a technical sense a creation. Moreover, if the copies were in the possession of the client prior to the prospect of litigation they would not be protected from production. Why should copies of relevant documents obtained after contemplation of litigation be treated differently? Suppose counsel for one litigant finds an incriminating filing by the opposite party in the Security Commission's files. Could there be any justification for its retention until cross‑examination at trial? Further, such copies, if relevant in their content, must be revealed in oral discovery under r. 31.06(1) which provides that questions must be answered even though the

 

information sought is evidence.

 

The production of such documents in the discovery process does little to impinge upon the lawyer's freedom to prepare in privacy and weighs heavily in the scales supporting fairness in the pursuit of truth.

 

In disagreeing with the majority reasons in Hodgkinson I am at the same time differing from the reasons and result in Ottawa‑Carleton (Regional Municipality) v. Consumers' Gas Go. (1990), 74 O.R. (2d) where the Ontario Divisional Court held copies of public documents to be privileged. Montgomery J., the motions judge in that case indicated a preference for the reasoning of Craig J.A. in Hodgkinson. The Divisional Court preferred to follow the majority. In the present case the Divisional Court appears to agree with my view, although without analysis of authorities.

 

This court does not easily turn aside authorities such as Lyle [sic] v. Kennedy that have stood as the law for many years. However, consistent with the theme of these reasons, deference must be given to modern perceptions of discoverability in preference to historic landmarks that no longer fit the dynamics of the conduct of litigation. The zone of privacy is thus restricted in aid of the pursuit of early exchange of relevant facts and the fair resolution of disputes.

 

He then applies these principles to the float records, the additional time sheets and the video, and concludes that they to not qualify for litigation privilege because they do not satisfy the dominant purpose test.  Justice Carthy states at page 340:

 

None of these were created or prepared for the purpose of litigation and so, on the principles enunciated earlier in these reasons, they cannot qualify for any form of privilege ....

 

The other two Court of Appeal Justices in General Accident, Justice Doherty and Justice Rosenberg, disagree with Justice Carthy’s conclusions on this point.  Both of them conclude that the items mentioned by Justice Carthy in reaching his decision on these records were not actually before the Court in General Accident.

 

Justice Doherty discusses the issue as follows at pages 360-361:

 

In the course of his analysis of the litigation privilege claim, Carthy J.A. holds that copies of non-privileged documents placed into a lawyer’s brief in the course of preparation for litigation are never protected by litigation privilege [paras. 33-41].  I do not concur in that part of his analysis.  That issue does not arise directly on this appeal from the holding of Kurisko J. and the Divisional Court that the copies of the videotape and business records provided to Mr. Eryou by Mr. Pilotte are not privileged.  My colleague has addressed the question, however, no doubt because of the Divisional Court’s observation at p. 796 that:

 

It is true that a copy of an original document incorporated by a

solicitor into his litigation brief becomes privileged, but that privilege does not extend to the original.

 

Carthy J.A., while acknowledging the line of authority which supports the position taken by the Divisional Court, prefers the view of Craig J.A., in dissent in Hodgkinson v. Simms et al. (1988), 55 D.L.R. (4^th) 577 at 594, where Craig J.A. observed:

 

I fail to comprehend how original documents which are not privileged (because they are not prepared with the dominant purpose of actual or anticipated litigation) can become privileged simply because counsel makes photostatic copies of the documents and puts them in his “brief.”

 

I do not disagree with the observation of Craig J.A.  A non-privileged document should not become privileged merely because it is copied and placed in the lawyer’s brief.  I would not, however, go so far as to say that copies of non-privileged documents can never properly be the subject of litigation privilege.  In Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 at 61-62 (N.S.W.S.C.), Wood J. opined:

 

In my view, it is incorrect to state, as a general proposition, that a copy of an unprivileged document becomes privileged so long as it is obtained by a party, or its solicitor, for the sole purpose of advice or use in litigation.  I think that the result in any such case depends on the manner in which the copy or extract is made or obtained.  If it involves a selective copying or results from research or the exercise of skill and knowledge on the part of the solicitor, then I consider privilege should apply [Lyell v. Kennedy (No. 3) (1884), 27 Ch. D. 1].  Otherwise, I see no reason, in principle, why disclosure should be refused of copies of documents which can be obtained elsewhere, and in respect of which no relationship of confidence, or legal profession privilege exists.

 

The review of the case law provided in Manes and Silver, Solicitor-Client Privilege in Canadian Law, supra, at 170-73 suggests to me that Wood J.’s analysis is the appropriate one:  see also Commissioner Australian Federal Police v. Propend Finance Pty. Ltd. (1997), 141 A.L.R. 545 (H.C.).  I would leave the question of when, if ever, copies of non-privileged documents can be protected by litigation privilege to a case where the issue is squarely raised and fully argued.

 

Rosenberg J.A. treats this issue as follows at page 370:

 

It follows that I agree with Carthy J.A.’s statement of the litigation privilege and its application to the facts of this case subject only to one reservation.  As to the copies of non-privileged documents, like Doherty J.A., I find the reasons of Wood J. in

Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (N.S.W.S.C.) persuasive.  However, since that issue does not arise in this case, I would prefer to leave the question open.

 

It is evident from these comments that Justices Doherty and Rosenberg are in the majority on this issue.  Consequently, in my view, this entire discussion by all three justices is obiter, and the “dominant purpose” test set out in General Accident does not preclude the potential application of litigation privilege to records that were not created for the purpose of litigation but have “found their way” into the lawyer’s brief.  Instead, the law as it stood prior to General Accident applies, as set out in Hodgkinson v. Simms, supra, and Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd., supra, both of which base their reasoning on Lyell v. Kennedy, supra.  Since Justices Doherty and Rosenberg both quoted the Nickmar analysis with approval, I will adopt its statement of the test, which is as follows:

 

... the result in any such case depends on the manner in which the copy or extract is made or obtained.  If it involves a selective copying or results from research or the exercise of skill and knowledge on the part of the solicitor, then I consider privilege should apply.

 

The types of records to which the Nickmar test can be applied have been described in various ways.  Justice Carthy referred to them in General Accident as “public” documents.  Nickmar characterizes them as “documents which can be obtained elsewhere”, and Hodgkinson calls them “documents collected by the ... solicitor from third parties and now included in his brief”.  Applying the reasoning from these various sources, I have concluded that the types of records that may qualify for litigation  privilege under this test are those that are publicly available (such as newspaper clippings and case reports), and others which were not created with the litigation in mind.  On the other hand, records that were created with real or reasonably contemplated litigation in mind cannot qualify for litigation under the Nickmar test and should be tested under “dominant purpose”.

 

In this appeal, the records for which this type of privilege is potentially available consist of inspection reports, monitoring reports, letters and notes to file that were prepared by Fire Department personnel in the course of routine administration of fire prevention regulations.  None of these types of records were prepared with litigation in mind.

 

The City states that these records, among others, were provided to in-house lawyers and outside counsel by City employees.  However, the City’s representations do not indicate whether requests for these particular records or types of records were made by in-house or outside counsel, or if they were provided by various City employees in response to a blanket request for all information created around the various issues and events at the subject property.  Having reviewed the records, in my view, the latter situation appears to be more likely.    Nor does the City address the issue of whether lawyers selectively copied records or exercised skill and knowledge in deciding which ones to include in the litigation brief.  In fact there is no evidence that the lawyers played any part in determining which documents were photocopied and placed in their brief.

 

Consequently, I find that the test from Nickmar (and Hodgkinson and Lyell) has not been met in the circumstances of this appeal, and those records not originally privileged under the “dominant purpose” test, but which “found their way” into the lawyer’s brief, do not qualify for litigation privilege.

 

Records to be Disclosed

 

The following is a list of those records I find do not qualify for exemption under the litigation privilege component of the section 12 exemption claim, and for which no other exemptions have been claimed by the City.  These records should be disclosed to the appellant, and I will include a provision to that effect in this order.

