The Court of Appeal upheld the Chambers judge’s ruling that the Information and Privacy Commissioner of British Columbia (the “Commissioner”) erred in law by failing to find that the release by the Legal Services Society (the “Respondent”) to a local newspaper reporter (the “Appellant”) of the names of the top five “billers” for immigration and criminal matters would breach solicitor-client privilege. The standard of review applied was one of correctness.

Administrative law – Freedom of information and protection of privacy – Disclosure – Public body – Legal Services Society – Solicitor-client privilege – Judicial review – Administrative decisions – Privacy commissioner – Standard of review – Correctness

Legal Services Society v. British Columbia (Information and Privacy Commissioner), [2003] B.C.J. No. 1093, British Columbia Court of Appeal, May 12, 2003, Newbury, Braidwood and Levine JJ.A.

The Appellant, a local newspaper reporter, requested from the Respondent, the Legal Services Society (“LSS”) a “list of 1998’s top five immigration billers [to the LSS] and the top five criminal billers by name and the amount billed”. Subsequently, she narrowed the time-frame of her request to nine months beginning April 1, 1998 to December 31, 1998. As the provincial body through which legal aid is administered, the LSS, is a “public body” for the purposes of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996 c.165 (the “Act”).

The LSS replied that it would disclose to her the amounts billed by the ten lawyers concerned but that it had decided not to release the names of the billers based on concerns relating to s.14 of the Act, which provides that “the head of a public body may refuse to disclose to an applicant information that is subject to solicitor-client privilege”.

The reporter sought a review of the LSS decision by Information and Privacy Commissioner of British Columbia (the “Commissioner”), and following a written inquiry, the Commissioner found that the information in dispute was not subject to solicitor-client privilege, LSS was not entitled to refuse access, and directed the head of the LSS to provide the reporter with such access.

LSS petitioned the Supreme Court of British Columbia for an order quashing the Commissioner’s order. Applying a standard of correctness, the Chambers judge asked whether granting access to the requested record would disclose any information, directly or indirectly, that was the subject of solicitor-client privilege. He agreed with LSS’s argument that a diligent reporter could piece together already-public information with the information sought by the reporter to determine the identity of legal aid clients. In the result, the Chambers Judge ruled that the Commissioner had erred in law in applying s.14 and quashed his decision.

On appeal, the Court considered the question of standard of review. The most important factor a court must consider in settling on a standard of review is the tribunal’s expertise. There is nothing to suggest that the Commissioner has particular expertise with respect to solicitor-client privilege or its protection – matters with which courts are very familiar. Nor does the Act provide the Commissioner with any “special procedure” for dealing with issues of solicitor-client privilege. The Commissioner simply receives evidence and submissions from the parties and assesses it to reach his conclusion. His method of proceeding may be described as similar to the judicial process. The problem before the Commissioner was not one that involved the “balancing” of a polycentric set of factors and interests. “Where the interest at stake is solicitor-client privilege – a principle of fundamental justice and civil right of supreme importance in Canadian law – the usual balancing exercise … is not particularly helpful ) [Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] S.C.J. No. 61]. Lavallee also shows that solicitor-client privilege is a matter of the common law, not of statutory interpretation. Indeed if s.14 had not been enacted, the same issue would have arisen in this case. The Commissioner’s expertise in interpreting the Act is therefore less important in this context than the court’s expertise in matters relating to privilege.

As Lavallee mandates, the privilege is to be maintained as close as possible to “absolute”, a standard of correctness must be applied to the Commissioner’s determination of whether the disclosure of particular information carries the potential to breach the privilege of clients funded by legal aid. A decision of the Commissioner which places solicitor-client privilege at risk is not acceptable, even if “reasonable”.

In the particular case, the Commissioner was incorrect in disregarding the possibility that an assiduous reporter who is aware of long proceedings in the public courts could easily put the information about the “top billers” together with the billing amounts and deduce that particular clients were funded by legal aid.

Finally, simply because the LSS already publishes annually the list of its major “suppliers of goods and services” in accordance with the Financial Information Act, there is nothing to say that disclosing the same kind of information for a shorter period would not increase the risk of breach of privilege. There is nothing to say that shorter periods – e.g., one month – will not be the subject of future requests, making it even easier to identify the legal aid clients. The real question is how and where to draw the line. If privilege must be retained as a right that is as close to “absolute” as possible, the line must be drawn on the side of protection of the privilege.

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