2019 NLSC 171, 2019 NLSC 171

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Legal Aid Commission (Re) , 2019 NLSC 171 Date : October 2, 2019 Docket : 201801G6062 In The Matter of an application by the Newfoundland and Labrador Legal Aid Commission pursuant to

section 50 of the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 Before: Justice David B. Orsborn Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: September 19, 2019

Summary: The Information and Privacy Commissioner recommended that the Legal Aid Commission disclose payments made to private practice lawyers and law firms in respect of representation of persons accused of murder, manslaughter or infanticide. Legal Aid applied for a declaration that the information was subject to solicitor-client privilege and was in any event personal information of the persons represented. Held : The application was dismissed subject to the removal of any amounts paid in respect of representation not yet completed.

While the information was presumptively privileged, the presumption was rebutted, the Court concluding that there was no reasonable possibility of the information leading directly or indirectly to the revelation of confidential communication. The information in question was personal information in the sense of disclosing information about the financial status of an accused – assuming that an accused could be identified from other information available. But in the circumstances, disclosure of the fact of legal aid representation was not considered to be an unreasonable invasion of privacy. Appearances:

Laura A. Brocklehurst Appearing on behalf of the Newfoundland and Labrador Legal Aid Commission Andrew A. Fitzgerald Appearing on behalf of the Information and Privacy Commissioner of Newfoundland and Labrador Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated HealthAuthority, 2015 NLTD(G) 183; Howley v. R., (SCC), [1927] S.C.R. 529; Descôteaux v. Mierzwinski, (SCC), [1982] 1 S.C.R. 860; Maranda v. Richer, 2003 SCC 67; Ontario (Attorney General) v.

Ontario (Assistant Information & PrivacyCommissioner) (2005), (ON CA), 251 D.L.R. (4th) 65, 197 O.A.C. 278, aff’g (ON SCDC), 239D.L.R. (4th) 704, 130 A.C.W.S. (3d) 438 (Ont. Sup. Ct. (Div. Ct.)); Cunningham v. Lilles, 2010 SCC 10; Kaiser, Re, 2012 ONCA 838;Newfoundland and Labrador (Information and Privacy Commissioner) v. College of the North Atlantic, 2013 NLTD(G) 185. STATUTES CONSIDERED: Legal Aid Act, RSNL 1990, c. L-11; Access to Information and Protection of Privacy Act, 2015, SNL2015, c. A-1.2.

REASONS FOR JUDGMENT Orsborn, J.: INTRODUCTION [1] This case concerns the application of the principle of solicitor-client privilege in the context of an access to informationrequest. [2] A requester asked the Newfoundland and Labrador Legal Aid Commission (“Legal Aid”) for information on the amounts paidby Legal Aid from 2008 to 2018 to lawyers in private practice to defend persons charged with murder, manslaughter, or infanticide. [3] Following an investigation by the Information and Privacy Commissioner (the “Commissioner”), the Commissionerrecommended the disclosure of the total amounts paid each year to identified lawyers or law firms and, in the case of five identifiedlawyers, the total paid to each in the ten-year period. [4] Legal Aid has applied for a declaration that it is not required to comply with the recommendations because the information issubject to solicitor-client privilege and is personal information of the individual clients.

ISSUEs [5] Is the information recommended for disclosure subject to solicitor-client privilege? If not, is it nonetheless personalinformation which is protected from disclosure? DISCUSSION Background [6] Prior to its repeal, a provision in the Legal Aid Act, RSNL 1990, c. L-11, enabled persons charged with specified offences toretain as defence counsel a lawyer in private practice: 31 …

(3.1) Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide, the applicant mayselect a solicitor employed by the commission or a solicitor in private practice in the province … [7] In 2015 – SN 2015, c. 11 – the above provision was amended:

(3.1) Where the application is for legal aid with respect to an offence of murder, manslaughter or infanticide, the applicant may select asolicitor

(

a) employed by the commission; or (

b) in private practice in the province whose name is on a panel established under

section 33. (3.2) Subsection (3.1) does not place an obligation on a solicitor in private practice to act for the applicant.