 

Records 1-162, 164, 174, 187, 188, 189, 222-223, 230, 240, 244, 272-273, 286, 289, 302, 318, 327, 349, 350, 351, 352, 360, 424, 427, 439, 443, 445-449, 463-466, 467, 468, 472, 511, 516, 530-532, 533, 539-541, 595, 604, 608, 610, 636-637, 670, 671, 672, 690-691, 692-693, 711, 712-714, 715, 722, 729, 734, 735-736, 769, 770-772, 773-774, 780, 795, 796-797, 820-822, 823-824, 839, 861-863, 898-921, 922-1186, 1187-1191, 1193-1213, 1214, 1215, 1261-1262, 1265, 1268, 1273-1274, 1275, 1277, 1290-1291, 1292, 1293, 1294, 1295, 1296, 1298, 1299-1301, 1302-1303, 1304-1306, 1312-1313, 1314-1316, 1317-1318, 1321, 1322, 1323, 1327-1330, 1331-1335, 1336-1339, 1340-1343, 1346-1348, 1349-1351, 1352-1354, 1355-1357, 1360, 1361, 1364-1370, 1372-1374, 1419, 1437, 1440, 1443, 1444, 1447, 1453, 1468, 1478-1484, 1485-1489, 1493-1500, 1509, 1523-1524, 1579, 1583, 1584, 1591-1593, 1594-1595, 1648-1649, 1657, 1658, 1666, 1667, 1668, 1714, 1715, 1718, 1720, 1721-1723, 1725, 1728-1730, 1731-1734, 1735-1736, 1748-1750, 1751, 1754, 1755-1756, 1757-1759, 1760-1762, 1763-1765, 1766-1773, 1774-1776, 1777-1778, 1779-1781, 1782-1784, 1786, 1787, 1789, 1790-1792, 1798-1799, 1800-1801, 1802-1808, 1809-1811, 1817-1823, 1839-1844, 1852-1855, 1856-1927, 1928, 1929-1930, 1932, 1933, 1963, 1968, 1969, 1972, 1976, 1983-1986, 1987, 1988-1993, 1994-2003, 2004-2009, 2010-2016, 2017-2021, 2022-2025, 2026-2030, 2031-2033, 2034-2038, 2039-2041, 2042-2043, 2044-2047, 2048-2051, 2052-2055, 2056-2060, 2089-2091, 2099, 2157, 2158, 2165-2166, 2181-2183, 2191-2193, 2214, 2220, 2223, 2263, 2281, 2291, 2328, 2443, 2498, 2530, 2531, 2537-2538, 2543-2546, 2571-2573, 2578, 2582, 2583-2584, 2586, 2615, 2623, 2653-2654, 2668-2673, 2675, 2678, 2695-2699, 2700-2701, 2743-2744, 2770, 2771-2773, 2780-2781, 2783-2784, 2791, 2796-2798A, 2799, 2802-2803, 2806-2809, 2816-2826, 2827-2838, 2839, 2840, 2870, 2876, 2878, 2902, 2903, 2904, 2908, 2945-2947, 2951-2961, 3008, 3049, 3050, 3081-3083, 3105, 3254-3256, 3275, 3325, 3346-3347, 3361, 3370-3371, 3385, 3386, 3390-3391, 3410-3412 and 3413.

 

SOLICITOR-CLIENT COMMUNICATION PRIVILEGE

 

In order for a record to be subject to the common law solicitor-client communication privilege, the City must provide evidence that the record satisfies the following requirements:

 

1.         (a)        there is a written or oral communication,  and

 

(b)        the communication must be of a confidential nature,  and

 

(c)        the communication must be between a client (or his agent) and a legal advisor,  and

 

(d)       the communication must be directly related to seeking, formulating or giving legal advice.

 

(Order 49, see also Orders M-2 and M-19)

 

At common law, solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining professional legal advice.  The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation (Order P-1551).  Direct communications between a solicitor and client are not affected by the termination of litigation.

 

This privilege has been described by the Supreme Court of Canada as follows:

 

... all information which a person must provide in order to obtain legal advice and which is given in confidence for that purpose enjoys the privileges attaching to confidentiality.  This confidentiality attaches to all communications made within the framework of the solicitor-client relationship ... [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 at 618, cited in Order P‑1409]

 

The privilege has been found to apply to “a continuum of communications” between a solicitor and client:

 

... the test is whether the communication or document was made confidentially for the purposes of legal advice.  Those purposes have to be construed broadly.  Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.  But it does not follow that all other communications between them lack privilege.  In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice  may be required or appropriate on matters great or small at various stages.  There will be a continuum of communications and meetings between the solicitor and client ...  Where 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, privilege will attach.  A letter from the client containing information may end with such words as “please advise me what I should do.”  But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice.  Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.

 

(Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.), cited in Order P‑1409)

 

The City’s representations on the application of solicitor-client communication privilege state:

 

Several of the records which were created during this time frame, (apart from the

issue of the law enforcement exemption under section 8 of the Act, which will be addressed below) attract the common law solicitor-client privilege under branch 1 of section 12.  The City submits that it is readily apparent, on the face of several of the individual documents that they are:

 

(a)        written communications, or written records of meetings held in response to the situation at [the property], and

 

(b)        clearly of a confidential nature, given the seriousness of the situation under investigation, and the sensitivity of laying charges or taking administrative actions, and

 

(c)        the communications were between officers of the Hamilton Fire Department, and other City Departments, and members of the City of Hamilton Law Department, namely, [two named individuals], and

 

(d)       the communications were directly related to seeking, formulating, or giving legal advice, with respect to the scope of the City’s legal authority to deal with this situation, and the precise nature of the lawful actions which the City could take in order to discharge its responsibilities under the Fire Protection and Promotion Act, 1997.

 

I have divided the records at issue into 7 categories, based on similarity of subject matter and context.

 

E-Mails, some with attached documents, exchanged between Fire Department personnel, City personnel and counsel - Records 169, 173, 176, 207, 208, 225, 227, 336, 337, 348, 356-358, 374, 375, 376, 384, 389, 428, 429, 431, 484, 515, 529, 534-538, 602-603, 838, 1307-1310, 1326, 1362, 1363, 1414, 1424-1429, 1435, 1436, 1439, 1461-1462, 1511, 1589, 2148, 2212, 2213, 2215, 2218, 2219, 2221, 2222, 2224 through 2231, 2236 through 2241, 2244, 2245, 2248 through 2262, 2264 through 2269, 2271 through 2280, 2282 through 2290, 2292 through 2327, 2329, 2330, 2331, 2332, 2333 through 2365, 2367 through 2370, 2372 through 2382, 2499-2514, 2550, 2680, 3245, 3253, 3324 and 3447

 

I accept the City’s submissions as they relate to these e-mail records.  They clearly constitute written communications between Fire Department personnel, City personnel and legal counsel, and are confidential in nature.  I am satisfied that there is a solicitor-client relationship between the various personnel and the lawyers involved, and that the subject matter of the records relates directly to the seeking or the giving of legal advice regarding legal issues concerning the property.

 

Therefore, I find that all of these records are exempt from disclosure pursuant to the solicitor-client communication privilege component of the section 12 exemption.

 

Meeting minutes or notes/e-mails from meetings where counsel was present - Records 185, 190, 226, 260, 377-378, 379-383, 385-387, 388, 392-393, 394-395, 396, 422, 1297, 2233, 3419-3421 and 3432

 

Records 185, 190, 226, 260, 377-378, 379-383, 385-387, 388, 392-393, 396, 422 and 1297 consist of the handwritten notes made by one Fire Department official concerning meetings attended by other Fire Department/City personnel with City lawyers and/or outside legal counsel.  At least one lawyer was present at each of these meetings.  Some of the notes detail what counsel stated or raised at the meeting.

 

Nova Scotia Pharmaceutical Society v. R. (1988) 225 A.P.R. 70 (N.S.T.D.), dealt with the question of solicitor-client communication privilege and a meeting attended by counsel.  The Court stated (at page 73):

 

During the hearing I expressed the opinion that of itself the mere presence of the solicitor at the meeting would not spread an umbrella of privilege over all of the proceedings and I anticipated that in some instances it would be appropriate to recognize the claim as to some portions and disallow it as to others.  To those previous comments I would add that it is necessary at the same time to bear in mind the dictum cited by Mr. Justice Lamer in the Descoteaux case (supra) that privilege ought not to be “frittered away”.

 

The Court went on to find that minutes of the meeting which referred to “... legal advice and the opinion of the Society’s solicitor” were privileged.  It had previously concluded that the intermixture of topics in the minutes would “render impracticable any attempt to sift the legal from nonlegal subject matters”.

 

As far as the notes at issue in this appeal are concerned, I am satisfied that the meetings were held for the purpose of dealing with issues surrounding the subject property, and that the notes detail confidential communications between lawyers and their clients, the City and/or the Fire Department personnel.  I further find that these communications were directly related to the giving and receiving of legal advice, and that the intermixture of topics within the minutes would render any attempt to sift privileged from non-privileged information “impracticable”, as was the case in Nova Scotia Pharmaceutical.  Therefore, I find that these records qualify for solicitor-client communication privilege and are exempt from disclosure pursuant to section 12 of the Act.

 

Records 394-395, 2233, 3419-3421 and 3432 are typed notes or e-mails of meetings held to discuss matters relating to the property.  These records were generated by a Fire Department official.  From the content of the records I have determined that the meetings were confidential and that City lawyers were present.  I am satisfied that legal advice was either given or sought at each of the meetings.  Records 394-395 are the minutes of a meeting attended by a City lawyer, and contain the advice provided by the lawyer. The contents of Record 2233 reflect legal advice provided following a meeting.  I find that disclosure of Records 394-395 and 2233 would reveal the legal advice sought and given.  Record 2268 is the minutes of a meeting held to develop a disposal plan.  Although not all of this record contains legal advice, the portions that do are intertwined with a discussion of the facts of the case in a manner that renders any separation of privileged from non-privileged material impracticable. Record 3432 consists of legal advice given by a City lawyer at the meeting.   I find that all of these records satisfy the requirements of solicitor-client communication privilege and are exempt under section 12 of the Act.

