Ministry of Attorney General’s legal costs defending Cambie Surgeries Corporation v. British Columbia (Attorney General) action protected from disclosure by solicitor-client privilege

Administrative law – Decisions reviewed – Privacy Commissioner – Freedom of information and protection of privacy – Production of records – Solicitor-client privilege – Public body – Judicial review – Appeals – Standard of review – Correctness

British Columbia (Attorney General) v. Canadian Constitution Foundation, [2020] B.C.J. No. 1316, 2020 BCCA 238, British Columbia Court of Appeal, August 21, 2020, D.C. Harris, G.J. Fitch and G.B. Butler JJ.A.

Canadian Constitution Foundation made a freedom of information request under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, for records regarding legal costs incurred by the Ministry of Attorney General defending the Cambie Surgeries Corporation v. British Columbia (Attorney General) action, a Charter challenge to provisions of the Medicare Protection Act, R.S.B.C. 1996, c. 286. The Attorney General refused to produce the requested records on the basis they were protected by solicitor-client privilege.

CCF requested a review of the Attorney General’s decision to the Information and Privacy Commissioner. The Commissioner determined the Attorney General’s legal costs were not protected by privilege, on the basis that disclosure would not reveal privileged communications.

The Attorney General applied for judicial review of the Commissioner’s decision. On judicial review, the chambers judge held information about legal costs was presumptively privileged, and the presumption of privilege had not been rebutted. In particular, CCF had failed to establish there was no reasonable possibility the amount would reveal anything about privileged communications.

On appeal, the Court of Appeal determined that the standard of review of a decision regarding whether disclosure would reveal solicitor-client communications is correctness. The Court held the chambers judge was correct in finding that CCF had the onus to establish there was no reasonable possibility of the request revealing solicitor-client communications, and CCF failed to discharge that onus. Solicitor-client privilege is a fundamental principle of our legal system. The Court stated “Its protection must be as close to absolute as possible.”

This case was digested by Joel A. Morris, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Joel A. Morris at jmorris@harpergrey.com.

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