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Info Source Bulletin Number 30

Ministry of Correctional Services v. David Goodis, Jane Doe and Attorney General of Canada

Indexed as: Goodis v. Ontario (Ministry of Correctional Services)

File No.:	30820
Reference:	2006 SCC 31
Date of decision:	July 7, 2006
Before:	Rothstein J. (McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron J.J. concurring)
Sections of ATIA / PA:	N/A (however, s. 23 of ATIA similar to s. 19 of Freedom of Information and Protection of Privacy Act)
Other Statutes:	Freedom of Information and Protection of Privacy Act, R.S.O., 1990, c. F-31, ss. 1(a), (b), 19, 52(2), (3), (5), (6), (8), (13), 54(2), 55; Courts of Justice Act, R.S.O. 1990, c. 43, ss. 135(2); Judicial Review Procedures Act, R.S.O. 1990, c. J.1, ss. 2910, 10.

Abstract

Records subject to a claim of solicitor-client privilege may be ordered disclosed only in case of absolute necessity.
The absolute necessity test is short to absolute prohibition and has been met in limited circumstances only. Disclosure of records to the requester's counsel for the purpose of facilitating arguments on the issue of whether the privilege is properly claimed does not meet the absolute necessity test.
Disclosure of other records, not subject to a claim of solicitor-client privilege or judged as not privileged, should be subject to the discretion of the judge, with an objective to evaluate the appropriateness of confidentiality undertakings and ultimately to protect the confidentiality of those records until a substantive decision is made.

Issues

(1) Can records subject to the claim of solicitor-client privilege by the ministry of correctional service be accessed by the requester's counsel for the purpose of arguing whether they should be disclosed under the Freedom of Information and Protection of Privacy Act (the "FIPPA")?

(2) Is the divisional court of Ontario bound by the provision of the FIPPA?

Facts

This case concerns documents protected by section 19 of the FIPPA. The FIPPA is the privacy and access legislation of Ontario which provides a right of access to information under the control of the Ontario government and protects the privacy of individuals with respect to personal information held by the Ontario government. A request was made under the FIPPA for all records relating to allegations of sexual abuse of offenders by probation officers employed by the Ontario Ministry of Correctional Services (the "Ministry"). Although records were found by the Ministry, disclosure was refused on various grounds, one being solicitor-client privilege. The requester appealed the Ministry's decision to the Ontario Information and Privacy Commissioner, David Goodis, who ordered disclosure of the records. The Ministry moved to have the Commissioner's decision quashed by filing an application for judicial review in the Ontario Divisional Court. The documents were filed and sealed. Upon request, the judge ordered disclosure of the records to the requester's counsel, subject to a confidentiality undertaking. The decision was upheld by a panel of the Ontario Divisional Court and of the Ontario Court of Appeal which both found that the judge had jurisdiction to order disclosure of the records.

Decision

The appeal was allowed. The matter was remitted to the Divisional Court for re‑determination in accordance with the reasons provided.

Reasons

Issue 1: Can records subject to the Ministry of Correctional Service's claim of solicitor-client privilege be accessed by the requester's counsel for the purpose of arguing whether they should be disclosed under the FIPPA?

Section 19 of the FIPPA protects from disclosure a record that is subject to solicitor-client privilege or that was prepared by or for the Crown counsel for use in giving legal advice (privilege communication between solicitor and client) or in contemplation of or use in litigation (i.e. litigation privilege). The decision dealt solely with the legal advice privilege (privilege communications between solicitor and client) and not with the litigation privilege. The SCC has already pronounced itself on the circumstances in which communications between solicitor and client may not be disclosed and has, in Descôteaux, laid down a substantive rule providing that a judge must not interfere with the confidentiality of communications between solicitor and client except to the extent "absolutely necessary" in order to achieve the ends sought by the enabling legislation.^[1]The SCC's decision in Lavallée further emphasized the fundamental nature of the substantive rule. ^[2] As a result of these decisions, it became incumbent on a judge to apply the "absolute necessity" test when deciding an application for disclosure of records subject to solicitor-client privilege. More recently in McClure, the SCC declared that solicitor-client privilege had to 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.^[3] While in Fuda, the Divisional Court proceeded in a balancing of interests on a case-by case basis, the SCC's jurisprudence is categorical that such fact-specific balancing should not apply to records involving communications between solicitor and client.^[4] At issue before the Ontario Courts was also the argument of procedural fairness. The lower courts concluded that procedural fairness required disclosure of the records to the requester's counsel. The SCC disagreed with such conclusion. In Pritchard, the SCC pronounced itself on the issue and was of the view that privilege and procedural fairness can co-exist without being at the expense of each other.^[5]