 

 

Memorandum between Fire Department personnel and counsel - Records 2767-2768

 

Record 2767 is a memorandum from a Fire Department official to a City solicitor regarding the property.  It details an upcoming legal proceeding and the advice given by the solicitor on how to proceed on a specific issue.  Record 2768 is attached to Record 2767, and reviews issues relating to the property.  These records are confidential written communications between a solicitor and client directly related to the giving and receiving of legal advice.  Therefore, I find that these records qualify for exemption under section 12 of the Act.

 

Notes and reports to file by Fire Department personnel regarding discussions with counsel - Records 178, 179, 180-182, 199, 200-201, 202-203, 204, 214-215, 218-219, 228-229, 235-236, 241, 261-262, 266, 275-276, 277, 281, 287, 296, 334-335, 341, 346, 438, 441, 444, 473, 520-521, 589-590, 783, 813-814, 815-816, 847, 2066, 2173-2180, 2574-2575, 3414, 3415-3416, 3423-3425, 3427-3430 and 3435

 

Records 241 and 3423-3425 are handwritten notes by a Fire Department official regarding the December 9, 1997 court date.  These notes consist of what happened in court and the judge’s findings.  I am not satisfied that these notes were used in the giving or receiving of legal advice.  Moreover, because these notes only detail observations of what happened in open court, I am not satisfied that they are confidential in nature.

 

The other records in this group were all written by Fire Department personnel regarding discussions with legal counsel on ongoing issues relating to the property.  I find that these documents record confidential legal advice given by counsel to Fire Department personnel and, therefore, qualify for solicitor-client communication privilege and are exempt under section 12 of the Act.

 

Draft documents - Records 432-437 and 1430-1434

 

Records 432-437 are various pages in the City’s draft Notice of Motion for the March 12, 1998 court date, with handwritten notes and questions added in margins by a Fire Department official.  Records 1430-1434 are a copy of a draft contract between the City and a contractor. They contain handwritten notes, questions and comments by a Fire Department official which were posed to legal counsel.  I find that these records qualify as a confidential written communication between the Fire Department officials and the City’s Legal Department for the purpose of seeking or giving legal advice.

 

Accordingly, I find that these records qualify for solicitor-client communication privilege and are exempt under section 12 of the Act.

 

Memo-to-file by counsel - Record 474

 

Record 474 is a typed memo-to-file composed by a City lawyer which details the chronology of court orders issued between March 17-19, 1998.  There are indications on the face of the record that the chronology was provided to a Fire Department official.  I find that this record qualifies for exemption under section 12 as a confidential written communication made for the purpose of giving legal advice.

 

Correspondence between Fire Department personnel and counsel - Records 613-616, 2426-2428, 2439-2441, 2539-2542, 2948-2950, 3039-3044, 3047-3048, 3067-3068, 3127-3133, 3257-3258, 3298-3320 and 3402-3406

 

All of these records, with the exception of Records 3298-3320, consist of faxes from a Fire Department official to City lawyers, enclosing letters from the owner of the property and requesting advice or comment.  I find that these records are confidential written communications sent for the purpose of seeking legal advice.

 

Records 3298-3320 were all bundled together as one package.  Record 3298 is an e-mail by a City lawyer to Fire Department personnel commenting on and providing advice on the package of draft letters which make up Records 3299-3320.  I find that these records are written communications from the lawyer to the Fire Department officials sent for the purpose of giving legal advice.  As such, they qualify for solicitor-client communication privilege and are exempt under section 12.

 

To summarize, all exemption claims made by the City on the basis of the solicitor-client communication privilege component of section 12 of the Act are upheld, with the exception of Records 241 and 3423-3425.

 

LAW ENFORCEMENT

 

Section 8(2)(a)

 

Introduction

 

Section 8(2)(a) states:

 

A head may refuse to disclose a record,

 

that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;

 

In order for a record to qualify for exemption under section 8(2)(a) of the Act, the City must satisfy each part of the following three-part test:

 

1.         the record must be a report; and

 

2.         the report must have been prepared in the course of law enforcement, inspections or investigations; and

 

3.         the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.

 

(Order 200 and Order P-324)

 

The records for which section 8(2)(a) has been claimed were prepared by various City and Fire Department officials in connection with the Fire Department’s remedial activities concerning the property.

 

Requirements of the Test

 

Part One

 

The word “report” is not defined in the Act.  However, previous orders have found that in order to qualify as a report, a record must consist of a formal statement or account of the results of the collation and consideration of information.  Generally speaking, results would not include mere observations or recordings of fact (Order 200).

 

This interpretation was affirmed by Senior Adjudicator David Goodis in Order MO-1238.  In that case, Senior Adjudicator Goodis rejected arguments to the effect that this interpretation was too narrow.  He stated (at page 8):

 

... an overly broad interpretation of the word “report” could create an absurdity.  If “report” means “a statement made by a person” or “something that gives information”, all information prepared by a law enforcement agency would be exempt, rendering sections 8(1) and 8(2)(b) through (d) superfluous.  The Legislature could not have intended that result.  As stated in Public Government for Private People:  The Report of the Commission on Freedom of Information and Individual Privacy 1980, vol. 2 (Toronto:  Queen’s Printer, 1980) (the “Williams Commission”) (at p. 294):

 

The need to exempt certain kinds of law enforcement information from public access is reflected in all of the existing and proposed freedom of information laws we have examined.  This is not surprising; if they are to be effective, certain kinds of law enforcement activity must be conducted under conditions of secrecy and confidentiality.  Neither is it surprising that none of these schemes simply exempts all information relating to law enforcement.  The broad rationale of public accountability underlying freedom of information schemes also requires some degree of openness with respect to the conduct of law enforcement activity.  Indeed, if law enforcement is construed broadly to include the enforcement of many regulatory schemes administered by the provincial government, an exemption of all information pertaining to law enforcement from the general right to access would severely undermine the fundamental objectives of a freedom of information law.

 

This office’s interpretation of the word “report” in section 8(2)(a) is not only plausible, but also promotes the purposes of the legislation.  The Commissioner’s interpretation takes into account the public interest in protecting the integrity of law enforcement procedures which underlies the purpose of the exemption.  To the extent

that any harm could reasonably be expected to result from disclosure of law enforcement records, the various exemptions in sections 8(1) and 8(2)(b) to (d) may apply (for example, where disclosure could reasonably be expected to interfere with a law enforcement matter under section 8(1)(a), or deprive a person of the right to a fair trial under section 8(1)(f)).  In addition, certain law enforcement records which consist of a formal statement or account of the results of the collation and consideration of information qualify for exemption under section 8(2)(a), regardless of the potential for harm from disclosure [see, for example, Order MO-1192].  At the same time, this interpretation takes into account the public interest in openness as articulated by the Williams Commission, since records which do not meet the specific definition of report, and which do not otherwise qualify for exemption under the remaining provisions of section 8, cannot be withheld under this exemption.

 

In Order MO-1238, Senior Adjudicator Goodis made it clear that the title of a document will not necessarily determine whether or not it is a “report”.  For example, he found that section 8(2)(a) did not apply to a Field Inspection Report or an Inspection Record of a municipal building department, both of which contained entries made over a period of time, on the basis that documents of this kind did not satisfy the first requirement of the section 8(2)(a) exemption test.  Similarly, in Order M-158, former Adjudicator Anita Fineberg found that a number of memoranda met the definition of “report”, while a number of others did not. 

 

I will follow the same approach in determining whether the various records at issue in this appeal are “reports”.  In so doing, I will consider the substance and nature of the documents, and assess whether they consist of a “formal statement or account of the results of a collation and consideration of information”, as opposed to a “mere observation or recording of facts”.

 

Part Two

 

The City has not provided representations on the question of whether the Fire Department and, in particular, the Chief Fire Prevention Officer and various Fire Inspectors who created records did so “in the course of” carrying out an inspection function.

 

Clearly, fire safety-related inspection activities took place at the property, and records were prepared in this context.  In the absence of representations on this issue, my task will be to review the content of each record and determine whether it is clear on its face, given the context, that it was prepared in the course of these inspection activities.

 

Part Three

 

The City also did not address the issue of whether the Fire Department is “an agency which has the function of enforcing and regulating compliance with a law.”

 

When the City began its activities concerning the property, the applicable statutory framework was provided by the Fire Marshals Act, which was repealed and replaced by the Fire Protection and Prevention Act, 1997 , S.O. 1997, c. 4  (the FPPA ), effective October 29, 1997.  A new Fire Code (O. Reg. 388/97) also came into force on November 21, 1997.

It is clear that the City’s activities regarding the property were conducted in the context of inspections, which are dealt with in Part VI of the FPPA.  These provisions appear to be directed primarily to the Fire Marshal, however section 19(1)  of the FPPA  states that the Fire Marshal, an assistant to the Fire Marshal, or a fire chief is an “inspector” for the purposes of Part VI of the FPPA, thereby expanding the scope of inspection functions beyond the Fire Marshal’s Office.  Section 6(6)  of the FPPA  permits the fire chief to delegate his or her responsibilities under section 19 (among other sections) to “a firefighter or class of firefighters”.  “Firefighter” is defined in section 1(1)  of the FPPA  as “a fire chief and any other person employed in, or appointed to, a fire department ...”

