Canadian privacy & access decisions

The complainant alleged that the Department of Justice Canada (Justice) improperly withheld information under section 23 of the Access to Information Act. The request sought legal fees related to a specific litigation file. Justice claimed solicitor-client privilege over disbursements and details of expenses in a cost-recovery report, citing a presumption of privilege for lawyers' bills of account. The Information Commissioner acknowledged this presumption but found it rebutted in this case. The Commissioner determined there was no reasonable possibility that an inquirer could use the information to deduce privileged communications. Therefore, the Commissioner recommended that Justice disclose all information initially withheld under section 23. Justice agreed to implement the recommendation, and the complaint was found to be well founded.

• Whether the information consists of communication between a lawyer or notary and his or her client
• Whether the communication relates directly to the seeking or giving of legal advice
• Whether the parties intend the communication and advice to remain confidential
• Whether the information was prepared or gathered for the dominant purpose of litigation
• Whether the litigation is either in progress or is reasonably expected to occur
• Whether the presumption of privilege for lawyers' bills of account was rebutted
• Whether there was a reasonable possibility that an assiduous inquirer could use the information to deduce or otherwise acquire communications protected by privilege