Federal Court


Administrative Law

Freedom of information
Parts of discussion paper were subject to solicitor and client privilege

In 2006, Service Canada received access to information request from lawyer with Nova Scotia Legal Aid seeking variety of records related to Canada Pension Plan credit splitting. Request was transferred to Employment and Social Development Canada (ESDC). ESDC respondent to request but decided to exclude discussion paper from record on grounds that solicitor-client privilege exempted document pursuant to s. 23 of Access to Information Act (Can.). In 2008, lawyer complained to Office of Information Commissioner of Canada (OIC) about exemptions to his request. Discussions between OIC and ESDC led to disclosure of parts of discussion paper in 2014. ESDC maintained solicitor and client privilege over remaining parts of discussion paper. Lawyer authorized OIC to proceed with application for judicial review. At hearing, ESDC admitted that discussion paper had not been prepared by legal advisor. Application allowed in part. After reviewing discussion paper, court found that three parts remained subject to solicitor and client privilege. One of those parts contained policy advice stemming from legal opinions received by ESDC. Parties agreed that another part containing headnote should not be disclosed. Third part contained two sentences giving details about questions which were submitted to legal counsel and were privilege. Balance of discussion paper was to be disclosed.

Canada (Information Commissioner) v. Canada (Minister of Employment and Social Development) (Jan. 12, 2016, F.C., Michel Beaudry J., T-840-15) 262 A.C.W.S. (3d) 552.

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