3216-01562 — Crown-Indigenous Relations and Northern Affairs Canada

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) had improperly withheld records related to land ownership and transactions on the Bruce/Saugeen Peninsula under section 23 (solicitor-client and litigation privilege). CIRNAC initially claimed solicitor-client privilege but later conceded this did not apply. The institution then argued litigation privilege, citing ongoing court cases. However, the Commissioner found CIRNAC failed to demonstrate that the records were created for the dominant purpose of litigation. The Commissioner recommended full disclosure, but CIRNAC refused to implement the recommendation.

• Applicability of section 23 (solicitor-client privilege)
• Applicability of section 23 (litigation privilege)
• Dominant purpose test for litigation privilege
• Institution's discretion to exercise privilege claims