ORDER PO-3982

Appeal PA16-100

Ministry of Finance

August 16, 2019

Summary: The Ministry of Finance (the ministry or MOF) received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to information that the Deposit Insurance Corporation of Ontario (DICO) shared with an MOF observer at a DICO Board meeting, consisting of a legal opinion from a lawyer to the Chair of the Board of DICO, as well as a summary of the legal opinion. Both DICO and the ministry claimed that the record was excluded from the Act  by operation of section 65(6)  (employment or labour relations), or alternatively, qualified for exemption under section 19 (solicitor-client privilege). In this order, the adjudicator finds that the section 65(6)3 exclusion does not apply but that the common interest exception to the waiver of privilege applies to the information at issue. Accordingly, solicitor-client privilege was not waived when the record was provided by DICO to the MOF observer and the adjudicator upholds the decision of the ministry not to disclose to the appellant the information remaining at issue.

Statutes Considered: Freedom of Information and Protection of Privacy Act , RSO 1990, c F.31, sections 1 , 2(1)  (definition of “personal information”), 19, 24, 49(a) and 65(6)3; Broader Public Sector Executive Compensation Act, 2014 , SO 2014, c 13, Sch 1 ; Credit Unions and Caisses Populaires Act , 1994, S.O. 1994, c 11 , former sections 252(1), 260(1), 260(2), now repealed.

Orders Considered: Orders MO-1678, MO-3253-I, PO-3154, PO-3167 and PO-3730.

Cases Considered: Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, 2004 SCC 31; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (Ont. C.A.); Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy

Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507; Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2003] O.J. No. 4123; 178 O.A.C. 171; 126 A.C.W.S. (3d) 185 (C.A.); Detlor v. Brantford (City), 2013 ONCA 560; Ontario (Correctional Services) v. Goodis, (2008), 89 O.R. (3d) 457, [2008] O.J. No. 289; 2008 CanLII 2603 (Ont. Div. Ct.); Philip Services Corp. (Receiver of) v. Ontario Securities Commission (2005), 77 O.R. (3d) 209 (Ont. Div. Ct); R v. Serfaty, 2004 Canlii 9060, [2004] O.J. No. 1962, [2005] O.T.C. 401 (Ont. Sup. Crt.); Stevens v. Canada (Prime Minister), 1997 Canlii 4805 (FC) (aff’d 1998 Canlii 9075 (FCA); S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.); Pitney Bowes of Canada Ltd. v. Canada, 2003 FCT 214 (T.D.); Maximum Ventures Inc. v. De Graf, 2007 BCCA 510.

OVERVIEW:

[1]  The Ministry of Finance (the ministry or MOF) received a request under the Freedom of Information and Protection of Privacy Act (the Act or FIPPA) for access to the following information pertaining to the Deposit Insurance Corporation of Ontario (DICO):

The DICO board and Human Resources committee meeting materials provided to the MOF Observer from January 1, 2010 through June 30, 2015 relating to the topic of Executive Compensation including a Variable Pay Plan and Bill 8 which subsequently became the Broader Public Sector Executive Compensation Act and any notes taken by the MOF Observer at these meetings.

For greater certainty, these records include: the Agenda for the relative committee or board meeting, submissions by DICO management including any third party enclosures or attachments relating to the requested subject matters and the subsequently approved Minutes of the relative meetings.

[2]  After DICO was notified about the request and provided its position on disclosure, the ministry issued its access decision, accompanied by an Index of Records. The ministry granted partial access to the responsive records relying on section 19 (solicitor-client privilege) of the Act  to deny access to the portion it withheld. The ministry also withheld some information because it was of the view that the information was not responsive to the request.

[3]  The requester, now the appellant, appealed the ministry’s access decision.

[4]  Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeals process where an adjudicator conducts an inquiry under the Act .

[5]  I commenced my inquiry by seeking representations from the ministry and DICO on the facts and issues set out in a Notice of Inquiry. The ministry provided representations and advised that they could be shared in full with the appellant. DICO provided confidential and non-confidential versions of its representations, requesting that only the non-confidential version be shared with the appellant. The confidential version of the representations was not shared in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7. Both DICO and the ministry consented to the disclosure of page 29 of record 11. Accordingly, I will order the disclosure of that page.

[6]  In its representations, DICO raised for the first time the possible application of the exclusion at section 65(6)3 (employment and labour relations) to withhold portions of the records. As section 65(6)3 goes to the jurisdiction of the IPC, I added the possible application of the exclusion as an issue in the appeal.

[7]  I then sent a Notice of Inquiry to the appellant along with a copy of the ministry’s representations (which also adopted DICO’s representations) as well as DICO’s non-confidential representations. The appellant provided responding representations which were shared with the ministry and DICO for reply. DICO provided reply representations which the ministry adopted. These were then shared with the appellant who provided sur-reply representations.

[8]  In this order, I find that the section 65(6)3 exclusion does not apply and the record is subject to the Act  but that the common interest exception to the waiver of privilege applies to the information at issue. Accordingly, solicitor-client privilege was not waived when the record was provided by DICO to the MOF observer and, except with respect to page 29 of record 11, which both the ministry and DICO consented to disclose to the appellant, I otherwise uphold the decision of the ministry to withhold the information at issue pursuant to section 19 of the Act .

RECORDS:

[9]  Remaining at issue in this appeal is information contained in Record 11, which consists of a letter from a lawyer from a law firm that was providing a legal opinion to the Chair of the Board of DICO as well as a summary of the legal opinion that was provided to the Board.

ISSUES:

1. What is the scope of the request? Is information on pages 27 and 28 of Record 11 responsive to the request?
2. Does section 65(6)3 exclude pages 11 and 14 to 28 of Record 11 from the Act ?
3. Do pages 11 and 14 to 28 of Record 11 contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
4. Does the exemption at section 19, or section 49(a) in conjunction with section 19, apply to pages 11 and 14 to 28 of Record 11?
5. Did the ministry exercise its discretion under section 19, or section 49(a), in conjunction with section 19, as the case may be? If so, should this office uphold the exercise of discretion?

DISCUSSION:

Issue A: What is the scope of the request? Is information on pages 27 and 28 of Record 11 responsive to the request?

[10]  The ministry withheld pages 27 and 28 of the record at issue on the basis that they are not responsive to the request. The appellant disagrees with this assessment.

[11]  Section 24 of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1) A person seeking access to a record shall,

(a) make a request in writing to the institution that the person believes has custody or control of the record, and specify that the request is being made under this Act ;

(b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

. . .

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[12]  Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. [1]

[13]  To be considered responsive to the request, records must “reasonably relate” to the request. [2]

The ministry’s representations

[14]  The ministry submits that pages 27 and 28 of record 11 contain information of a general nature about topics that are outside the scope of the request because they are not responsive to the topic of executive compensation or the Broader Public Sector Executive Compensation Act ,  2014  [3] (BPSECA ).

[15]  In the alternative, the ministry submits that if a determination is made that the information is responsive, then it qualifies for exemption under section 19 of the Act :

… because it forms part of the legal advice that was sent from the solicitor to the solicitor’s client. These pages were an attachment to the legal advice that was given. …

The appellant’s representations

[16]  The appellant submits that because the information on pages 27 and 28 of Record 11 forms part of and was attached to the legal opinion, and because the ministry made a claim in the alternative that if it is responsive it is subject to section 19, this means that it is indeed responsive to the request.

Analysis and finding

[17]  I have reviewed the contents of pages 27 and 28 in their unsevered form. As they appear to be an attachment to the legal opinion that the ministry identified as responsive to the request, and taking a liberal interpretation of the appellant’s request, I find that pages 27 and 28 “reasonably relate” to it. Accordingly, these pages fall within the scope of the request and the analysis that follows will apply to them.

Issue B: Does section 65(6)3 exclude pages 11 and 14 to 28 of Record 11 from the Act?

[18]  Section 65(6) states, in part:

Subject to subsection (7), this Act  does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.

3. Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest.

[19]  If section 65(6) applies to the records, and none of the exceptions found in section 65(7) applies, the records are excluded from the scope of the Act .

