An adjudicator has upheld a decision taken by the Regional Municipality of Waterloo not to disclose certain records to a prominent lawyer about a complaint filed against him.
Toronto lawyer Murray Klippenstein filed a freedom of information request with the municipality asking for records related to a complaint that was made against him to the Law Society of Upper Canada.
The complaint, which was ultimately dismissed, was filed in 2014 after a legal dispute regarding control of an affordable housing provider in Kitchener, Ont., called the Sand Hills Co-op.
Klippenstein was retained as counsel by the co-op’s board in 2013 to review and potentially challenge a decision by the municipality to force out the board members. The lawyer asserted that the municipality was exceeding its legal authority and the removed board members then sought judicial review of the municipality’s decision to replace them. That application for judicial review would later be dismissed.
Klippenstein said that counsel retained by the municipality for the proceeding employed “dirty legal tactics” to knock him off the case and asked that costs be assessed against him personally. Klippenstein later removed himself from the matter.
A new lawyer for the co-op then made the complaint to the LSUC but Klippenstein said the new lawyer had no independent basis for the complaint, and that it was “entirely based on what the region had told him.”
Klippenstein says the complaint was very general and provided no documentation.
“[I]t seemed to me that a professional complaint might well be indirect payback arranged by municipal officials behind the scenes against a lawyer who had seriously challenged their legal authority on behalf of disadvantaged housing recipients whom the officials thought should simply be following their dictates,” he says. “So my information requests were exploring what I thought might be murky behind the scenes machinations.”
He requested all records that referred to the possibility of starting a LSUC complaint against him. The municipality found a number of emails from 2014 that were responsive to his request, but refused to release them to the lawyer, saying the records contained solicitor-client privileged information. So Klippenstein appealed to the Information and Privacy Commissioner of Ontario.
He argued that the municipality had failed to establish the exemptions it was relying on to deny his request, and that it had not demonstrated that it properly exercised its discretion in the matter.
He also argued that solicitor-client privilege did not apply to the records.
In a final order, Gillian Shaw, an adjudicator at the commission, found the municipality took the relevant factors into account when it decided not to disclose the records, and that it did not do so “in bad faith or for an improper purpose.”
In his representations, Klippenstein argued he was seeking accountability for what he viewed were tactics employed by the municipality to intimidate and punish him. The municipality argued the records could no longer be used in conjunction with the LSUC complaint, as it had been dismissed.
Shaw concluded that the municipality had not withheld the records to shield its alleged involvement in the complaint, and that it had properly exercised its discretion.
Imran Ahmad, a partner with Miller Thomson LLP who was not involved in the case, says the decision shows that access to personal information is not absolute.
“There are legitimate reasons why organizations can withhold [information],” he says.
Klippenstein says, meanwhile, this is likely the end of his efforts to access the records.
“I wanted to understand what had happened in this professional complaint because the complaint itself seemed spurious and bizarre,” he says.