Department of Justice Canada (Re), 2022 OIC 13
The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information related to cases filed with the Tax Court of Canada involving section 245 of the Income Tax Act. The request sought the name, file number, and pleadings of these cases. Justice initially provided a two-page printout and later, during the OIC's investigation, retrieved the full pleadings, exempting all information under section 23 (solicitor-client and litigation privilege) of the Access to Information Act. Justice argued that identifying the responsive records relied on privileged information in its iCase database, which contained legal counsel's views on potential legal issues. The Information Commissioner found that Justice failed to establish that the identification of these publicly available pleadings required legal advice or was subject to litigation privilege. The Commissioner concluded that the information used to generate the list was not privileged and that publicly available pleadings do not become privileged simply because they were identified through an internal, privileged system. The complaint was found to be well founded, and the Commissioner recommended full disclosure, but Justice refused to implement the recommendation.
- 1Whether the two-page printout generated from the iCase database was subject to solicitor-client privilege under s.23 ATIA
- 2Whether the two-page printout generated from the iCase database was subject to litigation privilege under s.23 ATIA
- 3Whether the pleadings identified through the iCase database were subject to solicitor-client privilege under s.23 ATIA
- 4Whether the pleadings identified through the iCase database were subject to litigation privilege under s.23 ATIA
- 5Whether the identification of responsive records hinged on information subject to legal advice privilege
- 6Whether the identification of responsive records hinged on information subject to litigation privilege
- 7Whether populating the 'issues' field in iCase with 'GAAR' reveals privileged information
- 8Whether a list generated to identify publicly available records is subject to solicitor-client privilege
- 9Whether a list generated to identify publicly available records is subject to litigation privilege
- Application of s.23: Exemption not justified for publicly available pleadings
- Identification of records: Process of identification does not create privilege
- Complaint outcome: Complaint well founded
- Disclosure of records: Full disclosure recommended
- Implementation of recommendation: Institution refused to implement
Complaint well founded — disclosure ordered, but institution refused to comply
The institution failed to demonstrate that the information, including publicly available court pleadings and the method of identifying them, met the criteria for solicitor-client or litigation privilege under section 23 of the ATIA. The Commissioner found that the identification of the records did not require legal advice and that the records themselves were not privileged.
The Commissioner recommended that the Department of Justice Canada disclose the responsive records in their entirety.
- s.23 ATIA
This summary is for informational purposes only and does not constitute legal advice.
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