The Board of Governors of the University of Calgary Applicant - v. -, 2019 ABQB 950

Court of Queen’s Bench of Alberta Citation: University of Calgary v Alberta (Information and Privacy Commissioner), 2019 ABQB 950 Date: 20191213 Docket: 1801 07259 Registry: Calgary Between: The Board of Governors of the University of Calgary Applicant - and - The Office of the Information and Privacy Commissioner and Anton N. Oleynik Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice Janice R. Ashcroft _______________________________________________________ I Overview [ 1 ] Dr.

Oleynik applied under the Freedom of Information process to the University of Calgary (“the University”) to disclose “legal bills” submitted to or paid by the University in respect of court actions in which Dr. Oleynik and the University were involved. The University responded by producing redacted invoices, and asserting privilege over the redacted information pursuant to section 27 (1) of the Freedom of Information and Protection of Privacy Act , RSA 2000 c F-25 (“ FOIPP Act ”). The University also supplied an affidavit sworn by its FOIPP Analyst.

The FOIPP Analyst swore that the “records are Statements of Account issued by external counsel to the University, the contents of which I believe and have been reliably informed by external counsel contain solicitor-client privileged information.” [ 2 ] A delegate of the Information and Privacy Commissioner (“the Adjudicator”) held that the University had failed to meet its onus to prove that the Applicant had no right of access to the records under section 71(1) of the FOIPP Act , and ordered that the redacted or withheld information be produced to Dr. Oleynik.

The University challenged the Adjudicator’s decision. [ 3 ] Respectfully, I find that the Adjudicator erred in holding that the University could not rely on the presumption of solicitor- client privilege regarding lawyers’ bills of account, to meet its onus pursuant to section 71(1) of the FOIPP Act . Accordingly, the Adjudicator erred in ordering the University to produce the records to Dr. Oleynik.

II Standing of the IPC [4] The issue of the Tribunal’s participation was raised by the University both in its brief and as a preliminary issue at thehearing. I decided the issue at the hearing but reserved the right to provide supplementary reasons. [5] The University submitted that the Information and Privacy Commissioner (“IPC”) should be restricted to arguing standard ofreview and answering questions regarding relevant provisions of the FOIPP Act: JK v Gowrishankar, 2019 ABCA 316 [Gowrishankar]The University emphasized that Dr.

Oleynik is an experienced and engaged litigant, that the decision was adjudicative in nature, and thatit is important to maintain the appearance of tribunal impartiality. The University also pointed to particular instances in the IPC’s briefwhich the University says constituted partisan advocacy, added new arguments and bootstrapped the Adjudicator’s decision.

TheUniversity argued that this type of advocacy compromises the fairness of the proceeding. [6] The IPC submitted that it should be given full standing, citing Children’s Lawyer for Ontario v Goodis, (ON CA), 2005 CarswellOnt 1419, 253 DLR (4th) 489, (Ont CA), [Goodis], Northwestern Utilities Ltd, Re (1978), (SCC), [1979] 1 SCR 684, 1978 CarswellAlta 141, CAIMAW v Paccar of Canada Ltd, (SCC), [1989] 2 SCR 983, 1989CarswellBC 174, and Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94, jurisprudencewhich ultimately culminated in Ontario (Energy Board) v Ontario Power Generation Inc, 2015 SCC 44 [Ontario Power].

In the latterdecision, the regulator in question was actually the appellant which meant that the regulator was a full party, and in effect, a directadversary in the proceedings. The IPC directed the Court to paras 59-72 in Ontario Power, emphasizing that the decision maker has alegitimate interest in upholding its decision and should be able to make arguments implicit to the decision, as well as respond to thearguments of the University. [7] Dr.

Oleynik stated that he does not have sufficient time or expertise to fully respond to the arguments of the University andsupports the Tribunal’s position that it should have full party status. [8] The extent of tribunal participation is determined on a discretionary basis by the court of first review: Ontario Power at para57.

The Court in Goodis at paragraphs 36-38 emphasized that the two most important considerations are fully informed adjudication andtribunal impartiality. [9] The IPC was allowed broad standing by the Supreme Court in Alberta (Information and Privacy Commissioner) vUniversity of Calgary 2016 SCC 53 [University of Calgary], a case which involved similar issues. Further, while Dr. Oleynik is anexperienced litigant, he does not have the knowledge and expertise necessary to fully address the issues in question.