[20]  For the collection, preparation, maintenance or use of a record to be “in relation to” the subjects mentioned in paragraph 1, 2 or 3 of this section, it must be reasonable to conclude that there is “some connection” between them. [4]

[21]  The term “labour relations” refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to analogous relationships. The meaning of “labour relations” is not restricted to employer-employee relationships. [5]

[22]  The term “employment of a person” refers to the relationship between an employer and an employee. The term “employment-related matters” refers to human resources or staff relations issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship. [6]

[23]  If section 65(6) applied at the time the record was collected, prepared, maintained or used, it does not cease to apply at a later date. [7]

[24]  Section 65(6) may apply where the institution that received the request is not the same institution that originally “collected, prepared, maintained or used” the records, even where the original institution is an institution under the Municipal Freedom of Information and Protection of Privacy Act. [8]

[25]  The type of records excluded from the Act  by section 65(6) are documents related to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue. Employment- related matters are separate and distinct from matters related to employees’ actions. [9]

Section 65(6)3: matters in which the institution has an interest

Introduction

[26]  For section 65(6)3 to apply, the institution must establish that:

1. the records were collected, prepared, maintained or used by an institution or on its behalf;
2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and
3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.

[27]  The phrase “in which the institution has an interest” means more than a “mere curiosity or concern”, and refers to matters involving the institution’s own workforce. [10]

[28]  The records collected, prepared, maintained or used by the institution are excluded only if [the] meetings, consultations, discussions or communications are about labour relations or “employment-related” matters in which the institution has an interest. Employment-related matters are separate and distinct from matters related to employees’ actions. [11]

Section 65(7): exceptions to section 65(6)

[29]  If the records fall within any of the exceptions in section 65(7), the Act  applies to them. Section 65(7) states:

This Act  applies to the following records:

1. An agreement between an institution and a trade union.

2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.

3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.

4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.

DICO’s representations

[30]  DICO submits that the “institution” for the purposes of the section 65(6) analysis is the ministry but that DICO’s consultations and communications regarding the compensation of its executives are “employment-related matters” in which the ministry had a direct interest. DICO also submits that the disclosure of its confidential employment-related information would be harmful to DICO’s relationship with its employees.

[31]  DICO references a Memorandum of Understanding (MOU) governing its relation with the ministry and submits:

… In addition, the [ministry] “has an interest” in the record by virtue of the presence of the [ministry] observer at the board meetings, the reporting relationship of DICO to the Minister that is detailed in the MOU between the Minister and DICO and the monitoring role that [the ministry] has, as detailed in the MOU.

[32]  In support of its position, DICO provided an affidavit of its Vice-President, Corporate Affairs and Chief Risk Officer who explains that:

DICO is an Ontario provincial agency established under the Credit Unions and Caisses Populaires Act, 1994  [12] (“CUCPA ”). DICO is responsible for administering and ensuring compliance with the rules set by the Ontario government relating to the solvency of credit unions and caisses popularies […], promoting standards of sound business and financial practices, providing insurance against loss of deposits, and promoting and contributing to the stability of the Ontario credit union sector with due regard to its need to compete.

DICO is a “Board-Governed” agency of the Province of Ontario established in 1977 and operates under the CUCPA . The CUCPA  sets out DICO’s objects, powers and duties, as well as general terms for deposit insurance and other governing parameters. DICO functions within the legal framework established by the CUCPA , the Agency and Appointments Directive […], issued by Management Board of Cabinet, the Memorandum of Understanding between the Ministry and DICO […] and other applicable directives and laws. DICO is accountable to the Minister of Finance for the conduct of its affairs.

…

Provincial agencies act as a part of government but are not organizationally part of a ministry. They are led by government appointees and are expected to provide a high level of service to the public. Provincial agencies are accountable to the government through the responsible minister. The Agencies and Appointments Directive (February 2015) (the Directive), issued under the Management Board of Cabinet Act  [13] , sets out the rules for all provincial agencies, including DICO. The Directive provides an accountability framework for provincial agencies and includes a requirement for a Memorandum of Understanding between each provincial agency and the ministry that oversees them. [14] …

…

As part of the accountability framework under the CUCPA , the Directive, the MOU and related directives and guidance, the MOF regularly sends an “observer” (the “MOF Observer”) to attend meetings of the DICO Board of Directors and its committees. Paragraph 8.4(o) of the MOU states that the Deputy Minister is responsible for “[a]ssigning a Ministry of Finance staff person to sit on the Board as an observer”. The Deputy Minister is responsible for assigning an MOF Observer to attend meetings of the DICO Board and its committees. The MOF Observer keeps the MOF informed of issues or events that may concern the MOF. The MOF Observer is invited to attend all DICO meetings and is usually present at the meetings.

When the MOF Observer is attending a meeting of the DICO Board of Directors, the MOF Observer is provided with copies of all the materials circulated at the meeting, including materials or documents containing confidential and/or privileged information. The MOF Observer is present even during “in camera” sessions of the DICO Board of Directors when highly confidential matters are being discussed. During “in camera” sessions, the materials related to the items discussed are considered highly confidential and distribution is limited only to the Board members and the MOF Observer. All documents, materials and information provided to the MOF Observer are provided pursuant to DICO’s legal obligation under CUCPA , the Directive and the MOU for the purposes of complying with the MOF’s oversight role. DICO expects that the MOF will treat as confidential any documents, materials and information provided to the MOF Observer during the DICO Board of Director’s meetings, regardless of whether they are provided during regular Board meetings or “in camera” Board meetings.

[33]  As explained above, section 8.4 of the MOU sets out the responsibilities of the Deputy Minister of Finance and section 8.4(o) provides that one of the Deputy Minister’s responsibilities is assigning a ministry staff person to sit on the Board as an observer.

[34]  Section 9 sets out DICO’s reporting requirements within the framework of the MOU. This includes providing the ministry with a Business Plan (including a system of performance measures and reporting on the achievement of the objectives set out in the Business Plan), providing Annual Reports and Other Reports. In addition to the reports set out in appendix 1 of the MOU, section 9.3(b) provides that “[a]t the request of the Minister or Deputy Minister, supplying specific data and other information that may be required from time-to-time for the purpose of ministry administration”.

The appellant’s representations

[35]  The appellant submits that section 65(6) does not apply to the record at issue because the words “in which the institution has an interest” mean an institution’s own workforce [15] . The appellant adds that because the records were created either before or concurrently with the coming into force of the BPSECA , the ministry would have no legal interest in this information [16] . The appellant submits that at the time the records were created the only other employment related information DICO was required to provide to the province of Ontario was salary information for those earning over $100,000 annually.

[36]  The appellant submits that:

None of the information subject to this appeal was collected, prepared, maintained or used by or on behalf of an institution. DICO is not an institution under the Act . These records were prepared by DICO staff for the information of DICO’s board which has the legal duty and authority to supervise or manage DICO. [17] The only “institution” involved with this FIPPA request is the MOF. These records were only copied to the MOF’s observer by DICO as a courtesy.

[37]  The appellant submits that the MOU does not address Board materials, and that contrary to the positions taken by the ministry and DICO, neither the Minister, the MOU or any government directive give the ministry any right to, or interest in, any of these records. He submits that there is no legal authority that authorizes the ministry to conduct the level of oversight alleged.

[38]  In that regard, the appellant takes the position that former section 260  of the CUCPA  sets out the type of information DICO was legally required and authorized to provide to the Minister of Finance. Sections 260(1) and (2) read as follows at the time of the request:

1. The Corporation [DICO] shall provide the Minister with such information relating to its activities, operations and financial affairs as the Minister may request.
2. At least once each year, the Corporation shall advise the Minister about the credit union sector and the adequacy of the Deposit Insurance Reserve Fund and about any matters that concern or can reasonably be expected to concern the Minister in the exercise of his or her responsibilities.

[39]  The appellant submits that:

Neither [the ministry] nor DICO have provided any evidence of the Minister having “requested” this level of operational information from DICO. At best, the MOU evidences the Minister’s request for information about the effectiveness of DICO’s board in performing its responsibilities set out in the MOU and Agencies & Appointments Directive through the appointment of a board observer [18] . If the Minister wanted operational information about DICO, he could have appointed a ministry official, such as a deputy minister, to sit as an ex-officio director on DICO’s board. This is the practice of the federal government in dealing with the Canada Deposit Insurance Corporation, DICO’s federal equivalent.

… DICO’s records, which are the subject of this FIPPA request, are not addressed in the Agencies and Appointment Directive or the Reporting Requirements of paragraph 9 of the MOU.