 

In my view, Part VI of the FPPA gives a mandate to the Fire Department, or at the very least, to the fire chief, to “enforce or regulate” compliance with a law, namely the Fire Code.  An example of this mandate is found in section 21(1)  of the FPPA , which states in part that:

 

An inspector who has carried out an inspection of land or premises under section 19 or 20 may order the owner or occupant of the land or premises to take any measure necessary to ensure fire safety on the land and premises and may for that purpose order the owner or occupant,

 

(b)        to make structural and other repairs or alterations, including material alterations, to the buildings or structures;

 

(c)        to remove combustible or explosive material or any thing that may constitute a fire hazard;

 

(f)        to do anything respecting fire safety including anything relating to the containment of a possible fire, means of egress, fire alarms and detection, fire suppression and the preparation of a fire safety plan;

 

(g)        to remedy any contravention of the fire code.

 

Part VII of the FPPA deals with “Offences and Enforcement”.  It creates a number of offences which are subject to prosecution under the Provincial Offences Act.  Significantly, it also confers direct powers related to enforcement.  In particular, section 32  of the FPPA  states:

 

The Fire Marshal, an assistant to the Fire Marshal or a fire chief may, in addition to any other rights he or she may have under this Act, apply to a judge of the Ontario Court (General Division) [Superior Court of Justice] for an order,

 

(a)        requiring a person to comply with an inspection order made under section 21 or with an order made under section 25 or 26 if the person has failed to comply with the order; or

 

(b)        requiring a person to remedy any contravention of a provision of the fire code.

 

 

In addition, section 35 permits the Fire Marshal, assistant Fire Marshal or fire chief, on his or her own motion, to issue an order to pay the costs incurred by the province or a municipality in connection with carrying out the terms of an inspection order of the Fire Marshal.

 

As noted previously, the FPPA  came into force and repealed the Fire Marshals Act, effective October 29, 1997.  The City’s initial inspection of the property took place May 30, 1997. A Fire Marshal’s Order and a Notice of Violation were issued in June 1997.  A prosecution of the owner was launched in August 1997, all before the proclamation of the FPPA .  However, section 18 of the Fire Marshals Act contained provisions similar to those found in section 21  of the FPPA  regarding inspections and the power to make remedial orders for, among other things, breaches of the Fire Code.  These powers extend to “assistants to the Fire Marshal”, and by virtue of section 8(1), to the fire chief.  Accordingly, my conclusion that the Fire Department has a mandate to enforce or regulate compliance with a law, namely the Fire Code, under the FPPA  also applies to the prior inspection activities that took place pursuant to the Fire Marshals Act.

 

Application of the Test

 

Records 2751-2755 and 3287-3288

 

The City submits:

 

Record 2752 satisfies the requirements for exemption under section 8(2)(a) of the Act in that it is prepared under the authority of the Chief Fire Prevention Officer outlining the situation as it relates to security of [the property].  The memorandum reports to the Deputy Chief of the Hamilton-Wentworth Regional Police Service and officially requests the attention of that Police Service to the security issue at the premises.

 

I am not satisfied that Record 2752 constitutes “a report”, as that term is used in section 8(2)(a).  This record is a memorandum from the Chief Fire Prevention Officer to the Chief of the Hamilton-Wentworth Regional Police requesting additional “drive-bys” at the property and instructions on procedure to be followed if the property was not properly secured.  In my view, the record merely sets out cursory information about the property and requests assistance; it does not consist of a formal statement or account of the results of a collation and consideration of information.  I have reached the same conclusion for Records 2751, 2753-2755 and 3287-3288, which are of a similar nature.  Accordingly, Records 2751-2755 and 3287-3288 do not satisfy the first part of the test and do not qualify for exemption under section 8(2)(a) of the Act.

 

Letters

 

Records 2387-2391, 2557-2559, 2929-2941, 2962-2963, 3064, 3284-3286, 3351-3352, 3381-3384 and 3397-3399 consist of letters sent by Fire Department personnel to the Fire Marshal’s Office regarding  activity at the property.  They are accurately characterized as “status reports” concerning Fire Department activities arising out of the closure of the building pursuant to section 21(2) (b) of the FPPA , including future actions to be taken by Fire Department personnel.  As such, I find that they are “reports” for the purpose of section 8(2)(a).   I am also satisfied that these records were prepared “in the course of” inspections undertaken by the Fire Department in discharging their law

 

enforcement functions, thereby satisfying all three requirements for exemption under section 8(2)(a).

 

Records 2793-2795 consist of a letter from the Chief Fire Prevention Officer to the FSC requesting an order for corrective actions at the property.  This letter contains the Fire Department’s formal statement of action that needs to be taken on the property based on the consideration of information obtained during inspection activities undertaken pursuant to the FPPA .  As such, I find that it is properly characterized as a “report” and qualifies for exemption under section 8(2)(a).

 

Record 291 is a letter from the City of Burlington Deputy Fire Chief to the Chief of the Hamilton Fire Department. This record was not prepared in the course of law enforcement inspection activities undertaken by the Burlington Fire Department, and therefore does not qualify for exemption under section 8(2)(a) of the Act.

 

Records 2419-2421 consist of memoranda from a private company to Fire Department personnel.  There is no information before me to suggest that the private company is an agency that has the function of enforcing and regulating compliance with a law, nor that this record was prepared “in the course of” law enforcement, investigations or inspections.  Similarly, Records 2745-2746 consist of letters from Ontario Hydro to a named individual.  Again, there is nothing before me to suggest that Ontario Hydro was in the course of any law enforcement investigations or inspections when this letter was prepared, nor that Ontario Hydro is empowered to enforce or regulate compliance with the Fire Marshals Act or the FPPA .  Therefore I find that Records 2419-2421 and 2745-2746 do not qualify for exemption under section 8(2)(a).

 

Records 834-837, 2392, 2399-2400, 2444-2445, 2496-2497, 2564-2565, 2605, 2622, 2702-2704, 2705-2708, 2709, 2710, 2711, 2912, 3006-3007, 3214-3215, 3278-3279, 3281-3283, 3295-3297, 3372-3373, 3374-3376, 3377-3378 and 3379-3380 are all letters from various individuals or Fire Department personnel requesting or providing information, or reviewing facts.  None of the information in these records consists of a formal statement or account of the results of a collation and consideration of information, and therefore these records do not qualify as “reports”, and fail to meet the requirements for exemption under section 8(2)(a) of the Act.

 

Record 1982 consist of a letter which reflects the outcome of certain court proceedings.  It cannot accurately be described as a “formal statement or account of the results of the collation and consideration of information” and fails to qualify as a “report” for that reason.  Consequently, Record 1982 does not qualify for exemption under section 8(2)(a).

 

Records 3400-3401 are a letter from the Office of the Fire Marshall to the City Fire Chief addressing administrative issues concerning a Fire Marshal Order.  This record is clearly not a report and does not qualify for exemption under section 8(2)(a).

 

Memoranda

 

Records 2467, 2488-2490, 2555-2556, 2580-2581, 2585, 2624, 2637-2639 (and duplicate Records 2762-2763), 2640-2641, 2712-2713, 2769, 2785-2788, 2801, 2810, 2871, 2875, 3263, 3280, 3289-3291 and 3292-3294 all consist of memoranda sent by the Chief Fire Prevention Officer to various other City or Fire Department personnel, elected officials or an official of the Ministry of the

Environment.  None of the information in these records consists of a formal statement or account of the results of a collation and consideration of information, and therefore these records do not qualify as “reports”, and fail to meet the requirements for exemption under section 8(2)(a) of the Act. 

 

Records 3344 and 3345 are memoranda sent by a City engineer to the Chief Fire Prevention Officer outlining the results of a site inspection on the property.  They contain formal accounts or the results of the inspection, including expert opinion on aspects of the ongoing investigation of the property.  As a result, I find that they are reports prepared in the course of law enforcement investigations or inspections, and both records qualify for exemption under section 8(2)(a).

 

Facsimiles

 

Records 865-866 and 1288-1289 consist of faxes sent by Fire Department personnel to an individual and a private company notifying them that they had been awarded the sale of certain goods.  None of the information in these records consists of a formal statement or account of the results of a collation and consideration of information, and therefore these records do not qualify as “reports”, and fail to meet the requirements for exemption under section 8(2)(a) of the Act.

 

Records 1634-1636, 1637-1639, 1640-1642 and 1643-1646 consist of faxes with attached documents sent by Fire Department personnel to various companies notifying them of work to be done at the property.  These records contain factual information only, not statements or accounts of the results of a collation or consideration of information.  As such, they are not reports, and these records do not qualify for exemption under section 8(2)(a).

 

Records 2662-2663 and 2714-2717 consist of faxes sent by the Fire Department to the Ministry of the Environment outlining observations made about the property.  They too do not qualify for exemption under section 8(2)(a) for the same reasons as the other facsimiles.