Given the issues atstake in this judicial review, it is important that the Court have both sides of the argument to ensure the decision is fully informed. [10] However, that said, it is also important that the fairness of the proceedings and the neutrality of the IPC, both in perceptionand fact, be preserved.

The tone of the submissions made by the decision maker is a consideration, and I did find that the tone of certainwritten submissions made by the IPC fell into the category of partisan advocacy. [11] In the result, I allowed the IPC standing to speak to standard of review and to provide the Court with “helpful elucidation”concerning the

interpretation of its own home statute, to respond to the University’s arguments and to make submissions implicit to theAdjudicator’s decision:” Ontario Power at para 71. However, I held that the IPC must make these submissions only within the contextof its special knowledge, expertise, and policies and procedures. As well, the IPC was not allowed to make new arguments. III The Relevant Legislation and the Decision of theAdjudicator [12] The relevant provisions of the FOIPP Act include: 27(1) The head of a public body may refuse to disclose to an applicant (

a) information that is subject to any type of legal privilege, including solicitor-client privilege or parliamentary privilege, ... 71(1) If the inquiry relates to a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body toprove that the Applicant has no right of access to the record or part of the record. ... 72(2) If the inquiry relates to a decision to give or to refuse to give access to all or part of a record, the Commissioner may, by order, dothe following: (

a) require the head to give the applicant access to all or part of the record, if the Commissioner determines that the head is notauthorized or required to refuse access; (

b) either confirm the decision of the head or require the head to reconsider it, if the Commissioner determines that the head is authorizedto refuse access; (

c) require the head to refuse access to all or part of the record, if the Commissioner determines that the head is required to refuse access.

[13] In her decision, the Adjudicator first discussed Maranda v Richer, 2003 SCC 67 [Maranda], wherein the Supreme Court heldthat lawyers’ bills were presumptively privileged.

This presumption was found in circumstances where the Crown had executed a searchwarrant at a lawyer’s office seeking particular accounts between a client and the lawyer. [14] The Adjudicator then recognized the tension between section 71(1) of the FOIPP Act, which states the burden is on the publicbody to prove that the Applicant has no right of access, and the principle enunciated in Ontario (Ministry of the Attorney General) vOntario (Assistant Information and Privacy Commissioner), , 251 DLR (4th) 65 (Ont CA) [Ontario (Ministry of theAttorney General)].

The Court in Ontario (Ministry of the Attorney General) relied on Maranda to hold, at paragraph 11, that it is theapplicant or “requester” that must rebut the presumption that information in lawyers’ bills is solicitor-client privileged. [15] However, the Adjudicator ultimately minimized the impact of Maranda stating that, “A common law principle such as thatarticulated in Maranda and one which is not clearly applicable in a circumstance other than when the state is contemplating executing asearch warrant in a law office, cannot serve to supplant the clear statement of Legislative intent set out in section 71(1) – that a publicbody must prove its case”. [16] The Adjudicator stated that the University must provide clear, convincing and cogent evidence to discharge its burden ofproving that the discretionary exemption under s 27(1)(a) (a claim of solicitor-client privilege) applied.

The Adjudicator found that theevidence provided by the University was ambiguous, particularly in regard to whether all of the narrative information in the legal billswas subject to solicitor-client privilege. The Adjudicator noted that the University had not provided the records for her review, anaffidavit from a lawyer, or evidence sufficiently detailed to establish the privilege. [17] The Adjudicator also stated that as the records were not provided for her review, she could not apply the “assiduous inquirer”test.

As set out in Ontario (Ministry of the Attorney General) at para 12, the “assiduous inquirer test” requires there to be a reasonablepossibility that an assiduous inquirer, aware of background information available to the public, could use the information requestedconcerning the amount of fees paid, to deduce or to otherwise acquire communications protected by privilege.

If so, then the informationis protected and cannot be disclosed. [18] As the Adjudicator was not provided with evidence that, in her view, was sufficiently detailed to establish that the informationwithheld was likely to be non-neutral information that would reveal privileged communications, she ordered the production of therecords to Dr. Oleynik.