[40]  The appellant asserts that the only reference to a ministry observer is found in paragraph 8.4.o of the MOU which states that the duties of the Deputy Minister include assigning an MOF staff person to sit on DICO’s board as an observer. The appellant adds:

It should also be noted that paragraph 1b. of the MOU states that “This MOU does not affect, modify or limit the powers of the corporation as set out in the act or interfere with any of the responsibilities of any of its parties as established by law.” …

[41]  The appellant also alleges that the MOU is not even binding on DICO as it was signed by an individual as DICO’s chair, “rather than being signed by DICO, per [the individual], then Chair of the Board”. The appellant submits that:

This mode of execution is both appropriate and intended given that the MOU is between the Minister of Finance and the Chair of DICO rather than the Minister of Finance and DICO.

The reply representations

[42]  DICO provided reply representations which were adopted and relied upon by the ministry.

[43]  Also relying on Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) [19] , DICO takes the position that the phrase “in which the institution has an interest” actually does not refer exclusively to an institution’s own workforce. DICO submits that in that case the Court of Appeal upheld the decision of the Ministry of the Solicitor General and Correctional Services to apply section 65(6)3 to records involving the workforce of the Ontario Provincial Police and did not adopt an interpretation that would have restricted the application of section 65(6)3 to the Ministry of the Solicitor General and Correctional Services’ own workforce. DICO submits that in doing so, the Court of Appeal did not intend to restrict the application of section 65(6)3 to the institution’s own workforce. DICO submits that if it had, the result would have been different.

[44]  DICO submits that there is no basis for the appellant’s assertion that only the legislation he cited could constitute a requirement for DICO to produce employment- related information to the ministry.

[45]  DICO submits that:

… While an institution’s “interest” in a record can be demonstrated in particular cases by reference to a requirement to report or provide information to the institution, as here, section 65(6) simply does not require a formal order or directive to establish that the institution has a valid interest in a record. Having said that, the ministry’s “interest” in the records in this case is supported by the legal framework that has been established to facilitate meaningful reporting by and oversight of DICO.

As explained in DICO’s Original Representations and the [Affidavit provided] DICO is required under the Memorandum of Understanding with the Ministry to allow an MOF Observer to sit in on meetings of the DICO Board and its committees. As part of this role, the MOF Observer is entitled to all materials distributed at the meeting of the DICO Board and its committees. In addition, as explained in detail [in the Affidavit provided], the ministry had a particular interest in the records, as they related to the ability of DICO to fulfil a request by the Minister. Both the ministry and DICO had an interest in complying with the Minister’s request, and DICO sought the legal opinion in order to assess the feasibility of implementing the Minister’s request.

[46]  DICO adds that the records were not produced by DICO to the ministry “as a courtesy” and that under former section 260(1)  of the CUCPA , DICO must provide the Minister with “such information relating to its activities, operations and financial affairs as the Minister may request.” DICO submits that the MOU sets out the terms and conditions by which the Minister “requests” information from DICO as part of its oversight role and adds that the MOU does not affect, modify or limit the powers of DICO, but it is a method by which the ministry requests the information to which it is entitled under the CUCPA . DICO submits that it has a legal obligation to abide by former section 260(1) of the CUCPA and the terms of the MOU.

[47]  DICO further submits that:

… although the specific documents contained in the Records are not directly referenced in the Agencies & Appointments Directive or the Reporting Requirements of Paragraph 9 of the MOU, the Directive and the MOU provide the overall framework for the ministry’s oversight of DICO and DICO’s reporting to the ministry. DICO disputes the appellant’s suggestion that there must be an explicit requirement in the MOU or the Directive in order to require DICO to provide documents to the ministry. As explained in the [Affidavit provided], DICO provides all copies of all materials circulated at meetings of the DICO Board of Directors and its committees to the MOF Observer pursuant to section 8.4(o) of the MOU.

[48]  Finally, DICO asserts that the appellant’s suggestion that the MOU is not binding on DICO because it was signed by [a named individual] as DICO’s chair rather than signed by DICO per [the named individual], or that the MOU is no longer in effect due to the passage of time, is “absurd and unreasonable”. DICO submits that the MOU is binding on both the ministry and DICO and has been and is consistently treated by both parties as binding.

The appellant’s sur-reply representations

[49]  In sur-reply, the appellant makes further technical arguments on why, in his view, the MOU is not binding, and submits that both the court and this office have found that the information must be about the institution’s own workforce for section 65(6) to apply. He submits that:

In their reply representations, DICO incorrectly attempts to broaden the court’s application of the “institution’s own workplace” restriction based on an incorrect interpretation of the [Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner)] case.

[50]  He submits that because DICO is a separate legal entity its employees are not part of the workforce of the government of Ontario or the ministry and that as result, section 65(6)3 does not apply.

Analysis and finding

[51]  I begin my analysis by noting that previous decisions issued by this office have held that section 65(6) requires a record-specific and fact-specific analysis. [20]

[52]  In Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) [21] , the Ontario Court of Appeal stated at paragraph 35 of the decision that section 65(6)3:

. . . deals with records relating to a miscellaneous category of events “about labour relations or employment-related matters in which the institution has an interest”. Having regard to the purpose for which the section was enacted [footnote omitted], and the wording of the subsection as a whole, the words, “in which the institution has an interest” in subclause 3 operate simply to restrict the categories of excluded records to those relating to the institution’s own workforce where the focus has shifted from “employment of a person” to “employment-related matters”. . . . [Emphasis added.]

[53]  In a subsequent decision in Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner) [22] (“Minister of Health”), the Court of Appeal considered whether the work of the Physician Services Committee, in the context of its role in negotiating the remuneration of physicians by the Ontario government, would fall within the meaning of the term, “labour relations.” In concluding that it did, the Court discussed the meaning of the phrase, “labour relations,” stating at paragraph 1 of the decision that:

. . . its ordinary meaning can extend to relations and conditions of work beyond those relating to collective bargaining. Nor is there any reason to restrict the meaning of “labour relations” to employer/employee relationships; to do so would render the phrase “employment-related matters” redundant.

The relationship between the government and physicians, and the work of the Physician Services Committee in discharging its mandate on their behalf, including provisions for the remuneration of physicians, fall within the phrase, “labour relations”, and the meetings, consultations and communications that take place in the discharge of that mandate fell within that phrase as it appears in s. 65(6)3. …

[54]  In a later decision, Ontario (Correctional Services) v. Goodis [23] , Swinton J., on behalf of the Divisional Court, canvassed the state of the law as it existed at that time. she wrote:

[24] The scope of s. 65(6) is made clearer when one looks at the relationship between it and s. 65(7), as well as the legislative history of the provision. Subsection 65(6) is subject to s. 65(7), which states:

65(7) This Act  applies to the following records:

1. An agreement between an institution and a trade union.

2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.

3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.

4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.

The fact that the Act  applies to the documents in subclauses 1 through 3 of s. 65(7) suggests that the type of records excluded from the Act  by s. 65(6) are documents related to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue.

[25] This conclusion is reinforced by the legislative history of these provisions. Subsection 65(6) was added to the Act  by the Labour Relations and Employment Statute Law Amendment Act, S.O. 1995, c. 1, s. 82 . In introducing the bill, the Hon. Elizabeth Witmer, then Minister of Labour, described it as a “package of labour law reforms designed to revitalize Ontario's economy, to create jobs and to restore a much-needed balance to labour-management relations” (Ontario, Legislative Assembly, Official Report of Debates (Hansard) (4 October 1995)). The Hon. David Johnson, Chair of the Management Board of Cabinet, stated that the amendments to provincial and municipal freedom of information legislation were “to ensure the confidentiality of labour relations information” (ibid.).

[26] Moreover, s. 65(6) should be interpreted in light of the purpose of the Act , which is found in s. 1. It states:

1. The purposes of this Act  are:

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and [page466]

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

The interpretation suggested by the Ministry in this case would seriously curtail access to government records and thus undermine the public's right to information about government. If the interpretation were accepted, it would potentially apply whenever the government is alleged to be vicariously liable because of the actions of its employees. Since government institutions necessarily act through their employees, this would potentially exclude a large number of records and undermine the public accountability purpose of the Act  (Ontario (Ministry of Transportation) v. Ontario (Information and Privacy Commissioner), 2005 CanLII 34228 (ON CA), [2005] O.J. No. 4047, 202 O.A.C. 379 (C.A.), at para. 28).