(3.3) Where a solicitor in private practice agrees to act for the applicant under subsection (3.1), he or she shall be paid at the tariff rate prescribed in the regulations. [ 8 ] If the applicant selected a solicitor in private practice, that solicitor would then be paid by Legal Aid. (The

section in question was repealed in 2018.) [ 9 ] On April 20, 2018, Legal Aid received an access to information request under the Access to Information and Protection of Privacy Act, 2015 , SNL 2015, c. A-1.2 (the “ Act ”) seeking: Invoices from and details of payments made to private lawyers/law firms hired for cases under Subsection 31(3.1) , (3.2) and 3.3 of the Legal Aid Act . Date range of the request is June 1, 2008, to present.

Please include name of lawyer/law firm and court file # and/or name of client for associated case. [ 10 ] Legal Aid refused the request, taking the position that the information was both privileged and personal information and could not be released.

It did, however, compile and provide aggregated de-identified information showing that, from June 1, 2008, to March 31, 2018, Legal Aid had paid just over $1.5 million to private practice lawyers pursuant to certificates issued under the above provision. [ 11 ] The requester asked the Commissioner to review Legal Aid’s refusal and on August 17, 2018, the Commissioner provided a written decision recommending that Legal Aid provide access to: 6. … the following records pertaining to payments made pursuant to s. 31(3.1) , (3.2) and (3.3) of the Legal Aid Act : (

i) the names of the lawyers that received payment from the Commission between 2008 and 2014, listing the aggregate amount each lawyer received from the Commission during each year of that period; (ii) the names of the law firms that received payment from the Commission between 2014 and April of 2018, listing the aggregate amount each law firm received from the Commission during each year of that period; and, (iii) the names of the five identified lawyers/firms that received payment from the Commission between 2008 and April 2018, listing only the aggregate amount each lawyer/firm received from the Commission for the entirety of that period. [ 12 ] In his decision, the Commissioner indicated that the rationale for recommendation (iii) was that there were five lawyers with far more limited involvement than the others and disclosure of the annual amounts could potentially lead to a disclosure of privileged communications.

The Responsive Records [ 13 ] Legal Aid compiled three documents in response to the recommendations. (The issue of a public body’s obligation to compile information as opposed to disclose a record was not raised before me.) [ 14 ] The responsive records consist of three pages, one in response to each recommendation. They were provided to the Court under seal. [ 15 ] Record No. 1 names twelve lawyers and shows, by year (2008-2014), the total amount paid to each lawyer in that year, together with the overall total paid to each. The record also shows the total paid to all twelve lawyers for each year.

The number of entries per lawyer – i.e. the number of years in which a particular lawyer was paid by Legal Aid in connection with one of the three offences – ranges from one to five. [ 16 ] Record No. 2 names eight law firms which received payments from 2014 to 2018. The format is the same as in Record No. 1. The number of entries per firm ranges from one to four. [ 17 ] Record No. 3 names five lawyers and shows the total amount paid by Legal Aid to each over the ten-year period 2008-2018.

[18] Legal Aid provided to each of the lawyers and law firms identified in the three records a copy of Legal Aid’s application to theCourt. No lawyer or law firm applied to intervene. One lawyer filed an affidavit stating that the client in question was not waiving anyprivilege. Statutory Provisions Relating to Solicitor-Client Privilege [19] Legal Aid is considered to be a public body for the purposes of the Act. Any privilege at issue in the circumstances of this caseis the privilege of a third party – the individual charged. Section 30(2) of the Act: 30.

(2) The head of a public body shall refuse to disclose to an applicant information that is subject to solicitor and client privilege orlitigation privilege of a person other than a public body. [20]

Section 58: 58. The solicitor and client privilege or litigation privilege of a record in dispute shall not be affected by disclosure to the Trial Division. [21] And on the matter of onus: 43.