The SCC has held that the test of "absolute necessity" was restrictive, short of an absolute prohibition. This test has been met in limited circumstances only, exemplifying its restrictive nature. In Solosky, it was concluded that privilege communications such as mail received by an inmate could be inspected to maintain the safety and security of the penitentiary.^[6] In McClure, it was held that privilege documents could be disclosed where there was a genuine danger of wrongful conviction because the information was not available from other sources and the accused could not otherwise raise a reasonable doubt as to his guilt.^[7] The Court found that disclosure of records to the requester's counsel for the purpose of facilitating arguments on the issue of whether the privilege is properly claimed did not meet the absolute necessity test. Judges are familiar with the notion of privilege and well equipped to determine whether a record is privilege. In the view of the Court, no evidence was presented to show the "absolute necessity" of disclosing records to the requester's counsel in the specific circumstances of the case at bar. Furthermore, the potential increase in the workload of the reviewing judge was argued to justify disclosure of records to the requester's counsel. The SCC held that increase in judicial workload or other administrative considerations did not make disclosure to the requester's counsel "absolutely necessary" for the purpose of arguing the judicial review application.

Thus, the SCC found no reason to justify the establishment of a new test for disclosure of records subject to a claim for solicitor-client privilege in an access to information case and found that the Ontario Courts had erred in permitting disclosure of the documents in the case at bar. The Court reiterated that "absolute necessity" was the appropriate test to apply to disclosure of documents for which a claim of solicitor-client privilege is made and that the evidence did not show that the test had been met.

Issue 2: Is the divisional court bound by the provision of the FIPPA?

The SCC disagreed with the Ministry's position that a court hearing a judicial review of the Commissioner's decision was bound by the provisions of the FIPPA prohibiting the Commissioner from disclosing any records until a final decision is made. After a textual analysis of the procedural provisions applicable to the Commissioner under the FIPPA (more specifically ss. 52(3), (4), (5), (13), 54(2) and s. 55, but also ss 52(6), 52(8)), the SCC could not find that they were also binding on the court hearing a judicial review. The court is bound by its own legislation governing court's procedures on judicial review, i.e. the Courts of Justice Act and the Judicial Review Justice Act, which provides power to the court to order the exclusion of the public from hearings or to order that documents filed before it be treated as confidential, sealed and not form part of the public record (it was done in the case at bar). While the SCC agreed with the Ministry's submission that a court sitting on a judicial review cannot and does not have more substantive decision-making powers than the Commissioner who's decision is being reviewed, it remains that the procedures of the court is governed by the provisions of the relevant statutes and rules applying to the court.

Considering that the procedural provisions of the FIPPA applicable to the Commissioner are not applicable to the court, the matter of disclosure is therefore left to the court's discretion and the court must adopt a procedure that will protect the confidentiality of records until a substantive decision is made. In light of such consideration, the SCC held that the approach taken by the reviewing judge, i.e. to demand a confidentiality undertaking from the requester's counsel would have been acceptable if the documents were not subject to solicitor-client privilege.

Therefore, the SCC concluded that disclosure to the requester's counsel of other records, found not subject to a claim of solicitor-client privilege or judged as not privileged, should, in an objective to protect the confidentiality until a substantive decision is made and in consideration of the appropriateness of confidentiality undertakings, be subject to the discretion of the judge.