[27] Two decisions of the Court of Appeal dealing with the interpretation of s. 65(6) reinforce the conclusion that the provision protects the confidentiality of records pertaining to terms of employment or conditions of work in an employer-employee or collective bargaining relationship or a quasi-collective bargaining relationship. In Ontario (Solicitor General), supra, the court stated (at para. 35):

Examined in the general context of subsection 6, the words “in which the institution has an interest” appear on their face to relate simply to matters involving the institution's own workforce. Subclause 1 deals with records relating to “proceedings or anticipated proceedings . . . relating to labour relations or to the employment of a person by the institution” (emphasis added). Subclause 2 deals with records relating to “negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution . . ." (emphasis added). Subclause 3 deals with records relating to a miscellaneous category of events “about labour relations or employment-related matters in which the institution has an interest”. Having regard to the purpose for which the section was enacted, [footnote omitted] and the wording of the subsection as a whole, the words “in which the institution has an interest” in subclause 3 operate simply to restrict the categories of excluded records to those records relating to the institutions’ own workforce where the focus has shifted from “employment of a person” to “employment-related matters”. To import the word “legal” into the subclause when it does not appear, introduces a concept there is no indication the legislature intended. The endnote reference in that passage is to the bill which introduced s. 65(6) and includes the quotation from the Hon. David Johnson found at para. 25 of these reasons.

[28] The Ministry submitted that the Court of Appeal approved a broad interpretation of the exclusion, as it quashed [page 467] the decisions of the IPC and restored the decisions of the heads of the respective Ministries involved in the case (at para. 42). One of the records at issue in the case was a copy of a public complaint file of the Police Complaints Commission. The Ministry of the Solicitor General and Correctional Services had taken the position that the file was excluded under s. 65(6). The IPC agreed that the investigation of a complaint of police misconduct was an employment-related matter. However, it had ordered the file disclosed because there were no existing or anticipated proceedings before a court, tribunal or other entity (Ministry of the Solicitor General and Correctional Services, Order PO-1618, at pp. 4 and 6).

[29] Thus, there was no dispute in that case that the file documenting the investigation of the complaint was employment - related -- not surprisingly because of the potential for disciplinary action against a police officer. However, the case does not stand for the proposition that all records pertaining to employee conduct are excluded from the Act , even if they are in files pertaining to civil litigation or complaints brought by a third party. Whether or not a particular record is “employment-related” will turn on an examination of the particular document.

[30] The Court of Appeal also dealt with s. 65(6) in Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), 2003 CanLII 16894 (ON CA), [2003] O.J. No. 4123, 178 O.A.C. 171 (C.A.), where it held that the provision excluded records pertaining to negotiations between the government and physicians concerning the remuneration of physicians. The court held that “labour relations” in s. 65(6)3 extended to relations and conditions of work beyond those arising in collective bargaining and employer-employee relationships. It held that the term “labour relations” included the relationship between the government and physicians and the work of the Physician Services Committee. In my view, this case further supports the interpretation that s. 65(6) excludes records related to collective bargaining, broadly interpreted, and employment-related matters.

[31] In Reynolds v. Ontario (Information and Privacy Commissioner), [2006] O.J. No. 4356, 217 O.A.C. 146 (C.A.), this court applied the equivalent to s. 65(6) found in municipal freedom of information legislation to documents compiled by the Honourable Coulter Osborne while inquiring into the conduct of the City of Toronto in selecting a proposal to develop Union Station. The records he compiled in interviewing Ms. Reynolds, a former employee, were excluded from the Act , as Mr. Osborne was carrying out a kind of performance review, which was [page 468] an employment-related exercise that led to her dismissal (at para. 66). At para. 60, Lane J. stated:

It seems probable that the intention of the amendment was to protect the interests of institutions by removing public rights of access to certain records relating to their relations with their own workforce.

[55]  It is trite to say that the ministry and DICO are separate entities. DICO itself states that as a Provincial agency it acts as a part of government but is not organizationally part of a ministry. Only the ministry is defined as an institution under the Act .

[56]  I have considered both the non-confidential and confidential submissions DICO filed (and adopted by the ministry) regarding whether there is an employment relationship that falls within the scope of section 65(6) between the ministry and DICO’s employees. There is not. The ministry does not bear the hallmarks of being an employer, or held itself out as being responsible for the terms and conditions of employment at DICO, in a manner that is sufficient to bring it within an equivalent relationship with respect to the record at issue. Furthermore, in my view, the Minister’s request (referred to in DICO’s confidential representations), as reflected in the record at issue, does not result in it being an employment related matter in which the ministry has an interest within the meaning of section 65(6)3. DICO had an interest in addressing the Minister’s request in the face of statutory amendments, because it wanted to comply with all directives and legislation that applied to it. I find that this did not thereby create an employment interest that falls within the scope of section 65(6)3.

[57]  Although not specifically raised by DICO or the ministry, in light of the broad wording of the Minister of Health decision, I have similarly considered whether there is a labour relations relationship between the ministry and DICO as reflected in the record at issue. I have not been advised that there is any collective bargaining relationship between the ministry and DICO or between the ministry and DICO’s employees. I am not satisfied that the Minister’s request elevated the relationship to that of a labour relations relationship. Accordingly, I find that there is no labour relations relationship that falls within the scope of section 65(6)3.

[58]  Finally, with respect to the submissions of the parties on the interpretation of the Ministry of the Solicitor General decision, as explained by the Divisional Court, there was no dispute in that case that the file documenting the investigation of the complaint was “employment-related” because of the potential for disciplinary action against a police officer. Further, because the Ontario Provincial Police is a division of the Ministry of the Solicitor General, there was a direct linkage between the institution and the file documenting the investigation of the complaint. The connection was not as remote as that suggested in DICO’s representations. Here DICO is not a division of the ministry.

[59]  In my view, and in keeping with the purpose of the Act  as set out in section 1, the interpretation suggested by the ministry in this case would seriously curtail access to government records and thus undermine the public’s right to information about government.

[60]  Accordingly, I find that the section 65(6)3 exclusion does not apply to the records at issue.

[61]  As the record is subject to the Act , I will now consider whether the record contains the appellant’s personal information and whether section 19 applies to it.

Issue C: Do pages 11 and 14 to 28 of Record 11 contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[62]  This issue arises only because the appellant submits that, based on his view of the subject matter of the record, it necessarily contains personal information relating to him.

[63]  The legislative scheme established by the Act  contains different procedures for processing requests for information, depending on whether the request is for an individual’s own personal information as defined in section 2(1) of the Act  (considering sections 2(2) and 2(3)), or for general records. In the former situation, requests would be processed under Part III of the Act. In the latter case, requests would be treated under Part II of the Act. [24]

[64]  Section 49(a) applies if a record contains the requester’s own information. If it does, the analysis is conducted under part III of the Act. If a record does not contain the requester’s own information the analysis is conducted under part II of the Act, and, in the circumstances of this appeal, only section 19 of the Act  is considered.

[65]  To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual. [25] Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual. [26] To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [27]

[66]  Because of the nature of the record at issue, and by virtue of my finding that it contains solicitor-client privileged information, and cannot be reasonably severed, and that the ministry properly exercised its discretion, it is not necessary for me to also make a definitive determination about whether it contains the appellant’s personal information. However, for the sake of completeness, without deciding whether the record contains the appellant’s personal information, I will also consider whether if it were to contain the personal information of the appellant, it qualifies for exemption under section 49(a) [28] in conjunction with section 19.

Issue D: Does the exemption at section 19, or section 49(a) in conjunction with section 19, apply to pages 11 and 14 to 28 of Record 11?

[67]  The ministry and DICO both submit that the record contains solicitor-client privileged information. The appellant takes the position that DICO waived any privilege when it provided the record to the MOF observer.

[68]  Section 19 of the Act  states as follows:

A head may refuse to disclose a record,

(a) that is subject to solicitor-client privilege;

(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation; or

(c) that was prepared by or for counsel employed or retained by an educational institution or a hospital for use in giving legal advice or in contemplation of or for use in litigation.

[69]  Section 19 contains two branches. Branch 1 (“subject to solicitor-client privilege”) is based on the common law. Branch 2 (prepared by or for Crown counsel or counsel employed or retained by an educational institution or hospital) is a statutory privilege. The institution must establish that one or the other (or both) branches apply.

Branch 1: common law privilege

[70]  At common law, solicitor-client privilege encompasses two types of privilege: (i) solicitor-client communication privilege; and (ii) litigation privilege. Here, the ministry and DICO rely on solicitor-client communication privilege.