(1) On an investigation of a complaint from a decision to refuse access to a record or part of a record, the burden is on the head of apublic body to prove that the applicant has no right of access to the record or part of the record. (See also subsection 50(5) and subsection 59(2) which effectively apply subsection 43(1) to proceedings seeking a declaration.) The Nature of Solicitor-Client Privilege [22] Much has been written about solicitor-client privilege. For a

summary of the general law surrounding the principle seeNewfoundland and Labrador (Information and Privacy Commissioner) v. Eastern Regional Integrated Health Authority, 2015 NLTD(G)183. [23] That

summary said, in part – at paragraph 24: 24 … 1. The privilege is defined by the classic formulation of John Henry Wigmore - adopted by the Supreme Court of Canada in 1927 inHowley [Howley v. R., (SCC), [1927] S.C.R. 529] (the gender-specific language is of course dated): [w]here legal advice of any kind is sought from a professional legal adviser, in his capacity as such, the communications relating to thatpurpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser,except the privilege be waived. 2.

The privilege belongs to the client and is a fundamental right as a matter of substantive law. 3. The primary rationale for the privilege is to enable full and candid communication between the solicitor and client so that theclient may obtain fully-informed and effective legal advice in order to exercise his or her legal rights in an informed manner. Anindividual’s right to obtain such advice promotes both access to justice and the efficiency of the adversarial process. 4. The necessary elements of a valid claim to privilege:

i) a communication between a solicitor, acting in his or her professional capacity, and the client; ii) the communication must entail the seeking or giving of legal advice, and iii) the communication must be intended to be confidential. [Citation added.]

[24] The wide scope of the privilege was summarized by Lamer C.J. in Descôteaux v. Mierzwinski, (SCC), [1982] 1S.C.R. 860, at paragraph 71: 71 In

summary, a lawyer’s client is entitled to have all communications made with a view to obtaining legal advice kept confidential.Whether communications are made to the lawyer himself or to employees, and whether they deal with matters of an administrativenature such as financial means or with the actual nature of the legal problem, all information which a person must provide in order toobtain legal advice and which is given in confidence for that purpose enjoys the privileges attached to confidentiality.

Thisconfidentiality attaches to all communications made within the framework of the solicitor-client relationship, which arises as soon as thepotential client takes the first steps, and consequently even before the formal retainer is established. [25] In Maranda v. Richer, 2003 SCC 67, LeBel J., speaking for the majority, said this at paragraph 32: 32 … As this Court observed in Mierzwinski, there may be widely varying aspects to a professional relationship between solicitor andclient. Issues relating to the calculation and payment of fees constitute an important element of that relationship for both parties.

The factthat such issues are present frequently necessitates a discussion of the nature of the services and the manner in which they will beperformed. … The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship andof what transpires within it.

That fact is connected to that relationship, and must be regarded, as a general rule, as one of its elements. [26] It was because of the potential for linking the financial or administrative information to communications of a confidential naturethat the court, erring on the side of protecting privileged communication, said at paragraph 33: 33 In law, when authorization is sought for a search of a lawyer's office, the fact consisting of the amount of the fees must be regarded,in itself, as information that is, as a general rule, protected by solicitor-client privilege.

While that presumption does not create a newcategory of privileged information, it will provide necessary guidance concerning the methods by which effect is given to solicitor-clientprivilege, which, it will be recalled, is a class privilege.

Because of the difficulties inherent in determining the extent to which theinformation contained in lawyers' bills of account is neutral information, and the importance of the constitutional values that disclosing itwould endanger, recognizing a presumption that such information falls prima facie within the privileged category will better ensure thatthe objectives of this time-honoured privilege are achieved.

That presumption is also more consistent with the aim of keepingimpairments of solicitor-client privilege to a minimum ... [27] Although written in the context of a challenge to the authorization of the search of a lawyer’s office, it is now accepted that thepresumption of privilege established in Maranda is not limited to such circumstances. [28] What level of information is required to raise the presumption? [29] It is clear that, as was the situation in Maranda, knowledge of the identity of the client and the lawyer will raise thepresumption of privilege over the amount of fees paid. [30] In Ontario (Attorney General) v.