She also indicated that another option for the University was to judicially review her decision and have the Courtreview the records to determine whether they were solicitor-client privileged, citing Calgary (Police Service) v Alberta (Informationand Privacy Commissioner), 2017 ABQB 656, aff’d 2018 ABCA 114 [Calgary (Police Service)]. IV Issues [19] The issues are: What is the appropriate standard of review to apply to the decision of the Adjudicator?

Did the Adjudicator err,[1] in the context of a claim of solicitor-client privilege overlawyers’ bills of account, in holding that the University failed to discharge its onusunder section 71(1) of the FOIPP Act? V Submissions of the Parties [20] The University argues that the Adjudicator failed to apply the presumption of privilege which attaches to lawyers’ bills ofaccounts: Maranda. The University maintains that it asserted the privilege and complied with the protocol as set out in CanadianNatural Resources Limited v ShawCor Ltd, 2014 ABCA 289 [Shawcor].

The University claimed the specific privilege over the records,numbered the records and included a subject line, the heading of the law firm and the total amount billed on each invoice.

The Universitysays that the narrative portions of bills of account, which were redacted, are communications covered by solicitor-client privilege, citingStevens v Canada (Prime Minister), (FCA), 1998 CarswellNat 1051 at para 49, [1998] 4 FC 89 (FCA). [21] The University argues that the failure of the Adjudicator to recognize the Maranda presumption led the Adjudicator to furthererr by holding that the section 71(1) onus was not met by the presumption and the information provided by the University.

TheUniversity submits that section 71(1) does not contain the clear language required to override the presumptive solicitor-client privilegethat pertains to lawyers’ accounts. The University emphasizes that requiring it to produce additional evidence to support its claim ofsolicitor-client privilege unacceptably undermines the privilege. Rather, given the presumption, the onus to rebut the presumption wason the applicant, Dr. Oleynik. [22] The University also argues, in any event, that it did prove its claim to the extent it could, thus meeting any burden undersection 71.

The University also submits that the Adjudicator should have allowed the University an additional opportunity to providefurther information before ordering the production of the records. [23] Dr. Oleynik argues first that the University’s overall conduct is relevant to this judicial review. Dr. Oleynik says that theUniversity cannot use solicitor-client privilege to shield evidence of its own wrongdoing from disclosure. He says that the production ofthe legal bills may assist in determining whether there were potential violations of the Legal Profession Act, including overbilling.

Dr.Oleynik also maintains that the University has shown continuous disrespect to the IPC. For example, Dr. Oleynik says that theUniversity’s use of his personal information, namely his invalid address for service, prompted a recommendation from the IPC for theUniversity to establish certain policies to manage the risk of disclosure of personal information when addressing mail.

[ 24 ] Dr. Oleynik submits that the Adjudicator’s decision was not incorrect or unreasonable. Dr. Oleynik states that the Maranda principle is applicable to criminal cases, not civil cases citing Imperial Tobacco Co v Newfoundland and Labrador (Attorney General) , 2007 NLTD 172 , and that legal bills are only protected by privilege when they contain information regarding the content of communications between the lawyer and his client. Dr. Oleynik says that not all of the redacted parts of the legal bills contain these types of communications as opposed to statements of facts. Dr.

Oleynik argues that the University severed the court files or docket numbers from each of the bills as well as the dates that the services were rendered, and at least this information should have been released. [ 25 ] Dr. Oleynik submits that section 71(1) clearly states that the burden of proof justifying the withholding of the information is with the University. Dr. Oleynik points out that he is not in a position to rebut any presumption that the records are solicitor-client privileged without seeing the records and further, he cannot prove that the search for the records was thorough. Dr.

Oleynik emphasizes that on a policy basis the University, as a public institution, has an obligation to be transparent. [ 26 ] The IPC states that the purposes of the FOIPP Act , including rights of access and the duty of the head of a public body to assist applicants and to respond openly, accurately and completely, confirm the profound significance and broad scope of the freedom to information legislation. [ 27 ] The IPC submits that section 71(1) does not abrogate privilege.