Solicitor-client communication privilege

[71]  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 or giving professional legal advice. [29] The rationale for this privilege is to ensure that a client may freely confide in his or her lawyer on a legal matter. [30] The privilege covers not only the document containing the legal advice, or the request for advice, but information passed between the solicitor and client aimed at keeping both informed so that advice can be sought and given. [31]

[72]  Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication. [32] The privilege does not cover communications between a solicitor and a party on the other side of a transaction. [33]

Loss of privilege

[73]  Under the common law, solicitor-client privilege may be waived. An express waiver of privilege will occur where the holder of the privilege

• knows of the existence of the privilege, and
• voluntarily demonstrates an intention to waive the privilege. [34]

[74]  An implied waiver of solicitor-client privilege may also occur where fairness requires it and where some form of voluntary conduct by the privilege holder supports a finding of an implied or objective intention to waive it. [35]

[75]  Generally, disclosure to outsiders of privileged information constitutes waiver of privilege. [36] However, waiver may not apply where the record is disclosed to another party that has a common interest with the disclosing party. [37]

The ministry’s representations

[76]  The ministry submits that the information on page 11 refers to seeking legal advice and to solicitor-client information while the remaining pages at issue contain direct legal advice from a solicitor to their client and both are subject to section 19(a).

[77]  The ministry submits that privilege has not been waived, either on an express or implied basis, and that in any event, the ministry shares a common interest with DICO. The ministry submits:

The ministry has oversight over DICO, and as such regularly sends an observer to DICO Board of Directors meetings. The ministry has a Memorandum of Understanding in place with DICO allowing an observer to attend all DICO board and committee meetings. It is understood that all materials distributed at these meetings are provided to the ministry in confidence.

DICO’s representations

[78]  DICO submits that the legal opinion is legal advice from external legal counsel regarding a specified matter. DICO submits that the legal opinion was treated as highly confidential and was presented during an “in camera” session of the DICO Board. DICO adds that the legal opinion summary, as a summary of the key points of the legal opinion, is also subject to solicitor-client privilege because its disclosure would “compromise the privileged communications in the legal opinion”.

[79]  DICO submits that it has not waived privilege and that disclosure to the ministry observer was not a disclosure to a third party since the ministry observer is part of the government accountability structure of DICO. Relying on Stevens v. Canada (Prime Minister) [38] , DICO submits that Canadian Courts have held that privilege is not waived when information subject to privilege is shared between government institutions. It adds:

The Deputy Minister is responsible for assigning an MOF observer to attend meetings of the DICO board and its committees. The MOF observer keeps the MOF informed of issues or events that may concern the MOF, as required by the Credit Unions and Caisses Populaires Act, 1994  (CUCPA ), the Agencies and Appointments Directive (February 2015) (the “Directive”) and the Memorandum of Understanding between the ministry and DICO (the “MOU”). The MOF observer is authorized under the MOU to sit in on all meetings of the DICO board and its committees, even those where confidential and privileged information is discussed.

[80]  DICO submits that in addition, the ministry and DICO had a common interest in the legal opinion and in the confidential portion of its representations further explains why [39] . In the alternative, DICO submits:

… , if the IPC were to conclude that DICO waived privilege (which is vehemently denied), DICO submits that privilege was only waived for the limited purpose of complying with its legal obligations under CUCPA , the Directive and the MOU that require DICO to assist the ministry in carrying out its oversight and accountability functions […]. Ontario courts have upheld the doctrine of limited waiver in order to permit compliance with competing legal objectives while only minimally impairing solicitor-client privilege. [40] DICO is required to assist the ministry with its oversight of DICO and only discloses privileged communications to the ministry for that purpose.

[81]  DICO provided an affidavit of its Vice-President Corporate Affairs and Chief Risk officer in support of its solicitor-client privilege claim, portions of which could not be shared with the appellant because they satisfied this office’s confidentiality criteria for withholding them.

The appellant’s representations

[82]  The appellant takes the position that DICO “voluntarily and purposely” waived solicitor-client privilege with respect to these pages and that there is no common interest between the ministry and DICO as they allege.

[83]  The appellant provides what he believes is the basis for the circumstances leading up to DICO obtaining the legal opinion and submits that DICO’s chair is a practicing lawyer well aware of the issues relating to solicitor-client privilege. He submits that “there was nothing to stop him from withholding the legal opinion from the MOF or its observer if he wished”. He adds:

This legal opinion was, instead, used by [DICO’s chair] to provide third party, expert attestation, to the minister that DICO had not violated any statutory salary freezes and to advise the minister of the very difficult position he had put DICO in by directing that it roll back executive salaries and recover overpayments. Simply put, disclosure of this legal opinion was no accident, it was done intentionally.

[84]  As evidence that the disclosure was intentional, the appellant refers to the following excerpts from a ministry policy Branch Issue Sheet which stated:

• DICO is seeking advice on how to implement the Minister’s requirements with respect to the implementation of the Public Sector and MPP Accountability and Transparency Act.
• DICO is asking whether they have the legal authority to deduct overpayments made to two executives in 2014, and how the monies should be recovered and reported to CRA.

[85]  The appellant says these excerpts, in addition to other information in the Issue Sheet, demonstrate that the ministry wrote the Issue Sheet upon having been advised by DICO of legal advice being obtained by it. He further submits that:

Given the numerous facts noted including the reference to difficulties with CRA in the Issue Sheet, it is very likely that MOF was provided with a draft copy of the legal opinion to hopefully motivate the minister to retract his direction to rescind and recover DICO salary increases.

The proposed response did not include a specific retraction of the minister’s direction, but rather advised DICO that “[i]t is DICO’s responsibility to interpret legislation and ensure compliance”. This was essentially telling DICO’s board that they, rather than the minister, are responsible and accountable for the proper administration of DICO’s activities.

There is no other plausible reason for MOF staff to have written such a fact intensive, Issue Sheet. The Issue Sheet was certainly not written in response to [a letter from DICO’s chair to the Minister of Finance dated December 10, 2014, a copy of which the appellant included with his representations]. The only conceivable source of the level of information on the Issue Sheet is from information supplied by DICO.

A report in Record 11 from what appears to be DICO’s Human Resources committee, makes reference to the legal opinion at issue in this appeal. Of note are the comments about forced pay back of any overpayments, constructive dismissal and claims against DICO ranging from 18 to 24 months.

[86]  The letter from DICO’s chair to the minister dated December 10, 2014 provided as follows:

On behalf of the Board of Directors, I am writing to thank the Minister for taking the time to meet with me on November 28^th along with your Chief of Staff and Assistant Deputy Minister to discuss the issue of the salary of DICO’s CEO. As requested, the Board took the opportunity to consider the Minister’s direction on the matter and at its Board meeting today passed a resolution to cap the CEO’s salary to the same level as reported in the 2013 “sunshine” list. A copy of the resolution is attached for the Minister’s information. The CEO’s salary has already been adjusted to implement this request.

Also on behalf of the Board, I would like to apologize for any misunderstanding that occurred with respect to this issue. DICO has always complied with and will continue to comply with any and all legislation and directives which applies to us.

I trust this meets with the Minister’s approval.

[87]  The appellant submits that under common law, because disclosure of the legal opinion was purposely done, either to trigger the Issue Sheet and/or as part of the board package provided to the ministry observer, privilege has been waived, in the absence of a common interest between the parties. The appellant submits in that regard that the common interest exception to waiver of privilege is only applicable to litigation privilege [41] .

The reply representations

[88]  DICO provided reply representations which were adopted and relied upon by the ministry.

[89]  DICO denies that privilege was waived and submits that:

… The privileged information contained in the records was shared with the ministry with the reasonable understanding and expectation that the parties shared a common interest in the legal advice and that confidentiality and privilege would be maintained.

[90]  DICO submits that it is well established that the common interest exception to waiver of privilege is applicable to solicitor-client privilege as well as litigation privilege [42] .

[91]  DICO submits that the situation in this appeal is very similar to that before the Adjudicator in Order MO-3253-I, where she found that the common interest exception to waiver of privilege applied to an email attaching a legal opinion as well as an email referring to the legal opinion [43] .

