Ont. v. Cropley, (2004) 186 O.A.C. 187 (DC)

• Judge: Ferrier, Swinton and Linhares de Sousa, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 24, 2004
• Jurisdiction: Ontario
• Citations: (2004), 186 O.A.C. 187 (DC)

Ont. v. Cropley (2004), 186 O.A.C. 187 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MY.017

Ministry of Community and Social Services (applicant) v. Laurel Cropley, Adjudicator, and John Doe, Requester (respondent)

(527/02)

Indexed As: Ontario (Minister of Community and Social Services) v. Cropley et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Ferrier, Swinton and Linhares de Sousa, JJ.

May 3, 2004.

Summary:

On instructions from the Director of the Ministry of Community and Social Services, legal counsel prepared documents that in­cluded instructions and advice as to how and when default proceedings under s. 41 of the Family Responsibility and Support Arrears Enforcement Act should be commenced and how they were to proceed. John Doe re­quested those documents under the Freedom of Information and Protection of Privacy Act (FIPPA). The Ontario Information and Pri­vacy Commissioner ordered the Ministry to make full disclosure of the requested docu­ments after finding that the exemptions claimed by the Ministry under FIPPA did not apply. The Ministry applied for judicial review.

The Ontario Divisional Court allowed the application. The documents were exempt from disclosure under s. 19 of FIPPA on the grounds of common law solicitor-client privilege.

Crown - Topic 7203

Examination of public documents - Free­dom of information - Bars - Solicitor-client privilege (incl. Crown counsel) - On in­structions from the Director of the Ministry of Community and Social Services, legal counsel prepared documents that included instructions and advice as to how and when default proceedings under s. 41 of the Family Responsibility and Support Arrears Enforcement Act should be com­menced and how they were to proceed - The Ontario Divisional Court held that these documents were exempt from dis­closure under s. 19 of the Freedom of Information and Protection of Privacy Act on the grounds of common law solicitor-client privilege - Sharing the documents with enforcement officers and panel lawyers, all of whom were agents for the Director, did not terminate the solicitor-client privilege - See paragraphs 13 to 29.

Crown - Topic 7208

Examination of public documents - Free­dom of information - Bars - Advice by public servants - On instructions from the Director of the Ministry of Community and Social Services, legal counsel prepared documents that included instructions and advice as to how and when default pro­ceedings under s. 41 of the Family Re­sponsibility and Support Arrears En­forcement Act should be commenced and how they were to proceed - The Ontario Divisional Court held that these documents were not exempt under the following sections of the Freedom of Information and Protection of Privacy Act: 13(1) (advice or recommendations of a public servant, etc.); 14(1)(c) (investigative techniques and procedures used in law enforcement); and 18(1)(e) (information about negotiations) - See paragraph 12.

Crown - Topic 7209

Examination of public documents - Free­dom of information - Bars - Information re investigative techniques or harmful to law enforcement - [See Crown - Topic 7208 ].

Crown - Topic 7212

Examination of public documents - Free­dom of information - Bars - Prejudice to negotiations - [See Crown - Topic 7208 ].

Crown - Topic 7246

Examination of public documents - Free­dom of information - Judicial review and appeals - Standard of review - The Ontario Divisional Court reviewed the standards of review pertaining to different types of determinations by Ontario's Information and Privacy Commissioner - See para­graphs 7 to 11.

Evidence - Topic 4230

Witnesses - Privilege - Lawyer-client communications - General - [See Practice - Topic 4577 ].

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - At­torney-client communications - The On­tario Divisional Court stated that "The legal advice covered by solicitor-client privilege is not confined to a solicitor telling his or her client the law. The type of communication that is protected must be construed as broad in nature, including advice on what should be done, legally and practically." - See paragraph 22.

Cases Noticed:

Right to Life Association of Toronto and Area v. Metropolitan Toronto District Health Council et al. (1991), 53 O.A.C. 231; 86 D.L.R.(4th) 441 (Div. Ct.), refd to. [para. 7].

John Doe v. Information and Privacy Com­missioner (Ont.) (1993), 64 O.A.C. 248; 13 O.R.(3d) 767 (Div. Ct.), refd to. [para. 7].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 8].

Children's Lawyer for Ontario v. Goodis et al. (2003), 177 O.A.C. 1 (Div. Ct.), refd to. [para. 9].

Ontario (Children's Lawyer) v. Infor­mation and Privacy Commissioner (Ont.) - see Children's Lawyer for Ontario v. Goodis et al.

Ontario (Minister of Transportation) v. Cropley et al. (2004), 181 O.A.C. 171 (Div. Ct.), refd to. [para. 9].

Ontario (Minister of Transportation) v. Information and Privacy Commissioner (Ont.) - see Ontario (Minister of Trans­portation) v. Cropley et al.

Ontario (Minister of Labour) et al. v. Big Canoe (1999), 127 O.A.C. 173; 46 O.R.(3d) 395 (C.A.), refd to. [para. 9].

Information and Privacy Commissioner (Ont.) v. Ontario (Minister of Labour, Office of the Worker Advisor) - see Ontario (Minister of Labour) et al. v. Big Canoe.

Ontario (Minister of Northern Develop­ment and Mines) v. Information and Privacy Commissioner (Ont.) et al. (2004), 181 O.A.C. 251 (Div. Ct.), refd to. [para. 9].

Ontario (Attorney General) v. Big Canoe et al. (2001), 152 O.A.C. 145 (C.A.), affd. (2002), 167 O.A.C. 125; 220 D.L.R.(4th) 467; 62 O.R.(3d) 167 (C.A.), leave to appeal dismissed (2003), 319 N.R. 200 (S.C.C.), refd to. [paras. 10, 19].

Ontario (Attorney General) v. Information and Privacy Commissioner, Inquiry Of­ficer (Ont.) - see Ontario (Attorney Gen­eral) v. Big Canoe et al.

Legal Services Society (B.C.) v. Infor­mation and Privacy Commissioner (B.C.) et al. (2003), 182 B.C.A.C. 234; 300 W.A.C. 234 (C.A.), refd to. [para. 10].

McConnell, Hopkinson, Wilson and Ben­jamin v. Douglas Aircraft Co. of Canada Ltd. and O'Shea, [1980] 1 S.C.R. 245; 29 N.R. 109; 99 D.L.R.(3d) 385, refd to. [para. 11].

Balabel and Another v. Air India, [1988] 2 W.L.R. 1036 (C.A.), refd to. [para. 22].

Statutes Noticed:

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, sect. 33(1) [para. 14]; sect. 33(2) [para. 16]; sect. 35(2) [para. 14].

Counsel:

Anita Lyon, for the applicant;

John Higgins and William S. Challis, for the respondent.

This application was heard at Toronto, Ontario, on March 24, 2004, by Ferrier, Swinton and Linhares de Sousa, JJ., of the Ontario Divisional Court. de Sousa, JJ., delivered the following decision for the court on May 3, 2004.