Rather, section 71(1) places the evidentiary burden on the public body to prove that the individual has no right of access to a record and that the University may claim the exemption provision under section 27(1). If the public body does not meet this onus then

section 72 allows the compulsion of those documents. In the case of lawyers’ bills of account, the IPC states that section 71(1) of the FOIPP Act reflects a legislative prerogative to override the common law by statute. [ 28 ] The IPC also submits that the proper protocol if solicitor-client privilege remains at issue, is for the records to be produced to the Court. A Court review is a procedural safeguard which minimizes any risk that solicitor-client privilege will inadvertently be disclosed. VI Analysis A.

Standard of Review [ 29 ] The University argues that the standard of review, as to whether the statutory language in the FOIPP Act is sufficient to authorize the IPC to infringe solicitor-client privilege is correctness citing Alberta (Information and Privacy Commissioner) v University of Calgary , 2016 SCC 53 [ University of Calgary ] .

The University states that the Adjudicator herself has framed the issue in her decision as one involving section 27(1) of the FOIPP Act and as such the standard of review must be correctness: Alberta (Municipal Affairs) v Alberta (Information and Privacy Commissioner) , 2019 ABQB 436 at para 27 . [ 30 ] The University also submits that any

interpretation of common law principles related to the civil standard of proof, the Maranda presumption and the “assiduous inquirer” test within the legislative framework of the FOIPP Act , are intertwined with the larger issue in question, that of solicitor-client privilege. As such, correctness remains the appropriate standard. [ 31 ] Dr. Oleynik takes the position that the questions in issue are mixed questions of fact and law arising from an

interpretation of the Adjudicator’s home statute, and argues for a standard of review of reasonableness. [ 32 ] The IPC submits that different standards of review apply depending on the issue. The IPC states that with respect to the Adjudicator’s decision on whether the University failed to prove that the records were protected by solicitor-client privilege, and therefore subject to the exception from disclosure under section 27(1)(a), the standard of review is correctness. However, the IPC states that the question of a second issue argued by the University, namely “Did the IPC err in interpreting its authority?” is subject to a reasonableness standard as it engages the Adjudicator’s

interpretation of sections 71 and 72 of the FOIPP Act , its home statute. Lastly, the IPC states that any findings of fact should be reviewed on a standard of reasonableness. [ 33 ] In University of Calgary the Adjudicator had relied on a particular provision in the FOIPP Act as authority to order the production of records over which solicitor-client privilege had been asserted, and issue a Notice to Produce. The Supreme Court noted the importance of solicitor-client privilege as fundamental to the legal system and the Court’s traditional role in deciding issues of solicitor-client privilege.

The Court found that the proper standard of review of the Adjudicator’s decisions was correctness, as the questions were of central importance to the legal system as a whole and outside the expertise of the Adjudicator. [ 34 ] As in University of Calgary , the issue before me, although involving the

interpretation of a particular provision in the FOIPP Act , must be placed within the broader legal landscape of solicitor-client privilege. The question of whether the presumption of privilege with respect to lawyers’ bills of account applies, given the wording of

section 71 , is a question of central importance to the legal system as a whole and outside the Adjudicator’s specialized area of expertise. As such, it falls within that exception to the reasonableness standard outlined in Dunsmuir v New Brunswick, 2008 SCC 9 , and its progeny. [ 35 ] The standard of review to be applied to the Adjudicator’s decision is correctness. B.

Did the Adjudicator err, in the context of a claim of solicitor-client privilege over lawyers’ bills of account, in holding that the University failed to discharge its onus under section 71(1) of the FOIPP Act ? [ 36 ] Section 71(1) initially places the evidentiary onus on the University to justify withholding the records. However, that

evidentiary onus can be met in a number of ways, including the assertion of a common law presumption of privilege and provision ofinformation as set out in Shawcor. [37] The Court in Maranda found, albeit in a criminal context, that accounts as between solicitor and client were presumptivelysolicitor-client privileged at para 33: Because of the difficulties inherent in determining the extent to which the information contained in lawyers' bills of account is neutralinformation, and the importance of the constitutional values that disclosing it would endanger, recognizing a presumption that suchinformation falls prima facie within the privileged category will better ensure that the objectives of this time-honoured privilege areachieved. [38] In the recent case of British Columbia (Attorney General) v British Columbia (Information and Privacy Commissioner),2019 BCSC 1132 [British Columbia (Attorney General)], a request was made for access to records regarding the cost of litigation in aparticular case in which the government was involved.