[92]  DICO submits:

DICO and the MOF share a common interest in understanding the state of the law on the matter discussed in the records. The only reason that the opinion was shared with the MOF was because of their common interest in the subject matter of the legal opinion and DICO’s reporting requirements under the CUCPA and the MOU, …

The appellant’s sur-reply representations

[93]  The appellant submits that to preserve the common interest, DICO would have had to “knowingly and purposefully shared this opinion with MOF on a strictly confidential basis, rather than simply passively allowing the MOF observer (and others at MOF) to simply see the opinion as an enclosure included with other voluminous board materials.”

[94]  The appellant refers to the “suggested response” in a Briefing Note he provided with his representations that indicated “[i]t is DICO’s responsibility to interpret legislation and ensure compliance” and asserts that this indicated that the ministry has no interest in DICO’s legal opinion because DICO is instructed to make its own determination and comply with the legislation.

[95]  The appellant also takes issue with there being a common interest in complying with the ministry’s request, because it is described as “moral suasion” on the Briefing Note but was understood by DICO to be a mandatory directive.

[96]  The appellant submits:

While the law concerning common interest privilege is still evolving in Canada, the appellant has great difficulty in believing the courts or the IPC would condone collusion between DICO and MOF to implement the Minister’s illegal directive by protecting, what the parties claim to be, a shared legal privilege.

Because of the un-constitutionality of the minister’s direction to DICO, it could and perhaps should be argued that privilege is lost when the legal opinion was shared with MOF with the objective of implementing the minister’s illegal direction.

[97]  Relying on R v. Serfaty [44] , the appellant submits that had the Minister’s direction been a criminal act, the fraud exception to solicitor-client privilege would apply and that an analogous ruling by this office would respect the purposes of FIPPA. The appellant submits that DICO’s attempts to comply with an illegal direction from the Minister does not warrant solicitor-client protection.

[98]  The appellant submits that a more likely and appropriate interpretation of DICO’s actions in sharing the legal opinion with the ministry was to:

• Provide independent professional confirmation to the Minister that DICO had complied with all applicable wage restraint legislation.
• Advise the Minister that compliance with his direction would likely expose DICO to significant damages for breaching its employment contracts with its affected executives.

[99]  The appellant submits that under this interpretation, the interests of DICO were adverse, rather than common, with the MOF.

[100]  The appellant submits that whether considered under something similar to the criminal fraud exception to solicitor-client privilege, or his interpretation of DICO’s actions in supplying the information, the application of section 19 should not be upheld.

Analysis and finding

[101]  There is no evidence before me of a criminal act. The appellant’s allegations do not reach the level of evidence required to support the application of the fraud exception to solicitor-client privilege discussed in R v. Serfaty and I will address this submission no further in my decision.

[102]  Before embarking on a discussion of whether the common interest exception to waiver of privilege applies, it is necessary to consider DICO’s alternative arguments.

DICO’s alternative arguments

[103]  The first alternative argument is that similar to the situation in Stevens v. Canada (Prime Minister), privilege was maintained over any information shared between DICO and the ministry as “government institutions”, and the issue of possible waiver never arises.

[104]  Stevens v. Canada (Prime Minister) dealt with a request for access to all legal accounts relating to a Commission of Inquiry (sometimes referred to as the Parker Commission) into allegations of conflict of interest. Commission counsel had provided the accounts to Commissioner Parker who submitted the accounts to the Privy Council Office for payment purposes. The Federal Court of Canada found that privilege had not been waived and the claim of solicitor-client privilege was upheld.

[105]  This was based on the Federal Court’s finding that the underlying solicitor-client relationship was between counsel and Commissioner Parker and that the Parker Commission was a department of government for financial purposes, and in particular the payment out of government funds of the costs of the Commission, including the costs of legal counsel.

[106]  However, and as set out in the decision, two Orders in Council had been made in respect of the Parker Commission. The first authorized Chief Justice Parker to inquire into and report on the facts following allegations of conflict of interest with respect to the applicant. In this Order in Council, it was provided for the Commissioner:

(b) to engage the services of such staff and counsel as he may consider necessary or advisable, at such rates of remuneration and reimbursement as may be approved by the Treasury Board;

. . .

The Committee do further advise that the Commissioner be directed to submit a report in both official languages to the Governor in Council as soon as possible, and to file his papers and records with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.

[107]  The second provided that, for the purposes of the Financial Administration Act [45] , the Parker Commission was designated as a government department:

1. pursuant to paragraph (b) of the definition “department” in section 2 of the Financial Administration Act, to designate the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens as a department for the purposes of the Financial Administration Act; and
2. pursuant to paragraph (b) of the definition “appropriate Minister” in section 2 of the Financial Administration Act, to designate the Prime Minister as the appropriate Minister with respect to the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens.

[108]  This gave rise to the following conclusion:

… I do not see how the fact that the Commission submitted its solicitors’ accounts to the Privy Council Office for payment purposes can be construed as the giving of accounts to a third party, thereby constituting waiver of the privilege over the accounts. I infer that the reason the accounts were given to the Privy Council Office reflects the administrative arrangement between the Parker Commission as one department of government and the Privy Council Office as another for payment of the Commission's expenses. Therefore, solicitor-client privilege has not been waived on the basis of disclosure to a third party.

[109]  Hence in Stevens v. Canada (Prime Minister) there was evidence to support the conclusion that the Parker Commission was a government department. There is no such evidence here. Nor is DICO an institution under the Act . In my view, therefore, the case before me is distinguishable and I find that there is no similar relationship between the ministry and DICO to negate the waiver of solicitor-client privilege when the record was provided to the MOF observer.

[110]  I now turn to the second alternative argument, also addressed in Stevens v. Canada (Prime Minister), as well as Philip Services Corp. (Receiver of) v. Ontario Securities Commission [46] (Philip), another authority cited by DICO, namely that there was no voluntariness and hence no implied waiver of privilege occurred when the record was provided to the MOF observer.

[111]  In Stevens v. Canada (Prime Minister) the Federal Court held that where a statute requires disclosure, no voluntariness is present and no implied waiver occurs. Because Commissioner Parker was required by Order in Council to file his papers and records with the Clerk of the Privy Council, disclosure to the Privy Council Office was compulsory and if disclosure to the Privy Council Office could be construed as disclosure to a third party, such disclosure was compulsory and did not constitute waiver.

[112]  The Federal Court explained:

In general, the accounting records of commissions of inquiry “ultimately have to form part of government records, or be subject to government audit,” see: Anthony and Lucas in A Handbook on the Conduct of Public Inquiries in Canada, supra, at page 41. Order in Council P.C. 1986-1139 requires the Commissioner “to file his papers and records with the Clerk of the Privy Council as soon as reasonably may be after the conclusion of the inquiry.” Thus, disclosure to the Privy Council Office was compulsory.

It is not entirely clear whether the accounts in question were submitted to the Privy Council Office during the course of the inquiry or after its conclusion. There is an indication that the accounts may have been submitted on an ongoing basis for the purposes of payment. However, in the circumstances, nothing turns on when the accounts were submitted to the Privy Council Office. There was an overall requirement that they ultimately be sent, and therefore their disclosure to the Privy Council Office was compulsory.

[113]  Philip reached a similar result with respect to legal opinions provided to a company’s auditor, but found that the statutory compulsion resides in what was at the time section 153  of the Ontario Business Corporations Act  [47] .

[114]  In Philip, Justice Lane, on behalf of a unanimous Ontario Divisional Court, wrote at paragraphs 50 and 51 of the decision:

[50] In Lavallee, Rackel & Heintz [footnote omitted], the Supreme Court dealt with whether s. 488.1  of the Criminal Code , which authorizes a procedure for determining issues of privilege in the context of seizure of documents from a person’s solicitor, infringed s. 8  of the Canadian Charter of Rights and Freedoms . The court divided on the issue, but both Arbour J. for the majority and LeBel J. for the minority, agreed that solicitor and client privilege must be strictly upheld. Arbour J. reviewed the prior jurisprudence holding that the privilege has “long been regarded as fundamentally important to our justice system” [footnote omitted] and that the privilege “must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.” [footnote omitted] Arbour J. also observed (at para. 20) that Lamer J. in Descôteaux (supra) had applied the minimal impairment test, limiting the breach of solicitor-client privilege to “what is strictly inevitable”. At p. 241 S.C.R., Arbour J. wrote:

Indeed, solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection. Such protection is ensured by labeling as unreasonable any legislative provision that interferes with solicitor-client privilege more than is absolutely necessary. In short, in the specific context of law office searches for documents that are [page227] potentially protected by solicitor-client privilege, the procedure set out in s. 488.1 will pass Charter  scrutiny if it results in a “minimal impairment” of solicitor-client privilege.

