Annual Report: 2002-2003

Background

An individual submitted a request for information concerning the amount of money that the Freshwater Fish Marketing Corporation (FFMC) had spent on its legal fees in dealing with a lawsuit and the amount of money that FFMC has set aside as a settlement in the lawsuit. All of the records were withheld under section 23 of the Act as falling within solicitor-client privilege. The requester complained about the response to the Information Commissioner.

During the course of the Information Commissioner's investigation, the complaint was narrowed to the disbursement records since there were no records relating to the amount of money that has been set aside for settlement purposes.

Legal Issue

Is information about fees and disbursements paid to lawyers subject to solicitor-client privilege? That was the issue in this case. The commissioner placed reliance on the decision of the Quebec Court of Appeal in Maranda v. Canada (Gendarmerie royale) which found that, for the purposes of solicitor-client privilege, the statement of fees paid to an attorney would constitute a "fact" rather than a "communication" and, as such, would not be covered by solicitor-client privilege.

However, the jurisprudence also indicates that specific breakdowns of fees and disbursements could give insight into legal tactics, advice or instruction moving such detail out of the category of "facts" and into that of solicitor-client "communication". Consequently, the commissioner asked FFMC to disclose the total amount of fees and disbursements only. Without prejudice to its position that even the total amount qualified for solicitor-client privilege, FFMC exercised its discretion as the client to disclose the total.

Lessons Learned

When applying and interpreting the solicitor-client exemption (section 23), it is important to bear in mind that, since the client is the Crown, and since the fees paid are public monies, there is a public interest in accountability which may not be present for other solicitor-client relationships. Thus, it is important to keep the scope of the privilege as narrow as possible by using the "facts" vs. "communication" distinction. As well, it is important to exercise the discretion in the exemption to maximize public accountability.