The adjudicator held that the request was subject to a rebuttable presumption, thepresumption had been rebutted and the documents must be produced. On judicial review, the Court summarized the law on solicitors’accounts and the presumption of solicitor-client privilege and concluded at para 44 “There is a well settled line of authority in thisprovince both prior and subsequent to Donnell holding that legal costs in civil proceedings are presumptively privileged”.

In the result,the Court agreed with the Adjudicator that the accounts were presumptively privileged; however, the Court found that the Adjudicatorhad erred in holding that the applicant had discharged its onus to rebut the presumption. [39] In Gault Estate v Gault Estate, 2016 ABCA 208 at para 21 the Court relied on other Supreme Court jurisprudence andaccepted that the Maranda principle applied in the civil context: The case management judge did not have the benefit of Chambre des notaires du Québec and the companion case of Canada (NationalRevenue) v Thompson, 2016 SCC 21 .

Those decisions confirm that the amount and content of a lawyer’s accounts may revealprivileged information. Accordingly, there is a rebuttable presumption that the amount of fees paid is privileged. [40] The IPC and Dr.

Oleynik rely, to some extent, on Ontario (Ministry of the Attorney General) v Ontario (AssistantInformation and Privacy Commissioner), [2005] 251 DLR (4th) 65, (Ont CA) [Ontario (Assistant Information andPrivacy Commissioner)] and Chief of Police of the Calgary Police Service v Criminal Trial Lawyers’ Association, Information andPrivacy Commissioner et al (January 12, 2017), Calgary 1501-05251 (Alta QB) [Chief of Police of the Calgary Police Service], to arguethat the Maranda presumption should not be applied to the case at hand. [41] However, these cases are consistent with the position that lawyers’ bills of account are presumptively solicitor-clientprivileged.

The Court stated that the context in which the information is sought may be relevant but still chose to start from thepresumption that the information was privileged.

The presumption was rebutted as the Court held, in both cases, that when applying the“assiduous inquirer” test, there was no reasonable possibility that the disclosure of the total amount of the legal bill would lead todisclosure of solicitor-client privileged communications. [42] Solicitor and client privilege is all but absolute, in recognition of the high public interest in maintaining the confidentiality ofthe solicitor client relationship and the integrity of the administration of justice: Pritchard v Ontario (Human Rights Commission), 2004SCC 31 at paragraphs 17-18; Ontario (Public Safety and Security) v Criminal Lawyers’ Association), 2010 SCC 23 at para 53;University of Calgary at paras 34, 43.

The important interests at stake do not depend on whether the dispute arose in the civil, criminal oradministrative realm. In short, I find that the Maranda presumption applies in the civil, or access to information, context. [43] I also find that the wording in section 71(1) is not clear enough to exclude the presumptive privilege pertaining to solicitor’saccounts. [44] The decision in University of Calgary turned on whether the reference to privilege in section 56(3) was evidentiary orsubstantive.

Section 56(3) of the FOIPP Act states: Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 daysany record or a copy of any record required under subsection (1) or (2). [45] The Court found at para 2 that the wording in section 56(3) was still not sufficiently explicit to require the document beproduced: ...solicitor-client privilege cannot be set aside by inference but only by legislative language that is clear, explicit and unequivocal.

In thepresent case, the provision at issue does not meet this standard and therefore fails to evince clear and unambiguous legislative intent toset aside solicitor-client privilege. [46] As the Adjudicator failed to recognize that the common law presumption applied, she interpreted section 71(1) withoutappropriate context. The Adjudicator interpreted section 71(1) as the primacy provision, within which solicitor-client privilege needed tobe proven, regardless that it was lawyers’ bills of account.

The correct approach was to recognize that the evidentiary onus under s. 71(1)could be discharged through the information provided by the University as set out in Shawcor and the claiming of the presumption ofthe privilege. Indeed, the Adjudicator should have found that the evidentiary onus was so discharged. At this point, the burden shifted toDr.