Ontario (Assistant Information & Privacy Commissioner) (2005), (ONCA), 251 D.L.R. (4th) 65, 197 O.A.C. 278, (referred to as “Mitchinson”), the Court of Appeal considered two requests for information onthe legal fees paid to the lawyers acting in matters relating to the prosecution of Paul Bernardo. [31] The first request was for the total amount of legal fees paid – in the aggregate – to two intervenors in a related preliminaryinquiry. The court had ordered the Attorney General to pay the costs of the two intervenors.

The intervenors were identified in thedecision of the court below – (See Ontario (Attorney General) v. Ontario (Assistant Information & Privacy Commissioner) (2004), (ON SCDC), 239 D.L.R. (4th) 704, 130 A.C.W.S. (3d) 438 (Ont. Sup. Ct. (Div. Ct.)) at paragraph 4. The two lawyerswere not identified. [32] Of this request, Carnwath J. of the Divisional Court – the lower court – said at paragraphs 48-49: 48 The material in this matter discloses the following: a.

The record sought to be disclosed is not being sought for the purpose of a criminal prosecution, but rather for publication toinform the public of the sums expended by the Ministry in the course of the prosecution of an accused person unrelated to theseproceedings. b. The record is a statement of the total amount of public funds paid by the Ministry to two lawyers for the legal servicesprovided to two persons during the prosecution of the accused. c. The record is a global amount.

There is no itemization of services rendered; no dates and times for services are shown; nobilling rates are shown; no individual account total is shown. The record reflects the total amount paid by the Ministry in aggregate formto two lawyers representing two different clients over a significant period of time in two separate proceedings. 49 Applying a contextual analysis, I find the information contained in the record sought to be disclosed to be neutral.

I find the recordnot to be a solicitor-client communication of a confidential nature made for the purpose of obtaining professional legal advice. … [33] From the comments of Carnwath J., it appears that he accepted that the information sought was presumptively privileged, but

that the privilege was rebutted. Accordingly, the information was not privileged. [34] The second request was for the amounts and dates of payments made to four lawyers who acted for Paul Bernardo on the appealfrom his conviction. Disclosure was ordered of the dates and total amount of each payment; it does not appear that a specific lawyer wasidentified with each payment – see paragraph 2 of the Court of Appeal decision. Of this request, Carnwath J. said, in the DivisionalCourt, at paragraphs 50-51: 50 The material before the Court discloses the following: a. The record at issue is a

summary of a number of invoices paid as legal fees and disbursements to four lawyersrepresenting an accused on his appeal. The record includes the date, invoice number and amount of several invoices, as well as a sumtotal of the amount paid between May 26, 1997, and February 8, 2000. The record was created by Crown counsel using informationsupplied directly from the solicitor's statements of account, which had been submitted to Crown counsel in accordance with s. 684(2) ofthe Criminal Code for payment. b.

The record reflects the total amounts paid by the Ministry in aggregate form to four lawyers over a three-yearperiod. c. The record shows no itemization of services; discloses no billing rates; no individual account total is reflected onthe record; it is not possible to ascertain any specific account billing from the content of the record. 51 Applying a contextual analysis, I find the information contained in the record sought to be disclosed to be neutral.

I find therecord not to be a solicitor-client communication of a confidential nature made for the purpose of obtaining professional legal advice. … [35] On appeal, the Court of Appeal expressed at paragraph 9 of its decision “substantial agreement with the reasons of CarnwathJ.”. It went on to accept the starting proposition that the amount of fees is presumptively privileged. The privilege was presumed in bothcircumstances. [36] In the first case, the identity of the intervenors and of their respective lawyers was known, and only the aggregate combinedamount of fees sought.

In the second case, the identity of the client was known, the identity of the four lawyers could be easilyascertained; but, with respect to any given payment, the identity of the recipient lawyer was not disclosed. [37] In the present case, the responsive records identify the lawyers and the amount paid annually to each. The clients are notidentified. [38] On their face, the records do not disclose enough information to raise a presumption of privilege. Absent the identity of theclients, the amount of fees paid to a lawyer does not run the risk of disclosing confidential information.