 

Records 505-506 and 2429-2433 consist of faxes sent from companies to the Fire Department.  I have been provided with nothing to suggest that these companies have the function of enforcing and regulating compliance with a law, nor that these records were prepared in the course of law enforcement, investigations or inspections.   Therefore, I find that these records do not qualify for exemption under section 8(2)(a).

 

Records 1977-1980 consist of a fax sent from Fire Department personnel to the Ministry of Consumer and Commercial Relations requesting information.  This record is an administrative document which does not qualify as a report.  Therefore, Records 1977-1980 do not qualify for exemption under section 8(2)(a).

 

Records 2718-2722 consist of a fax from the FSC to the Fire Department, attaching the FSC’s decision.  The records also contain handwritten margin notes, presumably made by Fire Department personnel.  I find that this document is not a report prepared in the course of law enforcement, investigations or inspections, and for that reason these records do not qualify for exemption under section 8(2)(a).

 

Records 2913-2915 consist of a fax sent by the Fire Department to the owner’s lawyer.  These

records outline administrative information only, not formal statements or considerations and collations of information.  Therefore, these records do not qualify as a report and are not exempt under section 8(2)(a).

 

Records 3368-3369 consist of a fax cover sheet containing no substantive information.  Clearly, these records are not a report and do not qualify for exemption under section 8(2)(a).

 

Notes to File

 

Records 166, 167, 171, 172, 175, 177, 193, 196, 205-206, 245, 263, 264-265, 267, 268-271, 274, 280, 282, 284, 285, 288, 292, 293-294, 295, 297, 300-301, 310-311, 315, 319, 321, 325, 339-340, 343, 344, 347, 417-418, 741-745, 766-768, 825-829, 840-841, 1344-1345, 1420-1421B, 1441-1442, 1448-1448B, 1450, 1451, 1459-1460, 1492-1492A, 1518-1522, 1575, 1576-1577, 1578, 1662-1664, 1665, 1669, 1670-1673, 1674, 1675, 1676, 1688-1691, 1692-1698, 1699-1702, 1703-1709, 1710-1713, 1716-1717, 1719, 1724, 1741-1744, 1745-1747, 1785, 1788, 1812-1816, 1825, 1827-1828, 1845, 1946, 2520, 2590, 2635, 2942-2944, 3084, 3431, 3433-3434 and 3436-3439 consist of notes to file created by Fire Department personnel which detail day-to-day occurrences taking place at the property.  Some notes have attached documents.  These records contain statements of fact or observations and are not accurately considered formal statements or accounts of the collation or consideration of the inspection activities of the Fire Department.  For this reason, these records are not “reports” and therefore do not qualify for exemption under section 8(2)(a) of the Act.

 

Records 3123-3126 consist of a handwritten note by Fire Department personnel regarding a court proceeding.  This record reviews the arguments of the City and the owner’s lawyer and the court’s finding.  I find that this record merely outlines factual observations of what occurred in court, and does not constitute a report.  For that reason, Records 3123-3126 do not qualify for exemption under section 8(2)(a).

 

Record 3422 is a handwritten note by Fire Department personnel regarding the past history of dealings with the property.  I find that this record simply reviews facts regarding these past dealings and contains no formal account of consideration of these activities and therefore does not qualify as a report and is not exempt under section 8(2)(a).

 

E-Mails

 

Records 423 (and duplicate Record 2270), 2234 and 2235 consist of e-mails between Fire Department and City personnel. These records review facts and issues in connection with the Fire Department’s inspection activities, draw conclusions, and identify actions that need to be taken in this regard.  Therefore, I find that these records are “reports” which were prepared in the course of the Fire Department’s inspection activities under the FPPA , and they qualify for exemption under section 8(2)(a).

 

Records 220, 1824, 2210, 2211, 2216, 2217, 2224, 2242, 2243, 2246 and 2366 are also e-mails between City and Fire Department personnel.  However, their content consists only of facts, not formal statements or accounts of the results of a collation and consideration of information.  For that reason these records are not “reports”, and do not qualify for exemption under section 8(2)(a).

 

Other records

 

Records 1375-1376 consist of sample completed Fire Marshal’s Orders.  Clearly, they do not qualify as reports, and are also unrelated to any law enforcement investigation involving the property.  Therefore, these records do not qualify for exemption under section 8(2)(a).

 

Records 1947-1962 and 2727-2742 consist of an inspection report prepared by the Fire Department in conjunction with the request to the FSC for an authorization to undertake work pursuant to the FPPA .  Records 2625-2632 and 2679 consist of information prepared by the Fire Department to inform various City officials about the Fire Department’s inspection activities at the property.  I find that these records satisfy the definition of  “report”, and that they were prepared in the course of inspections undertaken during the course of law enforcement activities.  Therefore, I find that these records are exempt under section 8(2)(a) of the Act.

 

Records 2633, 2789 and 2790 are summaries prepared by the Fire Department for the FSC regarding various issues at the property.  They discuss ways in which the property does not comply with the Fire Code and poses a safety and fire hazard to the public.  I am satisfied that these summaries consist of a formal statement or account of the results of a collation and consideration of information, and that they were prepared in conjunction with the request for authorization to undertake work pursuant to the FPPA .  Therefore, I find that these records qualify for exemption under section 8(2)(a).

 

Records 1970-1971, 2064-2065, 2076-2078, 2080-2082, 2097-2098, 2100-2102, 2127-2129, 2168-2169, 2184-2185, 2446-2459 and 2515-2519 consist of “informations” completed by Fire Department personnel in the context of laying charges concerning the property.  These documents do not resemble “reports”, either in form or substance.  They are not intended to “report” to anyone, and are in fact simply documents required in order to initiate a prosecution.  I find that these records do not qualify as “reports” and they are not properly exempt under section 8(2)(a) of the Act.

 

Records 1981 and 2079 are Notices of Documentary Evidence and Affidavit of Service.  Records 2765-2766 consist of an Affidavit of Issuance.  Record 3276 is a summary of the legal actions that have taken place in regard to the property.  All of these records contain statements of fact, not formal accounts of the results of a collation and consideration of information, and therefore are not accurately characterized as “reports” for the purpose of section 8(2)(a).  I find that all of these records do not qualify for exemption under section 8(2)(a).

 

Record 2579 is a copy of a Fire Marshal Order.  It does not contain a formal account of the results of a collation and consideration of information so does not qualify as a report.  I find that this record is not exempt under section 8(2)(a).

 

Records 2747-2750 and 2761 are notices of the FSC hearing.  They indicate that a hearing is to be held on a certain date at a specific time.  I find that these records do not qualify as “reports” and do not qualify for exemption under section 8(2)(a).

 

Records 2415-2416 comprise a report prepared by a private company and sent to the Fire Department.  There is nothing before me to suggest that this company is “an agency which has the function of enforcing and regulating compliance with a law” and, therefore, I find that this record does not qualify for exemption under section 8(2)(a).

 

Records 1650-1651, 1652, 1653, 1654, 1655 and 1656 are videotapes and photographs of the specified site.  These records clearly do not qualify as “reports”, since they do not contain a formal consideration of the information contained on the records.  Rather, they simply record the physical state of the property and its contents.  Accordingly, I find that these records do not qualify for exemption under section 8(2)(a) of the Act.

 

Record 1677 consists of a page with two business cards photocopied on it.  Record 3426 is a phone message slip for Fire Department personnel.  Records 3440-3446 appear to be excerpts from the Fire Code.  Record 3448 appears to be a magazine, news or newsletter article discussing amendments to the Fire Marhals Act.  Clearly these records are not reports and do not qualify for exemption under section 8(2)(a).

 

To summarize, the only records which qualify for exemption under section 8(2)(a) of the Act are:

 

Records 423, 1947-1962, 2234, 2235, 2270, 2387-2391, 2557-2559, 2625-2632, 2633, 2679, 2727-2742, 2789, 2790, 2793-2795, 2929-2941, 2962-2963, 3064, 3284-3286, 3344, 3345, 3351-3352, 3381-3384 and 3397-3399.

 

Section 8(2)(c)

 

The City claims section 8(2)(c) as the basis for exempting Records 210-211, 212-213, 224, 310-311, 315, 321 and 325.  These records comprise a handwritten note reflecting discussions between Fire Department personnel and an engineering firm.

 

Section 8(2)(c) of the Act states:

 

A head may refuse to disclose a record,

 

that is a law enforcement record if the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability;

 

I adopt the following interpretation made by Senior Adjudicator David Goodis in Order PO-1747 in determining whether disclosure of Records 210-213 could reasonably be expected to result in the type of harm described in section 8(2)(c):

 

The words “could reasonably be expected to” appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated “harms”.  In the case of most of these exemptions, in order to establish that the particular harm in question “could reasonably be expected” to result from disclosure of a record, the party with the burden of proof must provide “detailed and convincing” evidence to establish a “reasonable expectation of probable harm” [see Order P-373, two court decisions on judicial review of that order in Ontario

(Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of Labour) v. Big Canoe, [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998), Toronto Doc. 28/98 (Div. Ct.)].

 

The City did not provide representations on section 8(2)(c) of the Act.

