The Information and Privacy Commissioner appealed the respondent’s determination that certain documents should not be released pursuant to a request for access to information on the basis the documents were privileged.

[2015] N.J. No. 423

2015 NLTD(G) 183

D. B. Orsborn J.

December 14, 2015

The respondent produced a large number of documents relating to the hospitalization of a now-deceased patient at an institution run by the respondent pursuant to a request for access to information made by the patient’s daughter. However, it refused to produce unredacted copies of a significant number of records on the basis they were protected from disclosure by either solicitor-client or litigation privilege. As permitted by the legislation then in force, the Information and Privacy Commissioner appealed the decision to withhold information directly to the Trial Division of the Newfoundland and Labrador Supreme Court.

The documents over which privilege was claimed included emails and attachments, briefing notes, and reporting notes generated by the respondent during the course of an ongoing dispute with the patient’s family. There had been a number of unpleasant interactions between the patient’s daughters and hospital staff during the patient’s hospitalization, resulting in the hospital limiting and then removing the visitation privileges of the two daughters. This dispute eventually led to litigation, which was commenced in 2012, in which the patient’s family sought an order setting aside all visitation restrictions and an order that the patient be moved to a different hospital. While that litigation was strictly speaking still ongoing, as no discontinuance had been filed, as the patient had subsequently passed away the relief sought was now moot.

Other than the names of internal and external counsel, and the public record documents in the 2012 litigation, the Court was given no evidence directed to the circumstances surrounding the creation of any document over which privilege was claimed. Under the relevant legislation, the onus to establish privilege rested with the respondent.

In coming to his decision with respect to which documents were protected by privilege, Mr. Justice Orsborn, formerly Chief Justice of the Supreme Court’s Trial Division, provides a thorough summary of the legal principles governing both solicitor-client privilege, also known as “legal advice” privilege, and litigation privilege.

Addressing first to the respondent’s claim that certain documents were protected by litigation privilege, Orsborn J. held the particular litigation that would initially attract litigation privilege had effectively ended. The fact that no formal discontinuance has been filed in the 2012 litigation did not change the fact that no steps had been taken in that litigation in over three years and the requested relief could no longer be granted. There was no evidence that related litigation was contemplated or likely. As a result all claims for litigation privilege failed.

Turning then to the claims for solicitor-client privilege, Orsborn J. noted that while requiring production of a document that is in fact and law privileged but has not been proven to be so was not an attractive option, in the absence of adequate evidence, privilege claims may well fail because, on an objective assessment, the factors of expectation of confidentiality and/or legal advice purpose have not been established.

Here, the lack of evidence of specific context and circumstances adduced by the respondent meant that some of the claims for privilege could not be substantiated, particularly as this was a case in which in-house counsel were involved, and where the issues related to the daily management and operation of a large hospital as well as to potential legal issues.

Orsborn J. went on to state that while he would assess each document separately, he could not assume that the purpose of a communication was to seek or give legal advice simply because a communication was to or from counsel, and it was less likely that was the purpose where a communication was simply copied to counsel. Unless the content and context of a document clearly established otherwise, he did not consider internally-generated documents to be privileged. He went on to provide a schedule enumerating which documents he found had met the criteria for solicitor-client privilege and could be properly withheld.