Supreme Court of Canada sides with solicitor client privilege in freedom of information case

In a freedom of information decision released yesterday, the Supreme Court of Canada came down strongly (and unanimously) in support of solicitor client privilege as an almost absolute bar to disclosure under Ontario's freedom of information law:

Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII)

Rothstein J. (McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)

Access to information — Access to records — Exemption — Solicitor‑client privilege — Access to records for determination of whether they should be disclosed under Freedom of Information and Protection of Privacy Act — Whether records may be disclosed to requester’s counsel notwithstanding claim of solicitor‑client privilege — Whether Divisional Court bound by Act’s provisions prohibiting Commissioner from disclosing any records until final decision made — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 19.

A judge of the Divisional Court, who was reviewing a decision of the Ontario Information and Privacy Commissioner, granted the requester’s counsel access to records notwithstanding a claim of solicitor‑client privilege by the Ministry of Correctional Services. The judge treated the motion for access as one by the requester’s counsel, and not as one by the requester, in order to enable counsel to argue whether those records should be disclosed under the Freedom of Information and Protection of Privacy Act. The order for disclosure was made subject to a confidentiality undertaking. Panels of the Divisional Court and of the Ontario Court of Appeal upheld that decision and found that the judge had discretion to order disclosure.

Held: The appeal should be allowed.

Records subject to a claim of solicitor‑client privilege may be ordered disclosed only where absolutely necessary — a test just short of absolute prohibition. A different test is not justified for access to information cases. Here, the evidence revealed no such absolute necessity, and any records claimed to be subject to solicitor‑client privilege should not be disclosed. It is difficult to envisage circumstances where this test could be met if the sole purpose of disclosure is to facilitate argument by requester’s counsel on the question of whether privilege is properly claimed. While the principle of hearing from both sides of an issue is to be departed from only in exceptional cases, judges are well acquainted with privilege and well equipped to determine if a record is subject to it. [20‑25]

The procedural provisions of the Freedom of Information and Protection of Privacy Act apply to the Commissioner, not the courts which are bound rather by the legislation governing their procedures on judicial review. Since the provisions of the Act prohibiting the Commissioner from disclosing any records until a final decision is made are procedural, the matter of disclosure is accordingly left to the court’s discretion, subject to statutory or common law rules. Where no common law rule prescribes the manner in which to deal with records, the court must adopt a procedure which will protect the confidentiality of records until a substantive decision is made. [30‑32]

In this case, the judge of the Divisional Court considered the appropriateness of the confidentiality undertaking and that the integrity of counsel providing the undertaking had not been attacked. His approach was correct to the extent the records were not privileged and confidentiality had been claimed on some other basis. However, in the case of documents subject to solicitor‑client privilege, this approach was inappropriate unless the “absolute necessity” test was met. [33]