PRIVACY |
Gauthier v. Canada (Minister of Justice)
T-653-02
2004 FC 655, Mosley J.
4/5/04
24 pp.
Judicial review of Department of Justice, Access to Information and Privacy Director's denial of applicant's request under Privacy Act (Act), s. 12 for disclosure of certain documents containing personal information pertaining to himself and his company, National Capital News--Disclosure denied primarily on grounds certain documents exempted from disclosure pursuant to Act, ss. 26 and 27--Applicant believing misrepresentations, inaccuracies therein responsible for denial of membership in Parliamentary Press Gallery-- Whether Minister's delegate erred in determining records in question exempt from disclosure to applicant due to solicitor-client privilege--Appropriate standard of review correctness --As solicitor-client privilege not defined in Privacy Act, s. 27, common law principles applied--Exceptions to solicitor-client privilege including communications between solicitor and client directed towards unlawful purpose, and waiver of privilege by client--Solicitor-client privilege as set out in Act, s. 27 includes both solicitor-client communications as well as litigation privilege--Review of exempted records revealing contain information involving solicitor-client advice or notes and recommendations prepared in contemplation of litigation (government's response to United Nations Human Rights Committee's decision applicant's right to receive, impart information unlawfully restricted and also in response to variety of other legal proceedings initiated by applicant)-- Records not containing advice directed towards unlawful purpose--Applicant also challenging solicitor-client privilege in absence of "owner" of privilege--Submitting Justice solicitors overstepping authority either by asserting privilege without client having claimed it, or by not giving client opportunity to determine if privilege would be waived-- Privilege belongs to client and can only be waived by client-- Here, client clearly Government of Canada as represented by Department of Justice--Applicant raising question of whether lawyer bound to inquire or consult with client about request for disclosure of solicitor-client privileged information and receive answer as to whether client will waive such privilege--No case authority provided on this point--Where client is government, certain difficulties in determining whether privilege waived--Such difficulties not leading to presumption solicitor of government acted without instructions from client and failed to keep client informed of ongoing developments in case, even where no explicit evidence of government having turned its mind to possibility of waiving privilege--Unless clear evidence to contrary, solicitor presumed to have relayed all information about particular case to client--Application allowed in part in so far as certain pages should not have been withheld--Privacy Act, R.S.C., 1985, c. P-21, ss. 12 (as am. by S.C. 2001, c. 27, s. 269), 26, 27.