A litigant’s records with respect to total legal costs amid ongoing litigation are presumptively privileged and not disclosable under section 56 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996. The presumption is rebuttable upon the party requesting the information showing that an assiduous inquirer could not deduce, infer, or otherwise acquire privileged communications on the basis of the records requested.

Administrative law – Decisions reviewed – Privacy commissioner – Disclosure – Privilege – Judicial review – Standard of review – Correctness

British Columbia (Attorney General) v. British Columbia (Information and Privacy Commissioner), [2019] B.C.J. No. 1302, 2019 BCSC 1132, British Columbia Supreme Court, July 12, 2019, C.J. Ross J.

The Canadian Constitution Foundation (the “Respondent”) is a non-profit charitable foundation which supports litigants pursuing meritorious constitutional challenges to government action. The Respondent provided support to the plaintiffs in the Cambie Surgeries Corporation v. British Columbia (Attorney General) litigation, involving an allegation that certain sections of the Medicare Protection Act violate individuals’ charter rights. The Attorney General of British Columbia (the “Applicant”) is a named defendant in that action.

The Respondent made a request under section 56 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 for information concerning the Applicant’s total legal costs. At that time, the litigation had occupied 80 days of hearing time plus numerous interlocutory applications. The plaintiffs had not closed their case. The Office of the Information and Privacy Commissioner (the “Commissioner”) decided that the record at issue was subject to a rebuttable presumption of solicitor-client privilege, but that the presumption had been rebutted. The document at issue was ordered to be produced. It was decided that disclosure of the total amount of the Applicant’s legal fees would only confirm what was already in public record – that is, the Applicant had been vigorously defending the case. The Applicant applied for judicial review of that decision.

The Commissioner made submissions during the judicial review proceeding. The court clarified that the role of a tribunal in a proceeding for judicial review encompasses submissions with respect to the nature of the legislative scheme, the record of the proceeding, whether the petitioner should be permitted to raise a new issue in the judicial review, the standard of review, and the appropriate remedy. The court held that it falls outside of the scope of the role for a tribunal to make submissions about the extent to which the court is bound by its previous decisions, or to characterize different aspects of the tribunal’s decision as fact, factual inference, and mixed fact and law.

The standard of review for the Commissioner’s decision regarding solicitor-client privilege was correctness. The Respondent relied on the Court of Appeal Decision Donnell v GJB Enterprises Inc., 2012 BCCA 135, for its holding that in a civil context, ledgers merely recording payments in and out of a lawyer’s trust account are not presumptively privileged.

The court held, however, that the record at issue in the case at bar is a document to which the presumption of privilege applies, as the interim legal costs arose out of the solicitor-client relationship and what transpires within it, and reflected work done at the instruction of the client. The court further held that Donnell does not stand for the proposition that legal costs are not presumptively privileged, and that there is a well settled line of authority both prior and subsequent to Donnell holding that legal costs in civil proceedings are presumptively privileged.

The parties agreed that the presumption may be rebutted if it is established that there is no reasonable possibility that disclosure would directly or indirectly reveal privileged communications. The test for whether privileged communications could be revealed must be considered from the perspective of whether an assiduous inquirer could deduce, infer, or otherwise acquire privileged communications. The fact that litigation is ongoing is an important factor to be considered in that determination. The burden was on the Respondent to rebut the presumption of privilege by showing that there is no reasonable possibility that disclosure of the amount of the fees paid would directly or indirectly reveal any communication protected by privilege.

The court held that the presumption was not rebutted. An assiduous inquirer, aware of the litigation background available to the public, including how many court days had been occupied at trial and in chambers, the nature of those applications, the issues disclosed in the pleadings, and the stage of the litigation for the period covered by the request, would be able to draw inferences about matters of instruction to counsel, strategies being employed or contemplated, the likely involvement of experts, and the Province’s state of preparation by learning the legal cost of the litigation.

The record was subject to a rebuttable presumption of solicitor-client privilege, and the Respondent did not discharge its burden to rebut the presumption.

This case was digested by Mollie A. Clark, and first published in the LexisNexis®