 

The City’s representations do not provide the type of detailed and convincing evidence necessary to establish that disclosure of these records could reasonably be expected to expose the Fire Department personnel who created these records, or the individual paraphrased in them, to civil liability.  Nor is this harm clear on the face of these records.  Therefore, I find that Records 210-211, 212-213, 224, 310-311, 315, 321 and 325 do not qualify for exemption under section 8(2)(c) of the Act.

 

Section 8(1)(c)

 

The City claims section 8(1)(c) as the basis for denying access to Records 1650 through 1656, 3263 and Record 3280.  Records 1650-1651 are videotape recordings of the alleged Fire Code deficiencies at the property, including the combustible contents of the building.  Records 1652 through 1656 are photographs of the property which also show alleged Fire Code deficiencies and the combustible contents of the building.  Records 3263 and 3280 are internal memoranda sent to certain Fire Department staff.

 

Section 8(1)(c) states that:

 

            A head may refuse to disclose a record if the disclosure could reasonably be expected to,

 

reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;

 

The quality of evidence required to substantiate this exemption claim is the same as that described above for section 8(2)(c).

 

In order to qualify for exemption, the City must provided detailed and convincing evidence that public awareness of the particular technique or procedure reflected in the records would hinder or compromise its effective utilization.  Techniques or procedures already generally known to the public would normally not fall within the scope of this exemption claims. Moreover, where a technique is generally known, it would not be “revealed” by disclosure of a record which identifies this technique. (Orders P-170, M-761 and P-963)

 

The City did not make representations on the application of section 8(1)(c) of the Act.

 

In my view, the use of photography and video recording in the context of law enforcement activity is a matter of common public knowledge, and I am not prepared to accept that disclosure of records that reflects these activities would reveal any kind of investigative technique or procedure not already widely known.  Therefore I find that section 8(1)(c) does not apply to these records.

 

Record 3280 is a memorandum from the Chief Fire Prevention Officer to all Fire Department staff.  It describes actions that have been taken at the property, and advises staff of proposed future activities.  Record 3263 is a memorandum from a Fire Department official to the Chief Fire Prevention Officer describing conversations with residents in the neighbourhood of the property.   No techniques or procedures not commonly known to the public are described in either of these records, and I find that they do not qualify for exemption under section 8(1)(c) of the Act.

 

I also find that Record 3263 clearly does not contain information which in any way relates to law enforcement intelligence gathering activities and is not exempt under section 8(1)(g) of the Act.

 

ADVICE OR RECOMMENDATIONS

 

“Advice” for the purposes of section 7(1) of the Act must contain more than mere information.  Generally speaking, advice pertains to the submission of a suggested course of action which will ultimately be accepted or rejected by its recipient during the deliberative process.  “Recommendations” are to be viewed in the same vein.  (Orders 118, P-348, P-363 (upheld on judicial review in Ontario (Human Rights Commission) v. Ontario (Information and Privacy Commissioner) (March 25, 1994), Toronto Doc. 721/92 (Ont. Div. Ct.), P-883 (upheld on judicial review in Ontario (Minister of Consumer and Commercial Relations) v. Ontario (Information and Privacy Commissioner) (December 21, 1995), Toronto Doc. 220/95 (Ont. Div. Ct.), leave to appeal refused [1996] O.J. No. 1838 (C.A.))

 

Information in records which would reveal the advice or recommendations is also exempt from disclosure under section 7(1) of the Act. 

 

This exemption purports to protect the free flow of advice and recommendations within the deliberative process of government decision-making or policy-making (Orders 94, M-847).

 

In Order PO-1690, former Adjudicator Holly Big Canoe considered whether a draft environmental report could be considered exempt under section 13(1) (the provincial equivalent to section 7(1)).  She stated:

 

A draft document is not, simply by its nature, advice or recommendations [Order P‑434].  In order to qualify for exemption under section 13, the record must recommend a suggested course of action that will ultimately be accepted or rejected during the deliberative process of government policy-making and decision-making.  Although I am satisfied that the final version of this report is intended to be used during the deliberative process, it simply does not contain advice or recommendations, nor does it reveal advice or recommendations by inference.  Accordingly, I find that section 13(1) does not apply.

 

I will follow the same approach in this appeal.

 

The City claims that Records 361-370, 397-416, 1192, 1501-1508, 1512-1517, 1846-1851 and 2642-2644 qualify for exemption under section 7(1).  These records are all draft documents, and contain handwritten notes, corrections, and additions in both the margins and body of the documents. 

 

Records 361-370 are various draft versions of recommendations from the Fire Chief to City Council relating to storage of combustible items at the property.  Records 397-416 and 1501-1508 are draft requests for a quotation, including suggestions made by a City lawyer to the Chief Fire Prevention Officer.  Record 1192 is a page out of a tender document with a handwritten note in the margin. Records 1512-1517 are also a draft request for a quotation, and include an e-mail by a City staff member making comments on the contents of the request.  Records 1846-1851 consist of a draft recommendation from the Fire Chief to City Council, including editing suggestions and an attached e-mail with further comments provided by a City lawyer to the Chief Fire Prevention Officer.  Records 2642-2644 consist of a draft Notice of Appeal prepared by the City, with suggested amendments noted on the records.  I find that all of these records qualify for exemption under section 7(1).  They contain suggested courses of action that can be accepted or rejected by various recipients during the deliberative process under consideration.  In the case of the e-mail messages, their disclosure could lead to accurate inferences as to the advice or recommendation contained in the attached records. 

 

Records 1269-1272 consist of a handwritten note, e-mail and recommendation from the Chief Fire Prevention Officer to the Fire Chief regarding the removal and disposal of the goods.  Record 1276 is a handwritten note prepared by the Chief Fire Prevention Officer which reflects the advice given by a City lawyer regarding the sale of goods to a company.  Record 1438 is an e-mail exchange which reflects a recommendation from a City employee to the Chief Fire Prevention Officer regarding funding approval options. I find that these records contain advice and recommendations and qualify for exemption under section 7(1) of the Act.

 

Records 1278-1279 comprise a draft recommendation from the Fire Chief to City Council regarding a tender for the disposal of combustible goods.  Records 1831 and 1832 consist of a draft recommendation with an attached e-mail regarding disposal of the goods.  The e-mail is from the Fire Chief to City personnel with comments about the terms and steps to be taken to obtain financing.  Record 2547 is a draft recommendation from the City Treasurer to City Council concerning the allocation of funding for disposal of combustible goods.  I find that all of these records contain advice and recommendations, or that their disclosure would permit others to draw an accurate inference as to the advice and recommendations provided by City and Fire Department personnel.  A such, I find that these records qualify for exemption under section 7(1) of the Act.

 

Record 2621 is a memorandum from a Fire Department official to a City Alderman regarding how to deal with media requests for information; Record 224 is a note to file by Fire Department official regarding a meeting with an Alderman; and Record 2211 is an e-mail between Fire Department personnel regarding a meeting with an Alderman.  These records does not include any advice or recommendation.  They merely provide the Aldermen with status reports regarding activities at the property, as well as facts and information concerning the interaction between the City and the media on issues relating to the property.  I find that Records 224, 2211 and 2621 do not qualify for exemption under section 7(1). 

 

Records 3362-3367 consist of a draft affidavit prepared by Fire Department personnel for a court action.  The records include extensive handwritten notes commenting on the content of the affidavit, and recommending changes.  I find that these records contain advice and recommendations as those terms are used in the Act, and they qualify for exemption under section 7(1).

 

Record 2366 is an e-mail from the Chief Fire Prevention Officer to the Fire Chief regarding a proposal for the disposal of the goods.  The e-mail refers to a meeting and discussion held regarding the proposal and sets out the recommendation of whether to accept or reject the proposal.  I find that this record qualifies for exemption under section 7(1) as it contains a recommendation to be accepted by the Fire Chief.

 

Records 3123-3126 consist of the handwritten notes taken by Fire Department personnel at a court proceeding.  These notes do not record any recommendations or advice given.  Rather, they are merely a recording of observations of what parties stated at the proceeding and the court’s finding.  I find that these records do not qualify for exemption under section 7(1).

 

Records 3287-3288 are a memorandum from a Fire Department official to the Deputy Police Chief, advising him of activity that has taken place on the property.  This memorandum provides information and outlines facts, but does not contain any advice or recommendations.  Therefore, I find that these records do not qualify for exemption under section 7(1).

 

Records 2064-2065, 2168-2169 and 2446-2459 consist of draft informations compiled to obtain warrants.  The records include handwritten notes commenting on the content of the draft documents, and recommending changes.  I find that these records contain advice and recommendations as those terms are used in the Act, and they qualify for exemption under section 7(1).

 

Record 1438 is a series of e-mails among various City and Fire Department officials concerning funding processes at the City.  The record contains a recommended course of action by City personnel for obtaining funding approval that could be accepted or rejected by Fire Department officials.  Therefore, I find that it qualifies for exemption under section 7(1).

