ORDER MO-4314

Appeal MA20-00362

Township of Oro-Medonte

January 6, 2023

Summary: The Township of Oro-Medonte (the township) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for access to a specified legal opinion. The township issued a decision denying access to the legal opinion withholding it under section 12  (solicitor-client privilege) of the Act . The appellant appealed the township’s decision. In this order, the adjudicator upholds the township’s decision, and dismisses the appeal.

Statutes Considered: The Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, section 12 .

Orders Considered: Order MO-2945-I.

Cases Considered: Stevens v. Canada (Prime Minister) (1988), 161 D.L.R. (4th) 85.

OVERVIEW:

[1] The Township of Oro-Medonte (the township) amended a zoning bylaw in 2020 about short-term rentals (STRs) in the township. This order determines the issue of access to a specified legal opinion the township received from a named law firm about the legality of STRs under existing zoning bylaws.

[2] The township received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for the following records:

1. All policies, guidelines, directives, and/or decision of the Township or Council (or a member thereof) and/or an enforcement official regarding enforcement, or the ability to enforce, Township zoning bylaws against persons engaging in STRs;
2. All policies, guidelines, directives, and/or decision of the Township or Council (or a member thereof) and/or an enforcement official regarding how Complaints regarding STRs should be handled including whether or not to enforce existing zoning bylaws or whether existing zoning bylaws could be enforced, against a person or person engaging in STRs;
3. All policies, guidelines, directives, and/or decision of the Township or Council (or a member thereof) and/or an enforcement official about whether STRs could be legally engaged in under existing zoning bylaws;
4. The opinion from [named law firm] about the legality of STRs under existing zoning bylaws referred to by members of the public in the public meeting held [on a specified date]. I note that several residents (including Messrs [last name and last name]) disclosed that they were told the substance of the opinion by the Township thereby waiving any possible claim to legal privilege; and
5. Copy of email or letter sent by the Mayor to [named individual] and referred to by [same named individual] at the Public meeting on June 25, 2020.

[3] The township issued a decision advising that records responsive to request items 1, 2, 3 and 5 did not exist. The township denied access in full to the legal opinion responsive to request item 4 under section 12 (solicitor-client privilege) of the Act .

[4] The appellant appealed the township’s decision to the Information and Privacy Commissioner of Ontario (IPC) and a mediator was appointed to explore resolution.

[5] During the course of mediation, the appellant advised that he accepted the township’s decision about items 1, 2, 3, and 5. However, the appellant confirmed his intention to pursue access to the legal opinion (item 4). The township maintained its decision to deny access to it in full under section 12 of the Act .

[6] As a mediated resolution was not possible, the appeal was transferred to the adjudication stage. I decided to commence an inquiry by inviting representations from the township, initially. I received and shared representations from the township with the appellant, and invited representations from the appellant. The appellant submitted representations, which I shared with the township. I then invited and received reply representations from the township, which I shared with the appellant. I then invited and received sur-reply representations from the appellant.

[7] In this order, I uphold the township’s decision and dismiss the appeal.

RECORD:

[8] The record at issue in this appeal is the legal opinion (legal opinion) from a named law firm about the legality of STRs under existing zoning bylaws, which was withheld in full under section 12 of the Act .

ISSUES:

1. Does the discretionary solicitor-client privilege exemption at section 12 of the Act  apply to the legal opinion?
2. Did the township exercise its discretion under section 12? If so, should I uphold the exercise of discretion?

DISCUSSION:

Issue A: Does the discretionary solicitor-client privilege exemption at section 12 of the Act apply to the legal opinion?

[9] The township claims that the discretionary solicitor-client privilege exemption at section 12 applies to the legal opinion. The appellant argues that it does not.

[10] Section 12 exempts certain records from disclosure, either because they are subject to solicitor-client privilege or because they were prepared by or for legal counsel for an institution. It states:

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

[11] Section 12 contains two different exemptions, referred to in previous IPC decisions as “branches.” The first branch (“subject to solicitor-client privilege”) is based on common law. The second branch (“prepared by or for counsel employed or retained by an institution…”) is a statutory privilege created by the Act . The institution must establish that at least one branch applies. Because I find below that the common law (i.e., first branch) solicitor-client communication privilege applies, I will not set out or address the township’s arguments that the second branch also applies.

Branch 1: common law privilege

[12] At common law, solicitor-client privilege encompasses two types of privilege:

• solicitor-client communication privilege, and
• litigation privilege.

[13] Because I find below that solicitor-client communication privilege applies, I do not summarize or address the township’s arguments that litigation privilege also applies.