But, given the fundamental importance of the privilege, it is my view that the broader context must be considered, not only at the rebuttal phase ifthat is reached, but also when considering whether the information is such as to warrant the benefit of the presumption of privilege. [39] The records disclose the names of lawyers and law firms and the years of payment. The payments relate to the representation ofindividuals charged with either murder, manslaughter or infanticide. I will take judicial notice of the wealth of information that can beacquired through an internet search.

The charges of murder, manslaughter and infanticide are, while not uncommon in this jurisdiction,not daily occurrences. The trial and related proceedings and the corresponding court records are generally public. All this is to say that itis not unreasonable to conclude that one could, without much difficulty, link the name of a lawyer with the names of persons chargedwith one or other of the three offences during the years in question.

Accordingly, there is sufficient information available to warrantapplication of the presumption. [40] I appreciate that, where it is apparent that a lawyer represented more than one client on one or more of the charges in question –and perhaps depending on the timeframe involved – it may not be possible to determine if any particular payment was linked, in whole orin part, to any particular client.

However, this possibility of an inability to link a client to a particular payment does not persuade me thatthe presumption should not be applied to the totality of the responsive records. [41] Has the presumption been rebutted? In Mitchinson, the Court of Appeal set out the rebuttal inquiry – at paragraphs 11-12: 11 … The onus lies on the requester to rebut that presumption. 12 The presumption will be rebutted if there is no reasonable possibility that disclosure of the amount of the fees paid will directly orindirectly reveal any communication protected by the privilege.

In determining whether disclosure of the amount paid could compromisethe communications protected by the privilege, we adopt the approach in Legal Services Society (British Columbia) v. British Columbia(Information & Privacy Commissioner) (2003), 2003 BCCA 278 , 226 D.L.R. (4th) 20 (B.C. C.A.), at 43-44.

If there is areasonable possibility that the assiduous inquirer, aware of background information available to the public, could use the informationrequested concerning the amount of fees paid to deduce or otherwise acquire communications protected by the privilege, then theinformation is protected by the client/solicitor privilege and cannot be disclosed. If the requester satisfies the IPC that no such reasonable

possibility exists, information as to the amount of fees paid is properly characterized as neutral and disclosable without impinging on the client/solicitor privilege. ... [ 42 ] This passage indicates that the focus of the rebuttal analysis is on the reason for privilege – the protection of confidential information. In 2010, in Cunningham v.

Lilles , 2010 SCC 10 , the Supreme Court of Canada suggested that, in some circumstances, another line of inquiry may be appropriate when considering whether certain administrative information could be disclosed. [ 43 ] Cunningham dealt with the issue of the court’s authority to ask counsel for the reason behind a request to withdraw as counsel in a criminal matter. At issue was a withdrawal because of a cancellation of legal aid funding.

The solicitor-client privilege issue was raised as an impediment to disclosure of the fact of non-payment of fees or a withdrawal of funding. [ 44 ] It was in this context that Rothstein J., speaking for the court, said at paragraphs 29-30: 29 Counsel seeking to withdraw for non-payment of legal fees is a decidedly different context from a police search of counsel’s accounts and records. The most significant difference is the content of the information being disclosed.

The only information revealed by counsel seeking to withdraw is the sliver of information that the accused has not paid or will not be paying fees. It has not been explained how, in this case, this sliver of information could be prejudicial to the accused. Indeed, it is hard to see how this simple fact alone could be used against the accused on the merits of the criminal proceeding: it is unrelated to the information given by the client to the lawyer, and unrelated to the advice given by the lawyer to the client.

It would not be possible to infer from the bare fact of non-payment of fees any particular activities of the accused that pertain to the criminal charges against him. 30 To be sure, this is the case where non-payment of fees is not linked to the merits of the matter and disclosure of non-payment will not cause prejudice to the accused. However, in other legal contexts, payment or non-payment of fees may be relevant to the merits of the case, for example, in a family law dispute where support payments are at issue and a client is alleging inability to pay.

