In his representations, the appellant addresses each record individually and focuses on the litigation privilege component of solicitor-client privilege:

The City claims an exemption for litigation privilege.  Once again, the City has not established that these documents were prepared for the dominant purpose of giving or receiving legal advice in reasonably anticipated litigation.  These records must be produced.

Analysis and findings – solicitor-client communication privilege

As record 9(m), 9(o) do not qualify for solicitor-client communication privilege, I will go on to determine whether those records qualify for exemption under common law litigation privilege.

Litigation privilege

General principles

Litigation privilege protects records created for the dominant purpose of existing or reasonably contemplated litigation [Order MO-1337-I; General Accident Assurance Co.].

The purpose of this privilege is to protect the adversarial process by ensuring that counsel for a party has a “zone of privacy” in which to investigate and prepare a case for trial.  The privilege prevents such counsel from being compelled to prematurely produce documents to an opposing party or its counsel [General Accident Assurance Co.].

Courts have described the “dominant purpose” test 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 [Waugh v. British Railways Board, [1979] 2 All E.R. 1169 (H.L.), cited with approval in General Accident Assurance Co.; see also Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.)].

To meet the “dominant purpose” test, there must be more than a vague or general apprehension of litigation [Order MO-1337-I].

Where records were not created for the dominant purpose of litigation, copies of those records may become privileged if, through research or the exercise of skill and knowledge, counsel has selected them for inclusion in the lawyer’s brief [Order MO-1337-I; General Accident Assurance Co.; Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. (1985), 3 N.S.W.L.R. 44 (S.C.)].

Representations

The City submits generally:

…that every one of the dispute documents was created by or for a solicitor engaged in preparing his or her clients position for presentation in an adversarial forum…It is the City’s position that litigation has been contemplated in this matter since July 15, 1980. 

…

The Statement of Claim was issued December 18, 2003.  There can be no question that the documents produced by the City’s advocate after that date are protected by the litigation privilege.  Each of these documents was prepared for the purpose of preparing the City’s case for presentation to the Court.  The documents in this category are: Documents 9(i), 9(m), 9(o), 9(p), 9(q), 9(r), 9(t). [Emphasis added]

The appellant’s submissions on how litigation privilege applies to Records 9(m) and 9(o) are included in the portions of his representations reproduced above under solicitor-client communication privilege.

Loss of privilege through waiver

General Principles

The actions by or on behalf of a party may constitute waiver of privilege under either branch [Order PO-1342].  Waiver of privilege is ordinarily established where it is shown that the holder of the privilege:

•         knows of the existence of the privilege, and

•         voluntarily evinces an intention to waive the privilege

[S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.)].

Generally, disclosure to outsiders of privileged information constitutes waiver of privilege [J. Sopinka et al., The Law of Evidence in Canada at p. 669; see also Wellman v. General Crane Industries Ltd. (1986), 20 O.A.C. 384 (C.A.); R. v. Kotapski (1981), 66 C.C.C. (2d) 78 (Que. S. C.)].

The courts have held that where there is voluntary waiver of part of a record, waiver of the rest of the record may be implied where fairness requires this.  Adjudicator Anita Fineberg discussed this in Order M-260:

Only the client may waive the solicitor-client privilege. Waiver of the solicitor-client privilege may be express or implied.

In the recent text Solicitor-Client Privilege in Canadian Law, R.D. Manes and M.P. Silver, (Butterworth's, 1993) at pp. 189 and 191, the authors distinguish between the two types of waiver:

Express waiver occurs where the client voluntarily discloses confidential communications with his or her solicitor.

Generally waiver can be implied where the court finds that an objective consideration of the client's conduct demonstrates an intention to waive privilege. Fairness is the touchstone of such an inquiry.

In S & K Processors (1983), 35 C.P.C. 146 (B.C.S.C.) McLachlin J. noted:

However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require...

In the cases where fairness has been held to require implied waiver, there is always some manifestation of a voluntary intention to waive privilege at least to a limited extent.  The law then says that in fairness and consistency it must be entirely waived. (pp. 148-149)

Representations

The appellant maintains that any claim that the City may have had for solicitor-client privilege has been waived.  He submits:

Partial disclosure by the City is misleading, and in the interests of consistency and fairness, the City must be considered to have waived all solicitor-client and litigation privilege.

