Administrative law – Freedom of information and protection of privacy – Disclosure – Privacy commissioner – Standing in judicial review – Statutory interpretation – Adjudication – Crown counsel – Definition – Crown litigation privilege – Solicitor-client privilege – Judicial review – Parties – Standard of review – Reasonableness – Correctness
Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner),  O.J. No. 3522, Ontario Superior Court of Justice, August 14, 2003, O’Driscoll, Lane and Kozak JJ.
CLO brought a preliminary motion seeking an Order declaring that Goodis did not have standing to participate in the judicial review of the Order and subsequent reconsideration decision and that he should be prohibited from making written or oral submissions on the application or, alternatively, prohibited from arguing that his decision was correct based on reasons other than those given by him in his reasons for decision. The CLO submitted that Goodis’ participation in the application would be inconsistent with a principled approach to the standing of an administrative tribunal on judicial review of its own decision.
The common position of all counsel was that whether a litigant has status and the nature of that status should be decided on the basis of the same pragmatic and functional approach designed by the Supreme Court of Canada for applications when the question is: what is the proper standard of review in a given case? The court considered the pragmatic and functional approach test as requiring a balancing of four factors:
(a) the statutory language,
(b) the nature of the tribunal,
(c) the purpose of the statute, and
(d) the nature of the problem before the tribunal.
The court concluded that the Commissioner was entitled to be a party on this judicial review application pursuant to section 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 which read:
For the purposes of an application for judicial review in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power, the person who is authorized to exercise the power may be a party to the application.
Although the court noted that there was a rule restricting the right of a tribunal to make submissions before the court articulated in Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69 et al (1986), 51 O.R. (2d) 481 (Div. Ct.), the court also noted that this rule is a rule of court rather than a rule of law and the extent of participation to be permitted to the board must depend on the circumstances of each case. The Commissioner’s participation and right to make submissions on a judicial review application would be best left to judicial discretion rather than to a set of hard and fast rules. This was, in part, because the court would never know who would appear on a given judicial review.
Accordingly, the motion launched by counsel for the CLO for an Order declaring that the Commissioner did not have standing on this judicial review application was dismissed.
The court proceeded to consider the merits of the judicial review. The issues for the court were whether the adjudicator erred in interpreting the section of the Freedom of Information and Protection of Privacy Act, R.S.O. c.F.31 relating to Crown litigation privilege as not applicable to exempt the records in question from disclosure, and whether the adjudicator erred in interpreting the section of the Act regarding the advice of a public servant as not applicable to exempt the records in question from disclosure.
The court reviewed the nature and the role of the CLO in providing for legal assistance for Jane Doe. The court accepted the CLO’s self-description as an “independent” law officer of the Crown. However, the court did not conclude that the CLO is Crown counsel as that phrase was used in section 19 of the Freedom of Information and Protection of Privacy Act. Rather, the court held that the CLO undertook to represent Jane Doe and therefore was providing her with legal representations for which she was the client. The CLO did not rely on the portion of section 19 which exempted disclosure of a record that was subject to solicitor/client privilege, at the judicial review. Section 19(b) of the Freedom of Information and Protection of Privacy Act reads as follows:
19. A head may refuse to disclose a record:
(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.
The CLO submitted that section 19(b) should apply to exempt certain remaining records at issue from disclosure to Jane Doe.
In considering whether the CLO fell within the definition of Crown counsel for the purposes of section 19(b), the court heard submissions that the CLO met the criteria for the imposition of fiduciary duties to the client. The court stated that in light of these considerations to read Crown counsel as including the CLO would mean that the legislature intended to deprive the clients and fiduciaries of the CLO of the right which every client of every other lawyer in Ontario possessed, namely access to information in the lawyer’s file not by discretionary decision, but as of right, subject only to very limited exceptions.
The court held that the CLO, when appointed to represent a minor, or as litigation guardian of, or lawyer for a minor, or in approving a settlement on behalf of a minor, does not act as Crown counsel and does not have the section 19, second branch, statutory privilege. The court went on to say that the same fiduciary requirements of loyalty, good faith and attention to the interests of her client, to the exclusion of her own, would preclude the CLO from invoking any right to withhold information from her client. If the CLO had the section 19 discretion to decide whether to disclose the file to the client or not, the ethical and legal obligations of the CLO would preclude any decision to withhold.
To stay current with the new case law and emerging legal issues in this area, subscribe here.