Or disclosure of non-payment of fees may cause prejudice to the client, for example, where the opposing party may be prompted to bring a motion for security for costs after finding out that the other party is unable to pay its legal fees. Where payment or non-payment of fees is relevant to the merits of the case, or disclosure of such information may cause prejudice to the client, solicitor-client privilege may attach. [ 45 ] This passage refers to consideration of prejudice to the accused and the linkage, if any, of the information to the merits of the case.

It would seem to me that these considerations involve a somewhat different inquiry than one focused on the possibility of the disclosure of confidential information. [ 46 ] Rothstein J. summarized the position – at paragraph 31: 31 Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to privilege, such as the innocence at stake or public safety exceptions (see generally McClure and Smith v. Jones ).

Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place.

However, nothing in these reasons, which address the application, or non-application, of solicitor-client privilege in disclosures to a court, should be taken as affecting counsel’s ethical duty of confidentiality with respect to payment or non-payment of fees in other contexts. [ 47 ] I read this passage as adding another dimension to the rebuttal inquiry and emphasizing, in all cases, the importance of context. [ 48 ] A little over two years later in Kaiser, Re , 2012 ONCA 838 , Blair J.A. reviewed Maranda and Cunningham and, in the context of a bankruptcy proceeding, summarized the scope of the rebuttal analysis.

He said at paragraphs 30-31: 30 From these developments in the jurisprudence I take the law to be that administrative information relating to the solicitor-client relationship — including the identity of the person paying the lawyer’s bills — is presumptively privileged. The presumption may be rebutted by evidence showing: (

a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications ( Maranda , at para. 34 and Ontario (Assistant Information and Privacy Commissioner) , at para. 9); or (

b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client ( Cunningham , at paras. 30-31 ). 31 I note that the “confidential communication” and the “merits/prejudice” lines of reasoning from Maranda and Cunningham , respectively, do not necessarily define the same body of information. The reason is that not all information a client tells his lawyer in confidence will be relevant to the merits of the case for which the lawyer is retained: see Descôteaux , at p. 877. [ 49 ] The requester did not seek to intervene in this application.

As noted previously, neither did any lawyer or law firm. No evidence was offered in support of the rebuttal analysis. [ 50 ] Subject to my later comments on ongoing litigation, in the circumstances of this application and applying the Cunningham analysis, there is nothing to suggest that disclosure would, for any particular client, reveal information connected to the merits of the case or would be prejudicial to the client.

One would expect that, in the circumstances of this application, an argument of prejudice or relevance to the merits of the case would be supported by evidence. [ 51 ] With respect to a rebuttal based on no reasonable possibility of disclosure of confidential information, my review of the authorities suggests that this analysis is informed by the inferences reasonably available to the Court from the overall circumstances rather than by evidence. Thus, although the onus is nominally on the requester, in practice, the matter is decided by the judge’s own assessment of the circumstances.

In effect, the judge is the informed “assiduous inquirer”. [ 52 ] For example, in Mitchinson , the court concluded – at paragraph 13:

13 We see no reasonable possibility that any client/solicitor communication could be revealed to anyone by the information that the IPC ordered disclosed pursuant to the two requests in issue on this appeal. The only thing that the assiduous reader could glean from the information would be a rough estimate of the total number of hours spent by the solicitors on behalf of their clients. In some circumstances, this information might somehow reveal client/solicitor communications. We see no realistic possibility that it can do so in this case.

For example, having regard to the information ordered disclosed in PO-1952, we see no possibility that an educated guess as to the amount of hours spent by the lawyers on the appeal could somehow reveal anything about the communications between Bernardo and his lawyers concerning the appeal. [ 53 ] I note the references to “we see no possibility”. [ 54 ] What of this case? [ 55 ] The ‘no reasonable possibility’ assessment is brought into sharpest focus when there is one lawyer, one identifiable client, and only one payment made, with the year of payment identified.