Oleynik, as the applicant, to rebut the presumption through argument or other information. [47] The Court in British Columbia (Attorney General) provides a helpful illustration of how applying the proper onus, given thepresumption, is essential to the correct analysis: In my view it is important to keep the onus in the forefront. Given the presumption of privilege, there is no onus on the Ministry toestablish that there is a reasonable possibility that the Cambie Litigation legal costs would reveal anything about privilegedcommunications.

Nor is there an onus on the Ministry to establish some particular inference that could or would be drawn from the

disclosure. Rather, the onus is on CCF to establish through evidence or argument that there is no such reasonable possibility. (at para 58) [ 48 ] Dr. Oleynik points out that, in Maranda , the Crown had neither alleged nor proved that the information was not subject to solicitor-client privilege. In the case at hand, Dr.

Oleynik, in contrast, has alleged that some of the information is not solicitor-client privileged either because the privilege has been “falsely claimed” or because certain of the information, such as the lawyer’s fees charged for attendance on court dates, would not result in disclosure of solicitor client information. [ 49 ] An allegation that the University’s assertion of solicitor-client privilege is falsely made, as well as an argument that certain information, if disclosed, would not breach solicitor-client privilege, may be made in an attempt to rebut the presumption.

These arguments, however, were not considered by the Adjudicator as part of a rebuttal argument, or assessment under the “assiduous inquirer” test, as she incorrectly took the position that it was the University’s onus to prove the privilege. [ 50 ] The remarks of Hall J in Calgary (Police Service) emphasizing that solicitor-client privilege must be not just asserted but also proved, were not in the context of solicitor and client accounts, where a presumption applies.

Further, Justice Hall also stated that while the task of the Commissioner is to determine whether a claim of privilege has been made out, he added at paragraph 20 “...the Commissioner must apply the law respecting proof of privilege”. In the case at hand, applying the law regarding proof of privilege includes recognizing the presumption. [ 51 ] Respectfully, the Adjudicator erred in interpreting section 71(1) in failing to allow the University to meet its evidentiary onus through its claim of privilege, provision of information under Shawcor , and reliance on the presumption.

This led to her error in ordering that the records be produced to Dr. Oleynik. [ 52 ] The Adjudicator stated that if the University seeks judicial review of the Adjudicator’s order the University should provide the records for review to the Court. I am mindful that should there continue to be a dispute as to whether the lawyers’ bills of account contain solicitor client privileged information it is not appropriate for the Adjudicator to review the information over which privilege is claimed, given the risk that solicitor client privileged may be infringed.

The University cannot be compelled to provide privileged information to the Adjudicator in order to establish its privilege: Dorchak v Krupka , 1997 ABCA 89 , paragraphs 36-40 ; Shawcor paragraphs 42, 43, 54-56 . [ 53 ] However, I decline to make any direction to the University to provide the records for review to the Court. The Adjudicator erred in holding that the University could not rely on the presumptive privilege with respect to solicitor client accounts to discharge its evidentiary onus under s. 71(1).

The matter should be sent back to be considered within the lawful analytical framework before the Court considers exercising its supervisory jurisdiction to review the documents as established in Calgary (Police Service) v Alberta (Information and Privacy Commissioner ) , 2018 ABCA 114 . VII Conclusion [ 54 ] The Adjudicator’s decision is quashed and the matter is remitted back to the IPC for reassessment of Dr. Oleynik’s request in accordance with these reasons. [ 55 ] The question arises whether the matter should be reconsidered by the same or a different adjudicator.

The parties did not argue this point or ask me to consider the relevant factors as set out in Walton v Alberta (Securities Commission) , 2014 ABCA 273 . If the parties are unable to agree on whether the adjudicator should be the same or different, they may apply for directions. [ 56 ] Costs may also be spoken to, if necessary, within 45 days from the date of this decision. Heard on the 24 th and 25 th days of October, 2019. Dated at the City of Calgary, Alberta this 13 th day of December, 2019. Janice R. Ashcroft J.C.Q.B.A. Appearances: Michael D.A.

Ford, Q.C. and Jonathon Ward for The Board of Governors of the University of Calgary

Dr. Anton Oleynik, Self Represented Glenn Solomon, Q.C. Jensen Shawa Solomon Duguid for the Office of the Information and Privacy Commissioner