[51] While the present case does not involve a Charter  challenge, the message from the Supreme Court jurisprudence is clear: restrictions on solicitor-client privilege to attain other important societal objectives are to be closely scrutinized and restricted to what is absolutely necessary for the competing objective so as to achieve the minimal necessary impairment of solicitor-client privilege. It would follow, therefore, that s. 153 of the OBCA cannot be read as authorizing the auditor to ignore the solicitor-client privilege with which the documents are impressed in his hands by their nature as Legal Opinions and the limited use that may be made of them.

[115]  This led to his discussion and conclusion found at paragraphs 55 to 58 of the decision regarding the legal opinions:

[55] Philip’s submissions speak to the company weighing the need for frank disclosure to the auditor as opposed to the chance that their information will become public. That may in practice be the case where the company is less than appropriately forthcoming. In my view, the effect of s. 153 of the OBCA is that there is no weighing that is appropriate; the company must in any event disclose what the auditor seeks. That is part of the basis for confining the extent of the waiver. The submissions of Staff assume that the limited waiver of the privilege for the purposes of the audit will prevent the auditors from making disclosures revealing fraud that they otherwise would make. But the purposes of the audit are those established by law or by the standards of the auditing profession, and to the extent that the law or those standards require that auditors report to the shareholders, or to anyone else, on any matter, the waiver will extend to that matter. To come to the Waxman Issue in particular, the auditors would be able to use the disclosed documents as an aid to judging the need for amendments or notes to financial statements, the need for further examination of the company's financial controls, the need for amendments to certificates appended to financial statements filed with regulators, any need for reporting to insurers, any requirement for reporting to licensing authorities, and so forth.

[56] It was submitted that a limited waiver would place auditors in an impossible position: they would have the document but be unable to use it. For the reasons set out above, I disagree. The auditor has the scope to use the document across the full range of auditor responsibilities. Whether the auditor could disclose the contents of the document in the course of explaining [page229] why they were resigning the account seems a red herring. With a regulated public company, the resignation of the auditor accompanied by a refusal to certify the accounts is the kind of weapon that renders the disclosure of legal advice redundant.

[57] In my view, there is no necessity, in order to achieve the societal objective of fair financial statements certified as fair by fully informed auditors, that the waiver go beyond the auditors. By definition, the waiver enables the auditors to comply with the full scope of their audit standards. To hold that the waiver is broader than that, is to sanction a more than “minimal impairment” of this privilege which is fundamentally important to our justice system. In my view, the jurisprudence prevents finding that the Legal Opinions, once given to the auditors in that capacity for their purposes, were thereby made available to be handed over to the Commission for its purposes. That the statute compelling production to the auditors was not directly invoked seems to me to be irrelevant: it was there in the background. Even if the statute did not exist, the fundamental importance of solicitor-client privilege would dictate the narrow waiver rather than the broad.

[58] In my view, the Commission erred when it found that the giving of the Legal Opinions to Deloitte constituted an unlimited waiver of the solicitor-client privilege.

[116]  It may be that limited waiver can occur in the absence of a statutory compulsion. However, in light of my finding below that the common interest exception to waiver of privilege applies, it is not necessary for me to make a decision regarding whether the facts before me support the level of compulsion necessary to establish the application of limited waiver.

[117]  I will now discuss that principle.

The common interest exception to waiver of privilege

[118]  In Order PO-3154, I reviewed the case law pertaining to a determination of whether the common interest exception to waiver of privilege exists in the context of a commercial transaction. I reviewed Pritchard v. Ontario (Human Rights Commission), [48] where Major J., for the Supreme Court of Canada stated:

The common interest exception originated in the context of parties sharing a common goal or seeking a common outcome, a “selfsame interest” as Lord Denning, M.R. described it in Buttes Gas & Oil Co. v. Hammer (No. 3), [1980] 3 All E.R. 475 (C.A.) at p. 483. It has since been narrowly expanded to cover those situations in which a fiduciary or like duty has been found to exist between the parties so as to create common interest. These include trustee-beneficiary relations, fiduciary aspects of Crown-aboriginal relations and certain types of contractual or agency relations…

[119]  I wrote at paragraph 27:

Although the doctrine of common interest privilege is characterized in a number of ways in the jurisprudence cited by the parties, in the absence of a fiduciary or like duty, including trustee-beneficiary relations, fiduciary aspects of Crown-aboriginal relations and certain types of contractual or agency relations, none of which are at issue in the appeal before me, my view is that the argument is better framed as to whether there is a common interest that is sufficient to withstand waiver of any solicitor- client privilege that might have existed in the information…

[120]  I also referred to Order MO-1678, in which Adjudicator Donald Hale reviewed the authorities as they existed then and wrote:

In the present appeal, it is clear that although the Municipality and the plaintiffs are all concerned about the noise created by the Dragway, they do not have the “selfsame” interest. For example, the plaintiffs would share in any award of damages, while it appears that the Municipality would not. However in my view, the fact that the interests are not identical is not a bar to the existence of a common interest in the context of the Canadian authorities. …

Other Canadian authorities also indicate a broader basis for common interest, which may exist outside the context of litigation privilege and encompass situations involving solicitor-client communication privilege. For example, in Canadian Pacific Ltd. v. CNADA (Competition Act , Director of Investigation and Research), [1995] O.J. No. 4148 (Gen. Div.), Farley J. found that common interest privilege could apply to communication by a bank’s outside counsel with a third party in the context of a commercial transaction. He formulated the following test for common interest (at para. 27):

It would also seem to be that a useful test might be whether for there to be a common interest, would it be reasonably possible for the same counsel to represent both…

And in Pitney Bowes of Canada Ltd. v. Canada, [2003] F.C.J. No. 311 (T.D.), the court dealt with a situation in which various companies were parties to a complex leasing transaction involving both the purchase and subsequent leasing of railway cars. One law firm represented all the parties at one time or another, “where multiple parties need legal advice in areas where their interests were not adverse.” The Court applied common interest privilege and stated (at para. 18):

As mentioned above, in these kinds of cases the real issue is whether the privilege that would originally apply to the documents in dispute has somehow been lost – through waiver, disclosure or otherwise. This is a question of fact that will turn on a number of factors, including the expectations of the parties and the nature of the disclosure. I read the foregoing cases as authority for the proposition that in certain commercial transactions the parties share legal opinions in an effort to put them on an equal footing during negotiations as, in that sense, the opinions are for the benefits of multiple parties, even though they may have been prepared for a single client. The parties would expect that the opinions would remain confidential as against outsiders. In such circumstances, the courts will uphold the privilege.

[121]  I went on to articulate the following test at paragraph 179 of PO-3154:

… the determination of the existence of a common interest to resist waiver of a solicitor-client privilege under Branch 1, including the sharing of a legal opinion, requires the following conditions:

(a) the information at issue must be inherently privileged in that it must have arisen in such a way that it meets the definition of solicitor-client privilege under Branch 1 of section 19(a) of the Act , and

(b) the parties who share that information must have a “common interest”, but not necessarily [an] identical interest.

[122]  I also referenced Pitney Bowes, cited above, and wrote at paragraph 180 that the determination of the existence of a common interest is highly fact-dependent [49] .

[123]  In Order PO-3167, Adjudicator Hale had to determine whether a memorandum prepared by the Assistant Deputy Attorney General for the Assistant Deputy Minister of the Ministry of Community Safety and Correctional Services and Ontario Crown Attorneys was exempt under section 19 of the provincial Act  despite the fact that the Assistant Deputy Minister had subsequently distributed it to “All Chiefs of Police”.

[124]  Adjudicator Hale found, firstly, that there was a solicitor-client relationship between the Assistant Deputy Attorney General and the ministry’s Assistant Deputy Minister in connection with the memorandum, and that the privilege extended to the ministry personnel it was shared with.

[125]  Adjudicator Hale then considered whether the common interest exception to waiver of privilege applied to the subsequent sharing of the memorandum with all Chiefs of Police. After reviewing the authorities, including Pitney Bowes, cited above, Adjudicator Hale concluded that the common interest exception to waiver of privilege applied:

In my view, these principles apply equally in the circumstances of this appeal. The interest of Crown Attorneys, the ministry, the OPP Commissioner and municipal chiefs of police are not identical, and they each play different roles in the administration of criminal justice as it pertains to the subject matter of the memorandum. However, they all share a common interest in having a uniform understanding of the state of the law on the particular point in issue, as well as a uniform approach to its administration as evidenced by the content of the memorandum itself. The words “privileged and confidential” appearing on the face of the memorandum indicate that it is to remain confidential as against others who are not its intended recipients or beneficiaries. The common interest shared by the recipients of the memorandum thus negates any waiver of the privilege that would otherwise have occurred by its disclosure to persons or entities outside the solicitor-client relationship.