If the presumption may be rebutted in such a case, then the rebuttal would necessarily apply to more general cases – more clients – more payments – and more years. [ 56 ] If lawyer A (identified) receives X dollars (specified to be from Legal Aid) on account of representation of client B (identified) in year Z (specified), the amount X dollars is, as previously discussed, presumptively privileged. [ 57 ] Is there a reasonable possibility that disclosure of X “will directly or indirectly reveal any communication protected by the privilege”? [ 58 ] The inquirer can, by examination of the court records, gain insight into the progress of the matter and determine how much time the lawyer spent in court.

It is reasonable to assume that, by one means or another, the inquirer could perhaps become informed of the lawyer’s hourly rate, which rate, at least after 2015, would presumably be the tariff rate set in the publicly available regulations to the Legal Aid Act . Armed with the hourly rate, the inquirer may be able to develop – roughly – the amount of time spent by the lawyer outside the courtroom.

This may provide some indication of the lawyer’s level of preparation. [ 59 ] Assessing this circumstance as objectively as I can – from the perspective of the assiduous inquirer – I am unable to see a reasonable possibility that disclosure of the total amount paid in a year – without reference to specific invoices or dates of payment and without any breakdown between fees and disbursements – could directly or indirectly reveal any privileged communication. [ 60 ] Even if the inquirer were to reasonably infer that the level of effort paid for and expended was greater than would seem to be warranted by the proceedings as reflected in the court records, it would be speculation to conclude that such an inference could reasonably lead to the deduction of confidential communication. [ 61 ] To state it another way, I am satisfied that there is no reasonable possibility that disclosure of the amounts paid could lead, directly or indirectly, to the disclosure of privileged communication. [ 62 ] But is the situation any different if representation of a client is still continuing? [ 63 ] The responsive records indicate that the last year for which payments are shown is the Legal Aid fiscal year ending April 30, 2018.

It is a reasonable inference that the payments are for services rendered before that date. [ 64 ] There is no evidence on whether or not there is any continuing representation beyond April 30, 2018. I do note that the repealing legislation of the Legal Aid Act – S.N. 2018, c. 5, s. 1, in force March 12, 2018, protected any Legal Aid certificates previously issued in accordance with the repealed provisions. [ 65 ] I was not provided with any authority supporting the disclosure of legal costs – even on an aggregate basis – during the currency of litigation.

The authorities cited are to the contrary – see Maranda ; Kaiser . In Newfoundland and Labrador (Information and Privacy Commissioner) v. College of the North Atlantic , 2013 NLTD(G) 185, I said this at paragraphs 43-44: 43 Disclosing information on expenditures for legal services during the litigation for which the services were or are being provided poses a serious risk to the confidentiality that must attach to the communications between solicitor and client during those proceedings.

The fair conduct of litigation, while it relies on full disclosure of the substantive factual elements of the claim and dispute, also relies on the ongoing ability of the client to discuss confidentially with his or her solicitor matters such as resolution strategy, trial strategy, assessment of the case and the many other issues on which advice may be sought during litigation. 44 There is at least a possibility that disclosure for amounts paid for legal services could, in this context, reveal something of the confidential communications that are essential during litigation.

This possibility cannot be negated by any level of redaction. Even aggregating the total amount invoiced for services may allow the diligent inquirer to make inferences about CONA’s instructions to its solicitors; the simple expedient of making a similar request every month would lead to a greater possibility of making such inferences. [ 66 ] In the criminal context, rebuttal of the presumption of privilege requires the court to be satisfied that disclosure will not cause prejudice to the accused. The cases emphasize the importance of context in assessing the rebuttal of the presumption.

In the context of an ongoing criminal prosecution for murder, manslaughter or infanticide, the names of the accused and the name of counsel are available

to the public. There is a public record of and access to the proceedings. In that context, rebuttal of the presumption that disclosure of fees paid, even a year or more previously, reasonably may cause prejudice to the accused – through publicity or otherwise – will be difficult. [ 67 ] I am not satisfied that the presumption of privilege has been rebutted with respect to any payment made pursuant to Legal Aid certificates for representation in proceedings that have not yet been finally concluded. Personal Information [ 68 ] The responsive records in their present form do not disclose the names of any individual.