Common law solicitor-client communication privilege

[14] The rationale for the common law solicitor-client communication privilege is to ensure that a client may freely confide in their lawyer on a legal matter. [1] This privilege protects direct communications of a confidential nature between lawyer and client, or their agents or employees, made for the purpose of obtaining or giving legal advice. [2] The privilege covers not only the legal advice itself and the request for advice, but also communications between the lawyer and client aimed at keeping both informed so that advice can be sought and given. [3]

[15] The privilege may also apply to the lawyer’s working papers directly related to seeking, formulating or giving legal advice. [4]

[16] Confidentiality is an essential component of solicitor-client communication privilege. The institution must demonstrate that the communication was made in confidence, either expressly or by implication. [5] The privilege does not cover communications between a lawyer and a party on the other side of a transaction. [6]

Loss of privilege: waiver

[17] Under the common law, solicitor-client privilege may be waived.

[18] 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. [7]

[19] 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. [8]

[20] Generally, disclosure to outsiders of privileged information constitutes waiver of privilege. [9] However, waiver may not apply where the record is disclosed to another party that has a common interest with the disclosing party. [10]

Representations of the township

[21] The township submits that it has been considering the issue of STRs since 2017 and amended its zoning bylaw in 2020 to provide clarity about the status of STRs in the township.

[22] The township submits that the legal opinion is clearly subject to solicitor-client privilege because it was prepared by legal counsel retained by the township in relation to STRs. The township submits that the opinion is marked “privileged and confidential” and the township expected that this legal opinion would remain confidential.

[23] The township observes that the appellant challenges the township’s solicitor-client privilege over the legal opinion, alleging that the township waived it by mentioning the legal opinion in a public meeting held on June 25, 2020. The township submits that it has not waived privilege over the legal opinion and that the references made by residents in the meeting about legal advice were made in a generalized manner with the intent to reassure residents.

[24] The township submits that the mere mention of a legal opinion is not sufficient to constitute waiver of solicitor-client privilege, and the IPC has held that it is often necessary or desirable for a public body to refer to the crux of the advice its solicitors provide to it in order to carry out its mandate and responsibilities. The township further submits that in many cases, including the circumstances of this appeal, the public body will intend to retain the privilege, while at the same time providing a minimal degree of public disclosure to ensure the proper discharge of its functions. The township submits that the IPC has held that in the usual case, this should not, of itself, constitute express or implied waiver of the privilege attached to the underlying solicitor-client privilege. [11]

Representations of the appellant

[25] The appellant submits that the township has not adduced any evidence to substantiate its claim that the legal opinion is privileged, and that I should find the legal opinion is not privileged based on this alone.

[26] The appellant submits that the township has waived privilege over the legal opinion and it did so through the conduct of the Mayor. The appellant alleges the Mayor has disclosed “detailed privileged information” in the legal opinion to residents of the township on several occasions, including:

• At the specified public meeting, where two specified residents stated that the Mayor had provided them with information from the opinions.

○ The first person’s statement, excerpts of which are set below, also included portions of an email from the Mayor (underlined):

▪ “[Mayor] sent an email to my wife and me which indicated that ‘it was council’s unanimous decision to follow the advice of the township’s legal counsel to ensure the township had the strongest approach to achieve the mutually desired outcomes.’ Clearly if legal counsel’s advice is agreed to unanimously, then no changes to the wording or content should be undertaken, thus, I agree with the wording with no changes.”

▪ “Thirdly, [the Mayor] went on to write ‘[named law firm] has recommended a strategy in order to put the township in the strongest position to achieve council’s desired outcome.’ Previously [the Mayor] had indicated to us that [named law firm] had never lost a case while representing the township. So I agree strongly with the amendment as written.”

▪ “I hope my three minutes today has made the point that I support the amendment with no changes and no exceptions. This has been agreed to unanimously by Mayor and council which I applaud, [named law firm] and township legal counsel.”

○ The second person mentions that the proposed amendment to the bylaw reflects the advice received from the named law firm.

• Through three emails from the Mayor to residents of the township which state that the named law firm is involved and their recommendations are being followed.

[27] The appellant submits that the following conclusions can be drawn from these instances:

• The township desired to enact a STR bylaw that would put it in the strongest legal position if challenged.
• The township engaged the services of the named law firm. It was held out as being “a legal firm recognized as one of the leading authorities on STRs” and one that had never lost a case for the township.
• The named law firm provided opinions providing the strategy and advice as to how to deal with the perceived disruptive STR issue, and drafted the STR bylaw.
• The named law firm’s strategy was to enact the STR bylaw discussed publicly on June 25, 2020.
• The named law firm’s advice was to put the township in the strongest position to achieve council’s desired outcome, and the township was following their advice in proposing the enactment of the Ban STR Bylaw.

[28] Because of the above disclosures by the Mayor, the appellant submits that there has been an express, implied, and deemed waiver of solicitor-client privilege by the township.