 

Record 594 is a letter from a City lawyer to a company.  This letter simply informs the company of a possible course of action which may be considered by the Fire Department should the company decide to proceed in a certain manner.  I find that the contents of this record do not constitute advice or recommendations and it does not qualify for exemption under section 7(1).

 

Records 2718-2722 consist of the FSC’s decision with some handwritten margin notes.  The decision itself is clearly not exempt under section 7(1).  The notes simply comment on the decision, but do not offer any advice or recommendations and also do not satisfy the requirements of the section 7(1) exemption claim.

 

Records 166, 168, 220, 274, 295, 300-301, 316-317, 319, 1319, 1420-1421B, 1450, 1492-1492A, 2217, 2605, 2624, 2635, 2656, 2810, 3123-3126 and 3289-3291 are various e-mails, notes and memoranda regarding various issues involving the property.  Records 1364-1374 are instructions and court forms.  Records 2208-2209 and 2246 are e-mails among various City and Fire Department officials concerning media enquiries regarding the property.  Records 3281-3283 are a letter from the Fire Prevention Officer to the owner explaining actions taken at the property.  I find that none of these records qualify for exemption under section 7(1) because they do not contain information that relates to a suggested course of action which will ultimately be accepted or rejected by the recipient during the deliberative process.  These records involve requests for information, state that information was provided, or are draft documents which do not contain advice or recommendations.

 

Section 7(2)(a)

 

Section 7(2)(a) of the Act requires that factual information be disclosed as an exception to the section 7(1) exemption.  In Order 24, former Commissioner Sidney B. Linden stated that:

 

...’factual material’ does not refer to occasional assertions of fact, but rather contemplates a coherent body of facts separate and distinct from the advice and recommendations contained in the record.

 

I find that any factual information contained in the records that qualify for exemption under section 7(1) is so intertwined with the advice and recommendations that it is not possible to disclose the factual material without also disclosing exempt material (See Order P-920).

 

To summarize, I find that the following records qualify for exemption under section 7(1):

 

Records 361-370, 397-416, 1192, 1269-1272, 1276, 1278-1279, 1438, 1501-1508, 1512-1517, 1831, 1832, 1846-1851, 2064-2065, 2168-2169, 2366, 2446-2459, 2547, 2642-2644 and 3362-3367

 

ECONOMIC INTERESTS

 

The City claims section 11(e) as one basis for denying access to Records 485-489, 512, 576, 1824, 2371, 2393-2395, 2396-2398, 2422-2423, 2424-2425, 3045-3046, 3123-3126, 3264-3270,3326-3328, 3329-3330, 3348-3350, 3392-3393, 3400-3401 and 3407-3409.

 

Because I have already found that Records 2387-2391 qualify for exemption under section 8(2)(a), I will not deal with them here. 

 

For a record to qualify for exemption under section 11(e), each part of the following test must be established:

 

1.         the record must contain positions, plans, procedures, criteria or instructions; and

 

2.         the positions, plans, procedures, criteria or instructions must be intended to be applied to negotiations; and

 

3.         the negotiations must be carried on currently, or will be carried on in the future; and

 

4.         the negotiations must be conducted by or on behalf of an institution.

 

[Order M-92]

 

The City’s entire submissions on section 11(e) are as follows:

 

The financial aspect relative to the tendering process of the City for a satisfactory building into which the materials could be moved from [a named address], are stated in record 2387.  The fact that the City was not readily successful in locating an alternate site for the material could adversely affect the eventual contract (price) for such a site.

 

The information contained in records 3264 to 3270 report the details of a possible financial transaction between another party and the subject business.  The City claims exemption under section 11(e) of the Act for these records, for that reason.

 

The City’s submissions fail to establish the requirements of section 11(e) or any other part of the section 11 exemption claim.

 

In Orders MO-1199-F and MO-1264 Adjudicator Laurel Cropley found:

 

Previous orders of the Commissioner’s office have defined “plan” as “... a formulated and especially detailed method by which a thing is to be done; a design or scheme” (Order P‑229).

 

In my view, the other terms in section 11(e), that is, “positions”, “procedures”, “criteria” and “instructions”, are similarly referable to pre‑determined courses of action or ways of proceeding.

 

Having reviewed the records, I find that clearly none of them contain positions, plans, procedures, criteria or instructions, as those terms are used in section 11(e), and on that basis alone they do not qualify for exemption under that section of the Act.

 

ORDER:

 

1.                  I uphold the City’s decision to deny access to the following records:

 

169, 173, 176, 178, 179, 180-182, 185, 190, 199, 200-201, 202-203, 204, 207, 208, 214-215, 218-219, 225, 226, 227, 228-229, 235-236, 260, 261-262, 266, 275-276, 277, 281, 287, 296, 334-335, 336, 337, 341, 346, 348, 356-358, 361-370, 374, 375, 376, 377-378, 379-383, 384, 385-387, 388, 389, 392-393, 394-395, 396, 397-416, 422, 423, 428, 429, 431, 432-437, 438, 441, 444, 473, 474, 484, 515, 520-521, 529, 534-538, 589-590, 602-603, 613-616, 783, 813-814, 815-816, 838, 845-846, 847, 848-850, 851, 1192, 1269-1272, 1276, 1278-1279, 1297, 1307-1310, 1320, 1326, 1362, 1363, 1414, 1424-1429, 1430-1434, 1435, 1436, 1438, 1439, 1461-1462, 1501-1508, 1511, 1512-1517, 1589, 1831, 1832, 1846-1851, 1947-1962, 2064-2065, 2066, 2148, 2168-2169, 2173-2180, 2212, 2213, 2215, 2218, 2219, 2221,  2222, 2224 through 2231, 2232, 2233, 2234, 2235, 2236 through 2241, 2244, 2245, 2248 through 2262, 2264 through 2269, 2270, 2271 through 2280, 2282 through 2290, 2292 through 2327, 2329, 2330, 2331, 2332, 2333 through 2365, 2366, 2367 through 2370, 2372 through 2382, 2387-2391, 2426-2428, 2439-2441, 2446-2459, 2499-2514, 2539-2542, 2547, 2550, 2557-2559, 2574-2575, 2625-2632, 2633, 2642-2644, 2679, 2680, 2727-2742, 2767-2768, 2789, 2790, 2793-2795, 2929-2941, 2948-2950, 2962-2963, 3039-3044, 3047-3048, 3064, 3067-3068, 3127-3133, 3245, 3253, 3257-3258, 3284-3286, 3298-3320, 3324, 3344, 3345, 3351-3352, 3362-3367, 3381-3384, 3397-3399, 3402-3406, 3414, 3415-3416, 3419-3421, 3427-3430, 3432, 3435 and 3447.

 

2.                  I order the City to disclose the following records to the appellant by October 10, 2000:

 