In summary, I find that the memorandum had its origin as a privileged communication passing from the Assistant Deputy Attorney General on the one hand, to MAG Crown Attorneys and the ministry’s Assistant Deputy Minister on the other. As such, it was a document which was subject to solicitor-client communication privilege for the purposes of section 19(a) from its inception.

Further, based on the context in which the document was provided to the Chiefs of Police by the ministry’s Assistant Deputy Minister, there existed a common interest in the confidential subject matter of the memorandum. I find that they share a common interest in matters relating to law enforcement and in the administration of justice generally. The memorandum at issue in this appeal describes a confidential opinion which was only shared with the Chiefs because of their common interest with MAG and the ministry in law enforcement concerns. I find further support for this finding in the fact that the memorandum itself states that it may be shared with the police, but is otherwise privileged and confidential, although this alone would not be determinative.

As a result of this finding of a common interest in the subject matter of the record, I find that its disclosure to the Chiefs did not constitute a waiver of the privilege that existed in the document. Accordingly, I conclude that it remains subject to solicitor-client communication privilege and is exempt from disclosure under section 19(a), on that basis.

[126]  I will now apply the two-part test I set out in Order PO-3154 to the information at issue before me.

1) Is the information privileged under Branch 1?

[127]  I find that the information at issue is subject to solicitor-client communication privilege under Branch 1. Pages 14 to 28 of Record 11 consist of an opinion communicated from DICO’s counsel to the Chair of DICO’s Board made for the purpose of providing legal advice on a particular topic. I am satisfied that the communication was provided in confidence. The opinion was addressed to one party, and contains a detailed formal legal opinion. Under the circumstances, I conclude that the communication was intended to be confidential. Page 11 contains a summary of the opinion, and this information is therefore also subject to the privilege.

2) Do DICO and the ministry have a common interest in the information remaining at issue?

[128]  Section 8.4 of the MOU sets out the responsibilities of the Deputy Minister of Finance and section 8.4(o) provides that one of the Deputy Minister’s responsibilities is assigning a ministry staff person to sit on DICO’s Board as an observer. Section 9 sets out DICO’s reporting requirements within the framework of the MOU. This includes providing the ministry with a Business Plan (including a system of performance measures and reporting on the achievement of the objectives set out in the business plan), providing Annual Reports and Other Reports. In addition to the reports set out in appendix 1 of the MOU, section 9.3(b) provides that “[a]t the request of the Minister or Deputy Minister, supplying specific data and other information that may be required from time-to-time for the purpose of ministry administration”.

[129]  With respect to the appellant’s position that the ministry and DICO are adverse in interest, as I discussed in the two part test for the application of the common interest exception to waiver of privilege set out above, the parties who share initially privileged information must have a “common interest”, but not necessarily an identical interest. Given the role of the ministry regarding its oversight of DICO, that a ministry observer was to attend all board meetings, whether in-camera or otherwise, and that both the ministry and DICO had an interest in the minister’s request being fulfilled, and ensuring compliance with any and all legislation and directives applying to DICO, I find that they shared a common interest in having a common understanding of the state of the law on the particular matter discussed in the legal opinion and the summary in page 11 of Record 11. In that regard, both DICO and the ministry are concerned with the proper and cost-effective fulfillment of government policy in relation to credit unions/caisses populaires. It is an interest that extends seamlessly into the exchange of the type of information in the record from DICO to the ministry, with the CUCPA and the MOU acting in concert to create an environment of transparency with respect to this flow of information.

[130]  I find, therefore, that DICO and the ministry have established that a common interest exists in the information remaining at issue. As a result of this finding of a common interest in the subject matter of the record, I find that its disclosure to the ministry observer, on behalf of the ministry, did not constitute a waiver of the privilege that existed in the information.

[131]  As well, applying the reasoning in S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. [50] I am not satisfied that fairness or consistency require a finding that waiver of privilege over the information at issue has taken place by virtue of certain information being disclosed to the appellant or being in the public domain. The information in the possession of the appellant or available in the public domain, does not specify the reasoning or legal analysis that is contained in the information remaining at issue in the appeal.

[132]  Accordingly, I conclude that it remains subject to solicitor-client communication privilege and is exempt from disclosure under section 19, Branch 1, on that basis.

Issue E: Did the ministry exercise its discretion under section 19, or section 49(a), in conjunction with section 19, as the case may be? If so, should this office uphold the exercise of discretion?

[133]  The section 19 and 49(a) exemptions are discretionary, and permit an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[134]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• it does so in bad faith or for an improper purpose
• it takes into account irrelevant considerations
• it fails to take into account relevant considerations.

[135]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [51] This office may not, however, substitute its own discretion for that of the institution. [52]

The ministry’s representations

[136]  The ministry submitted that in exercising its discretion the ministry balanced the purposes of FIPPA and the interest in ensuring that a client may confide in a solicitor on a legal matter without reservation. The ministry adds that it:

… has also taken into account other relevant factors including that the appellant is not seeking his own personal information, and the nature of the information and the extent to which it is sensitive to the institution and to solicitor-client privilege. The exemption has been applied specifically and only where necessary, balanced against the purpose of FIPPA in that information should be available to the public.

[137]  Referencing Order PO-3730, the ministry submits that:

In our case, the ministry has disclosed as much of the records as possible and [undertaken] a thorough examination of the records, disclosing what is deemed necessary with consideration given for the purposes of FIPPA and the importance of solicitor-client privilege. The ministry submits that discretion was properly exercised and there was no bad faith which would warrant the IPC not upholding the discretion of the ministry.

DICO’s representations

[138]  With respect to the ministry’s exercise of discretion DICO submits, amongst other things, that privilege belongs to the client receiving legal advice and can only be waived by the client. It submits that the client in this case is DICO and that it is not open to the ministry, or this office, to waive privilege over legal advice provided to DICO.

The appellant’s representations

[139]  The appellant submits that, based on the position he held, some of the severances may qualify as his personal information as defined in section 2(1) of the Act  (considering sections 2(2) and 2(3)), and should be disclosed to him.

Analysis and finding

[140]  An institution’s exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of law. [53] It is my responsibility to ensure that this exercise of discretion is in accordance with the Act . If I conclude that discretion has not been exercised properly, I can order the institution to reconsider the exercise of discretion. [54]

[141]  I am satisfied overall that the ministry properly exercised its discretion under section 19 of the Act , whether alone or in conjunction with section 49(a). It should be noted that the Supreme Court of Canada has stressed the categorical nature of the privilege when discussing the exercise of discretion in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association [55] .

[142]  I am satisfied that the ministry was aware of the reasons for the request and why the appellant wished to obtain the information. I am satisfied that in proceeding as it did, and based on all the circumstances, the ministry considered why the appellant sought access to the information, the nature of the information and whether the appellant was an individual or an organization. In all the circumstances and for the reasons set out above, I uphold the ministry’s exercise of discretion.

[143]  I have also considered whether the information that I have found to be subject to section 19 of the Act , either alone or in conjunction with section 49(a), can be severed and portions of the withheld information be provided to the appellant. In my view, in light of the appellant’s familiarity with underlying matters in the information remaining at issue, I am satisfied that the record cannot be severed without disclosing information that I have found to fall within the scope of section 19 of the Act , whether alone or in conjunction with section 49(a). Furthermore, as identified in previous orders, an institution is not required to sever the record and disclose portions where to do so would reveal only “disconnected snippets”, or “worthless” or “meaningless” information, which any other severance would result in here. [56]

ORDER:

1. I order the ministry to disclose page 29 of Record 11 to the appellant by sending it to him by September 23, 2019 but not before September 17, 2019.
2. The record at issue is subject to the Act .
3. The decision of the ministry is otherwise upheld and the appeal is dismissed.
4. I reserve the right to require the ministry to send me a copy of page 29 of Record 11 as disclosed to the appellant.

Original Signed by:		August 16, 2019
Steven Faughnan
Adjudicator