On its face, the information could not be considered to be personal information as defined by the Act . But, as I have already noted, given the information publicly available, it would not be difficult, at least in some cases, to ascertain the name of an individual who was being represented by a private practice lawyer paid by Legal Aid. In turn, the inference is made that the individual qualified for legal aid. The Act defines personal information. Part of that definition: 2.

In this Act … (u) "personal information" means recorded information about an identifiable individual, including … (vii) information about the individual's educational, financial, criminal or employment status or history, … [ 69 ] I am prepared to conclude – and it was not argued otherwise – that knowing that an individual qualified to receive legal aid allows an inference to be drawn about financial status and is thus personal information. [ 70 ] The disclosure of personal information is covered by subsection 40(1) of the Act : 40.

(1) The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy. [ 71 ]

Section 40 continues: 40. …

(4) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy where … (

c) the personal information relates to employment or educational history; … [ 72 ] I note that the presumption does not extend to financial or criminal status or history. [ 73 ] The Act goes on to address the assessment of an unreasonable invasion of privacy: 40. …

(5) In determining under subsections (1) and (4) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body shall consider all the relevant circumstances, including whether (

a) the disclosure is desirable for the purpose of subjecting the activities of the province or a public body to public scrutiny; …

(

e) the third party will be exposed unfairly to financial or other harm; (

f) the personal information has been supplied in confidence; … (

h) the disclosure may unfairly damage the reputation of a person referred to in the record requested by the applicant; … [ 74 ] I believe it is reasonable to conclude that any financial information given by an individual to Legal Aid for the purpose of determining qualification for legal aid would be supplied in confidence. [ 75 ] I do not consider that the “need for public scrutiny” supports disclosure. In the circumstances raised by this application, the amount of the expenditure – apart from the establishment of the hourly rate – is beyond the control of Legal Aid.

In other words, the amount of the payment would not allow any inference to be reasonably drawn about the conduct of Legal Aid as a public body. [ 76 ] But having said that, I am satisfied that, considering all of the relevant circumstances and context, disclosure of the fact that an individual is being represented by a lawyer in private practice who is being paid by Legal Aid is not an unreasonable invasion of that individual’s privacy. [ 77 ] I have reproduced earlier the relevant

section of the Legal Aid Act then in force. [ 78 ] The individual had the choice of using a lawyer employed by Legal Aid. Because it is common knowledge that such lawyers are in fact employed by Legal Aid, it would also be evident and known that the individual qualified for legal aid.

I fail to see how, simply by an individual’s choosing a lawyer in private practice, that choice creates a level of privacy such that disclosure of the fact of payment of that lawyer by Legal Aid would be regarded as an unreasonable invasion of the individual’s privacy. [ 79 ] The ability to retain a private lawyer was limited to circumstances in respect of three offences. Circumstances in respect of all other offences led to representation by a Legal Aid staff solicitor, with the corresponding public disclosure of that representation and the corollary fact of financial qualification for legal aid.

To suggest that knowledge of legal aid qualification and funding in respect only of the specified offences would represent an unreasonable invasion of the individual’s privacy creates an artificial distinction based simply on the three offences and the choice of the accused individual. [ 80 ] I am comfortable in concluding that disclosure – albeit indirect – of the personal information that an individual qualified for legal aid is not, in all of the relevant circumstances, an unreasonable invasion of that person’s privacy.

SUMMARY AND CONCLUSION [ 81 ] The responsive records are not subject to solicitor-client privilege except to the extent – if at all – that they reflect payments in respect of legal representation that has not yet been concluded and any applicable appeal periods not yet expired. Any such payments should be removed from the records before disclosure. [ 82 ] Subject to the foregoing, Legal Aid’s application for a declaration is dismissed. Each party will bear its own costs. [ 83 ] Legal Aid should forthwith provide notice of this decision to all lawyers and law firms identified in the responsive records. [ 84 ] Order accordingly. _____________________________ David B. Orsborn Justice