Records 1-162, 164, 166, 167, 168, 171, 172, 174, 175, 177, 187, 188, 189, 193, 196, 205-206, 210-211, 212-213, 220, 222-223, 224, 230, 240, 241, 244, 245, 263, 268-271, 272-273, 274, 280, 282, 286, 288, 289, 291, 292, 297, 300-301, 302, 310-311, 315, 318, 319, 321, 325, 327, 343, 344, 347, 349, 350, 351, 352, 360, 417-418, 424, 427, 439, 443, 445-449, 463-466, 467, 468, 472, 511, 505-506, 516, 530-532, 533, 539-541, 576, 594, 595, 604, 608, 610, 636-637, 670, 671, 672, 690-691, 692-693, 711, 712-714, 715, 722, 729, 734, 735-736, 769, 770-772, 773-774, 780, 795, 796-797, 820-822, 823-824, 834-837, 839, 840-841, 861-863, 865-866, 898-921, 922-1186, 1187-1191, 1193-1213, 1214, 1215, 1261-1262, 1265, 1268, 1273-1274, 1275, 1277, 1288-1289, 1290-1291, 1292, 1293, 1294, 1295, 1296, 1298, 1299-1301, 1302-1303, 1304-1306, 1312-1313, 1314-1316, 1317-1318, 1319, 1321, 1322, 1323, 1327-1330, 1331-1335, 1336-1339, 1340-1343, 1346-1348, 1349-1351, 1352-1354, 1355-1357, 1360, 1361, 1364-1370, 1371, 1372-1374, 1375-1376, 1419, 1420-1421B, 1437, 1440, 1441-1442, 1443, 1444, 1447, 1448-1448B, 1450, 1451, 1453, 1459-1460, 1468, 1478-1484, 1485-1489, 1492-1492A, 1493-1500, 1509, 1518-1522, 1523-1524, 1575, 1576-1577, 1578, 1579, 1583, 1584, 1591-1593, 1594-1595, 1634-1636, 1637-1639, 1640-1642, 1643-1646, 1648-1649, 1650-1651, 1652, 1653, 1654, 1655, 1656, 1657, 1658, 1662-1664, 1665, 1666, 1667, 1668, 1669, 1670-1673, 1674, 1675, 1676, 1677, 1688-1691, 1699-1702, 1710-1713, 1714, 1715, 1716-1717, 1718, 1719, 1720, 1721-1723, 1724, 1725, 1728-1730, 1731-1734, 1735-1736, 1745-1747, 1748-1750, 1751, 1754, 1755-1756, 1757-1759, 1760-1762, 1763-1765, 1766-1773, 1774-1776, 1777-1778, 1779-1781, 1782-1784, 1785, 1786, 1787, 1789, 1790-1792, 1798-1799, 1800-1801, 1802-1808, 1809-1811, 1812-1816, 1817-1823, 1824, 1839-1844, 1845, 1852-1855, 1856-1927, 1928, 1929-1930, 1932, 1933, 1946, 1963, 1968, 1969, 1970-1971, 1972, 1976, 1977-1980, 1981, 1982, 1983-1986, 1987, 1988-1993, 1994-2003, 2004-2009, 2010-2016, 2017-2021, 2022-2025, 2026-2030, 2031-2033, 2034-2038, 2039-2041, 2042-2043, 2044-2047, 2048-2051, 2052-2055, 2056-2060, 2076-2078, 2079, 2080-2082, 2089-2091, 2097-2098, 2099, 2100-2102, 2117-2120, 2121-2123, 2124-2126, 2127-2129, 2135-2138, 2149-2151, 2157, 2158, 2165-2166, 2181-2183, 2184-2185, 2191-2193, 2194-2196, 2208-2209, 2210, 2211, 2214, 2217, 2220, 2223, 2243, 2246, 2263, 2281, 2291, 2328, 2371, 2399-2400, 2415-2416, 2419-2421, 2424-2425, 2442, 2443, 2467, 2488-2490, 2496-2497, 2498, 2515-2519, 2520, 2530, 2531, 2537-2538, 2543-2546, 2555-2556, 2564-2565, 2571-2573, 2578, 2579, 2580-2581, 2582, 2583-2584, 2585, 2586, 2590, 2605, 2615, 2621, 2622, 2623, 2624, 2635, 2637-2639, 2640-2641, 2653-2654, 2656, 2662-2663, 2668-2673, 2675, 2678, 2695-2699, 2700-2701, 2702-2704, 2705-2708, 2709, 2710, 2711, 2712-2713, 2714-2717, 2718-2722, 2743-2744, 2745-2746, 2751-2755, 2761, 2762-2763, 2765-2766, 2769, 2770, 2771-2773, 2780-2781, 2783-2784, 2785-2788, 2791, 2796-2798A, 2799, 2801, 2802-2803, 2804, 2806-2809, 2810, 2816-2826, 2827-2838, 2839, 2840, 2870, 2871, 2872-2874, 2875, 2876, 2878, 2902, 2903, 2904, 2908, 2912, 2942-2944, 2945-2947, 2951-2961, 3006-3007, 3008, 3049, 3050, 3081-3083, 3084, 3105, 3123-3126, 3214-3215, 3254-3256, 3263, 3275, 3276, 3278-3279, 3280, 3281-3283, 3287-3288, 3289-3291, 3292-3294, 3295-3297, 3325, 3346-3347, 3348-3350, 3361, 3368-3369, 3370-3371, 3372-3373, 3374-3376, 3377-3378, 3379-3380, 3385, 3386, 3390-3391, 3400-3401, 3410-3412, 3413 and 3455-3456.

 

3.                  I order the City to make an access decision to the appellant concerning Record 2634 in accordance with the provisions of sections 19, 21 and 22 of the Act by October 3, 2000.

 

4.                  I order the City to provide me with copies of the following records by October 3, 2000:

 

456, 457-458, 490-495, 665-666, 746-749, 798, 1358-1359, 1452, 2460-2462, 2664-2666, 3103-3104

 

5.                  I am required under sections 39(3) and 41(13) of the Act to give individuals and organizations whose interests may be affected by disclosure of the records (affected parties) notice and an opportunity to make representations.  Accordingly, I will defer my decision of the following records so that I may send a Supplementary Notice of Inquiry to the affected parties:

 

Individuals

163, 165, 170, 183-184, 186, 191-192, 194, 195, 197-198, 209, 216-217, 221, 231, 232-233, 234, 237-238, 239, 278-279, 283, 284, 285, 290, 295, 298-299, 303-308, 309, 312, 313-314, 316-317, 320, 322, 323-324, 326, 328-329, 330-331, 339-340, 342, 345, 353, 354, 359, 371, 390-391, 459-460, 461-462, 469, 470-471, 475-480, 481-482, 485-489, 507-508, 513-514, 517-518, 519, 522, 523-524, 525, 526, 527, 528, 542, 543-544, 545, 577, 578-579, 580, 581, 582, 583-584, 591-592, 593, 596-598, 599-601, 605-607, 609, 611-612, 617, 618-619, 620, 621-628, 629, 645-654, 655-664, 667-669, 673-682, 686-687, 688-689, 694-695, 696-698, 699-701, 702-708, 733, 737-740, 752-753, 754-758, 759-765, 766-768, 775-776, 777-779, 781-782, 784, 785-791, 799-800, 801-804, 805-808, 809-811, 812, 825-829, 830-831, 832-833, 842-844, 1219, 1232, 1241, 1250, 1324-1325, 1344-1345, 1445-1446, 1454-1455,1464-1465, 1633, 1659-1661, 1678-1680, 1681, 1682-1683, 1684, 1685, 1686-1687, 1692-1698, 1703-1709, 1726-1727, 1737-1740, 1741-1744, 1752-1753, 1788, 1793-1795, 1796-1797, 1825, 1826, 1827-1828, 1833-1834, 1938-1942, 2152, 2167, 2170-2172, 2197-2198, 2216, 2242, 2247, 2383, 2384-2386, 2392, 2401-2405, 2406-2414, 2417-2418, 2422-2423, 2429-2433, 2434-2438, 2444-2445, 2463-2466, 2468-2487, 2521-2523, 2524-2529, 2532-2534, 2548-2549, 2551, 2552-2554, 2560-2561, 2562-2563, 2566-2570, 2576-2577, 2587-2589, 2591-2604, 2606-2614, 2616-2619, 2636, 2645, 2646-2652, 2655, 2657-2661, 2667, 2674, 2676-2677, 2681-2683, 2684-2688, 2723-2726, 2747-2750, 2756-2760, 2764, 2782, 2800, 2805, 2841-2869, 2877, 2879-2901, 2905-2906, 2907, 2909-2911, 2913-2915, 2924-2928, 3005-3005A, 3009-3016, 3018-3020, 3021-3027, 3028-3030, 3031-3034, 3035-3036, 3037, 3038, 3045-3046, 3051-3055, 3056-3063, 3065-3066, 3085-3087, 3216-3221, 3222-3224, 3225-3237, 3238-3244, 3259-3262, 3264-3270, 3271-3274, 3321-3323, 3326-3328, 3329-3330, 3343, 3353, 3392-3393, 3394-3396, 3407-3409, 3417, 3418, 3422, 3423-3425, 3426, 3431, 3433-3434, 3436-3439, 3440-3446 and 3448.

 

Organizations

Records 264-265, 267, 293-294, 295, 298-299, 305-308, 309, 312, 323-324, 332-333, 338, 354, 355, 372-373, 419-421, 425-426, 430, 440, 442, 475-480, 481-482, 483, 485-489, 490-495, 496-504, 507-508, 509-510, 512, 523-524, 528, 542, 578-579, 581, 585-588, 596-598, 599-601, 618-619, 621-628, 630-635, 638, 639-644, 645-654, 655-664, 667-669, 673-682, 683, 684, 685, 688-689, 696-698, 699-701, 702-708, 709-710, 716, 717-721, 723-724, 725-728, 730-732, 733, 737-740, 741-745, 746-749, 750-751, 766-768, 777-779, 781-782, 784, 785-791, 792-794, 799-800, 801-804, 805-808, 817-819, 825-829, 830-831, 852-860, 864, 867-869, 870-872, 873-885, 886-897, 1216-1218, 1220-1228, 1229-1231, 1233-1237, 1238-1240, 1242-1246, 1247-1249, 1251-1255, 1256-1260, 1263-1264, 1284-1285, 1286-1287, 1311, 1406-1410, 1411-1413, 1415-1418, 1422-1423, 1449, 1454-1455, 1456-1458, 1463, 1464-1465, 1466-1467, 1469-1477, 1490-1491, 1510, 1525, 1526-1532, 1533-1535, 1536-1538, 1539-1540, 1541-1542, 1543-1564, 1565-1569, 1570-1574, 1580-1581, 1582, 1585, 1586-1588, 1590, 1596-1598, 1599-1601, 1602-1607, 1608-1614, 1615-1616, 1617-1626, 1627, 1628, 1629-1630, 1631-1632, 1647, 1659-1661, 1931, 2393-2395, 2396-2398, 2422-2423, 2434-2438, 2964-3004, 3009-3016, 3031-3034, 3051-3055, 3056-3063, 3216-3221 and 3225-3237.

 

6.         I remain seized of this matter.

 

 

 

 

 

 

 

 

 

Original signed by:                                                                          September 19, 2000                   

Tom Mitchinson

Assistant Commissioner

                                                                                                                        

Appendix A to Interim Order MO-1337-I