Canadian privacy & access decisions

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.

• Whether the two-page printout generated from the iCase database was subject to solicitor-client privilege under s.23 ATIA
• Whether the two-page printout generated from the iCase database was subject to litigation privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to solicitor-client privilege under s.23 ATIA
• Whether the pleadings identified through the iCase database were subject to litigation privilege under s.23 ATIA
• Whether the identification of responsive records hinged on information subject to legal advice privilege
• Whether the identification of responsive records hinged on information subject to litigation privilege
• Whether populating the 'issues' field in iCase with 'GAAR' reveals privileged information
• Whether a list generated to identify publicly available records is subject to solicitor-client privilege
• Whether a list generated to identify publicly available records is subject to litigation privilege