BCSC upholds decision of the information and privacy commissioner denying assertions of privileges over certain documents

Administrative law – Decisions reviewed – Information and Privacy Commissioner – Disclosure of records – Freedom of information and protection of privacy – Judicial review – Standard of review – Correctness – Solicitor-client privilege – Litigation privilege – definition

Sechelt (District) v. British Columbia (Information and Privacy Commissioner), [2021] B.C.J. No. 2363, 2021 BCSC 2143, British Columbia Supreme Court, November 1, 2021, G.R.J. Gaul J.

The district of Sechelt claimed privilege over a number of documents relating to a ongoing litigation involving a 28-lot residential property development in Sechelt. One of the owners applied under the Freedom of Information and Privacy Act for disclosure of Sechelt’s files relating to the development. Sechelt withheld certain documents under FIPPA. The owner asked the Information and Privacy Commissioner to review Sechelt’s decision to withhold these documents.

The IPC adjudicator rendered her decision, indexed as 2019 BCIPC 40. The IPC held that many documents were covered by solicitor-client privilege or litigation privilege; however, communications with a third-party engineering firm were found to not serve as a channel of communication between the client and the solicitor or performed a function integral to the solicitor-client relationship. Therefore, the IPC ordered that these third-party communications be disclosed. The IPC also concluded that Sechelt had not provided sufficient evidence to establish that other communications between Sechelt and other third parties were not intended to be confidential.

On judicial review, the Court observed that its review was limited to the record before the IPC adjudicator and could not consider the merits of any subsequent claims for privilege advanced by Sechelt.

The standard of review was correctness. The question on judicial review was whether the adjudicator properly determined the scope of privilege with the answer having a significant impact on the administration of justice.

The Court reviewed the documents where Sechelt claimed privilege. The Court held that the communications between a third-party engineering firm were not protected by legal advice privilege or section 14 of FIPPA. The Court agreed that the IPC adjudicator correctly concluded that certain documents met the criteria for litigation privilege while others did not. Some of these records included communications with an insurer were created for the dominant purpose of preparing for litigation.

The Court held that the IPC adjudicator correctly identified the issues and applicable legal principles. Following this assessment, the Court held that the adjudicator correctly evaluated the submissions and evidence before her and correctly applied the relevant principles of law. Sechelt’s petition was dismissed.

This case was digested by Jackson C. Doyle, 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 Jackson C. Doyle at jdoyle@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.