Analysis and findings with respect to loss of privilege through waiver

In Order MO-1172 Adjudicator Laurel Cropley stated:

In my view, it is often necessary or desirable for a public body to refer to the crux of the advice its solicitors provide to it in order to carry out its mandate and responsibilities.  In many cases, the public body will intend to retain the privilege, while at the same time provide a minimal degree of public disclosure to ensure the proper discharge of its functions.  In the usual case, this should not of itself constitute express waiver of the privilege attaching to the underlying solicitor-client communications. (Order P-1559).

This issue was recently addressed by the Federal Court of Appeal in Stevens v. Canada (Prime Minister) (1998), 161 D.L.R. 94^th) 85 at pp. 108-109.  In this case, pursuant to an access request under the federal Access to Information Act , a federal institution provided partial access to legal accounts severing out the narrative portion of the accounts while providing access to the dollar amount of the accounts.  In dealing with the issue of waiver in the freedom of information context, Linden, J.A. stated on behalf of the Court:

In Lowry v. Can. Mountain Holidays Ltd. [(1984, 59 B.C.L.R. 137 (S.C.), at p. 143] Finch J. emphasized that all the circumstances must be taken into consideration and that the conduct of the party and the presence of an intent to mislead the court or another litigant are of primary importance.

            …

I would add, with respect to the release of portions of the records, that, in light of these reasons, the Government has released more information than was legally necessary.  The itemized disbursements and general statements of account detailing the amount of time spent by Commission counsel and the amounts charged for that time are all privileged.  But it is the government qua client which enjoys the privilege; the Government may choose to waive it, if it wishes, it may refuse to do so.  By disclosing portions of the accounts the Government was merely exercising its discretion in that regard.  As I mentioned earlier, a government body may have more reason to waive its privilege than private parties, for it may wish to follow a policy of transparency with respect to its activity.  This is highly commendable; but the adoption of such a policy or such a decision in no way detracts from the protection afforded by the privilege to all clients. [Emphasis added]

Although the matter in Stevens arose in the context of disclosure under the federal Act, in my view, the Court’s rationale may be similarly applied to the disclosure, generally, made by government institutions of information in their custody or control.  This is not to say that an institution can never be found to have waived solicitor-client privilege by partial disclosure of a privileged document.  Rather determining this issue, a decision-maker must be cognizant of the environment in which institutions operate and their responsibilities with respect to the public interest, which may include maintaining a “policy of transparency” regarding information which is used in the decision-making process.

I do not accept the appellant’s position that the City’s release of some documents to which solicitor-client and litigation privilege might apply amounts to a waiver of the privilege entirely and mandates the release of all documents for which the privilege is maintained.  As in Order P-1559, referred to in Order MO-1172 above, in my view, this is a case where the public body intends to retain the privilege, while at the same time provide a minimum degree of public disclosure to ensure the proper discharge of its function. 

As discussed by Adjudicator Fineburg in Order M-260, privilege belongs to the client and the client alone. Only the client may waive the solicitor-client privilege.  This is not a circumstance where the City has waived or attempted to waive its privilege with respect to portions of a record while claiming privilege for other portions of the same record or where waiver of all of the information in the solicitor’s file can be implied.  In the circumstances of this appeal, the City has deliberately waived its privilege in some records by disclosing them, while retaining privilege with respect to others which contain more detailed information respecting the City’s legal position.  Fairness and consistency do not require the implication of waiver to all of its records in this circumstance.  In my view, the City should not be penalized through the application of waiver to all the records in this case as a result of their laudable attempt to provide at least a minimum level of disclosure and transparency.

In summary, I find that the undisclosed portions of Record 9(a), portions of Record 9(f), the first page of Record 9(aa), as well as records 9(b), 9(c), 9(e), 9(l), 9(p), 9(q), 9(r), 9(t), 9(v), 9(w), 9(x), and 9(cc) in their entirety, fall within the scope of the solicitor-client privilege component of Branch 1 of section 12.  I also find that the fact that the City disclosed some records which might have been withheld subject to solicitor-client privilege, but not others, does not negate the application of the section 12 exemption claim.

As I have found that Record 9(f) is exempt from disclosure under the section 12, it is not necessary for me to determine whether section 7(1) applies to that record.

ORDER:

1.                  I order the City to disclose to the appellant Appendix A and Appendix C of Record 9(f), pages 2 and 3 of Record 9(aa), and records 9(m) and 9(o) in their entirety by June 20, 2005.

2.                  I uphold the City’s decision to deny access to the remaining records at issue in this appeal.

3.                  In order to verify compliance with Provision 1 of this order, I reserve the right to require the City to provide me with a copy of the records that are disclosed to the appellant pursuant to Provision 1.

Original signed by:                                                                        May 20, 2005                  

Brian Beamish