[29] The appellant argues that the Mayor’s conduct constitutes a deemed waiver of privilege based on the case of Livent Inc. v. Drabinsky (Livent), [12] which held that privilege may be waived when the client’s conduct held a view or followed a course of action because of the legal advice given to them.

[30] The appellant submits that the “bottom line” cases referred to by the township do not apply because the township has not provided evidence that only a small part of the opinion was disclosed, there is no evidence why it was necessary or desirable to make the disclosures and, there is no evidence the disclosures were part of any mandate of the township.

[31] The appellant also made submissions about the township’s inability to locate the email that was read during the specified meeting. He outlines several circumstances, which he alleges, explains the missing email and undermines the township’s “bottom line” cases. I have reviewed but will not summarize this portion of the appellant’s representations, because the arguments are speculative and make allegations about the conduct of the township that I find are not relevant to the issues before me.

The township’s reply

[32] The township submits that the IPC has only found waiver of privilege in very clear cases, such as when the record at issue had been forwarded directly to third parties. The township submits that there is no evidence in this appeal.

[33] The township submits that the Mayor’s conduct should not lead to a finding that he implicitly waived privilege because there was no intention to waive privilege. The township submits that a mere mention that the township has retained legal advice and is planning on following same does not show an intention to waive privilege.

[34] The township submits that disclosure of the “bottom line” of a legal opinion does not amount to a waiver of solicitor-client privilege. In support of its position, the township cites several IPC orders. [13] The township submits that in noting that the named law firm had been retained, and a legal strategy was offered and was to be followed, the Mayor disclosed, at most, the “bottom line” of the opinion. The township further submits that the “bottom line” does not merely refer to a “single sentence from an opinion” as the appellant argues. The township argues that it also took steps to preserve the confidentiality of the opinion by marking it as “privileged and confidential”. The township submits, therefore, that it intended to retain privilege while providing a minimal degree of disclosure.

[35] The township submits that the conduct of the Mayor does not constitute a deemed waiver of privilege despite the appellant’s reliance on Livent for the proposition that privilege may be waived when the client’s conduct held a view or followed a course of action because of the legal advice given to them. The township submits that in Livent, the client specifically disclosed that she was told to “put something in writing”, and the court found sufficient evidence that she interpreted this in a way that caused her to write a memorandum which was intended to paint herself in a positive light while negatively portraying another party.

[36] The township submits that the Mayor has not disclosed any legal strategy as specific as the one disclosed in Livent. The township submits that, at most, the Mayor has indicated that the township is broadly following the recommendations of the named law firm with respect to a number of matters, and that he agrees with a proposed amendment to the township’s zoning bylaw. The township argues that this is a vague statement that discloses no particular action taken as a result of legal advice, and thus should be distinguished from the disclosure of specific legal advice causing a specific course of action as in Livent.

The appellant’s sur-reply

[37] The appellant submits that there has been an express waiver of privilege because the Mayor disclosed specifics about the legal opinion to township residents. He also submits that the township has admitted that the legal opinion was shared with township staff and council, and there is no evidence they were instructed to keep the opinions privileged or whether the legal opinion was shared for the purpose of giving or receiving legal advice.

[38] The appellant repeats that there has been an implied waiver because fairness requires that the legal opinion be waived.

[39] The appellant submits that despite saying that Livent does not apply, the township has not provided any cases to rebut the proposition he alleges Livent stands for.

[40] With respect to the “bottom line” cases cited by the township, generally, the appellant submits that they are not supportive of the township’s position and not applicable to the facts of this appeal.

Analysis and findings

[41] After reviewing the legal opinion at issue and the representations of the parties, I find that the legal opinion is exempt under the section 12 common law solicitor-client communication privilege. I also find that the township has not waived privilege.

[42] Without revealing its substance, I find that the legal opinion contains advice and a recommended strategy from the named law firm to the township about STRs. Given the subject matter and context of the record, I accept that the communications took place in confidence, and I note that the legal opinion is marked as privileged and confidential. I find that the legal opinion is confidential communication between a lawyer retained by the township and the township, which is precisely what the section 12 exemption aims to protect. As a result, I am satisfied that disclosure of the legal opinion would directly reveal the content of privileged solicitor-client communications.

Waiver

[43] The appellant argues that there has been a waiver of privilege over the legal opinion by the township, either express, implied, or deemed. He cites several instances where he alleges that the Mayor has disclosed advice or recommendations from the legal opinion. I have reviewed the appellant’s submissions and compared them to the legal opinion at issue, and I find that these examples cited by the appellant do not disclose the contents or substance of the legal opinion. For example, revealing that a named law firm provided a legal opinion to the township does not reveal the information, analysis or advice contained in the opinion (if any).

[44] Even if I were to accept that some of these examples cited by the appellant revealed some privileged information from the legal opinion, previous IPC orders have found that disclosing a small portion of the “bottom line” of a legal opinion does not constitute an intention to waive privilege in a record, and that fairness or consistency do not require a determination that this constitutes an implicit waiver of privilege. [14] I agree with and adopt their reasoning in this order.

[45] I also find support in my conclusion in Stevens v. Canada (Prime Minister) [15] (Stevens) and Order MO-2945-I. In Stevens, the Federal Court addressed the issue of waiver where a federal institution provided partial access under the federal  Access to Information Act  to legal accounts, withholding the narrative portion of the accounts while providing access to the dollar amounts. In dealing with the issue of waiver in the freedom of information context, the court held that, in making the relatively minimal disclosure of a small portion of the “bottom line” legal advice it received, the institution did not intend to waive privilege with respect to the record itself. The court held that, although the institution did provide a small portion of the “bottom line” legal advice it received, “fairness and consistency” did not require a finding that the privilege ceased and held that the institution had not, by disclosing bottom line advice, implicitly waived privilege.

[46] In Order MO-2945-I, former Assistant Commissioner Sherry Liang held that a town’s release of an executive summary of a legal opinion was done in the interest of public transparency and did not amount to a waiver of privilege. In finding that the disclosure of the executive summary of a legal opinion did not amount to waiver, she considered a number of cases where the IPC upheld privilege where public disclosure of some information gave rise to claims of implied waiver.

[47] Order MO-2945-I, and the cases former Assistant Commissioner Liang considered in it, along with this current appeal, involve instances where public bodies disclosed a portion of a conclusion reached in a privileged legal opinion, and held that such relatively minimal disclosure did not amount to an implied waiver that would warrant disclosure of the privileged record under the Act .

[48] Additionally, while the appellant argues that the sharing of the legal opinion with township staff and council constitutes a waiver of privilege, I find that it does not. All of the township’s staff and council are part of the institutional client, and communication of legal advice among them does not waive the privilege.

[49] Finally, the appellant argues that the Mayor’s conduct constitutes a deemed waiver of privilege based on Livent, which the appellant argues stands for the proposition that privilege may be waived when the client’s conduct held a view or followed a course of action because of the legal advice given to them. I find that the appellant’s summary of the case to be an oversimplification. The finding in Livent was fact-specific to a commercial case, and I find that it is not persuasive, nor applicable to the appeal before me.

[50] Based on the evidence before me, I find that there is not an express, implied, or deemed waiver of privilege over the legal opinion at issue in this appeal. Accordingly, I find that the legal opinion is exempt under the discretionary solicitor-client privilege exemption at section 12 of the Act .

Issue B: Did the township exercise its discretion under section 12? If so, should I uphold the exercise of discretion?

[51] The section 12 exemption is discretionary (the institution “may” refuse to disclose), meaning that the institution can decide to disclose information even if the information qualifies for exemption. An institution must exercise its discretion. On appeal, I may determine whether the institution failed to do so.

[52] In addition, I 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; or
• it fails to take into account relevant considerations.

[53] In either case, I may send the matter back to the institution for an exercise of discretion based on proper considerations. [16] I cannot, however, substitute my own discretion for that of the institution. [17]

[54] Some examples of relevant considerations are listed below. However, not all of these will necessarily be relevant, and additional considerations may be relevant: [18]

• the purposes of the Act , including the principles that:
• information should be available to the public,
• individuals should have a right of access to their own personal information,
• exemptions from the right of access should be limited and specific, and
• the privacy of individuals should be protected,
• the wording of the exemption and the interests it seeks to protect,
• whether the requester is seeking their own personal information,
• whether the requester has a sympathetic or compelling need to receive the information,
• whether the requester is an individual or an organization,
• the relationship between the requester and any affected persons,
• whether disclosure will increase public confidence in the operation of the institution, and
• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person.

Representations, analysis and findings

[55] The township submits that it properly exercised its discretion to withhold the legal opinion under section 12. The township states that it took into consideration the public interest in maintaining privilege over privileged information and the legal risks that would arise if it were disclosed. The township further states that it considered that disclosure of the legal opinion would undermine the very purpose of solicitor-client privilege, which is to permit full, free and frank communication between lawyers and their clients. The appellant did not specifically address the township’s exercise of discretion.

[56] After considering the representations of the parties and the circumstances of this appeal, I find that the township did not err in its exercise of discretion with respect to its decision to deny access to the legal opinion under section 12 of the Act . I am satisfied that the township considered relevant factors in the exercise of its discretion. In particular, I am satisfied that the township weighed and considered the implications to the township if the legal opinion were disclosed as well as any public interest in disclosing it.

[57] Accordingly, I find that the township exercised its discretion in an appropriate manner in this appeal, and I uphold it.

ORDER:

I uphold the township’s decision and dismiss the appeal.

Original Signed By:		January 6, 2023
Anna Truong
Adjudicator