2016 CanLII 79158 (ON IPC)

ORDER MO-3373
Appeal MA14-402-2

Toronto Police Services Board

November 3, 2016

Summary: The Toronto Police Services Board received a request under the Act for access to
the legal opinions from three named lawyers relating to the Police and Community Engagement
Review (PACER). The police denied access to the legal opinions on the basis of the exemption
in section 12 (solicitor-client privilege). In this order the adjudicator finds that the legal opinions
are covered by the solicitor-client communication privilege in section 12 of the Act, and that
privilege was not waived in the circumstances of this appeal.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act, R.S.O.
1990, c. M.56, as amended, section 12; Police Services Act, RSO 1990, c P15, sections 31 and
41.

Orders and Investigation Reports Considered: PO-3154, PO-3167, and MO-2945-I.

Cases Considered: Pitney Bowes of Canada Ltd. v. Canada, [2003] F.C.J. No. 311 (T.D.); R v.
Campbell [1999] 1 SCR 565; Solosky v. The Queen [1980] 1 S.C.R, 821.

OVERVIEW:

[1] The Toronto Police Services Board (the “police” or the “board”) received a
request under the Municipal Freedom of Information and Protection of Privacy Act (the
Act) for access to the legal opinions from three named lawyers, as well as the letter
from the police requesting the legal opinions. The request read:
 -2-

In the Police and Community Engagement Review (PACER) the Toronto

Police Service reported that it had consulted with three eminent lawyers,
all representing different legal scope and interests. …

Please provide me with the letter sent by the Toronto Police Service to the

2016 CanLII 79158 (ON IPC)

three lawyers requesting the legal opinions and please provide me with
copies of the three legal opinions.

[2] In response to the request, the police issued a decision denying access to the
responsive records pursuant to section 12 (solicitor-client privilege) of the Act.

[3] The appellant appealed the police’s decision to this office, and confirmed that he
was taking the position that any privilege that may have existed in the records was
waived as a result of the actions of the police.

[4] During mediation, the police confirmed that the three legal opinions were
commissioned by counsel on behalf of the Chief of Police (the chief) and the Toronto
Police Service in regards to the PACER project. The police confirm that the chief and the
police claim solicitor-client privilege over the content of the three opinions. In addition,
the police provided materials in support of their position, including email requests from
police counsel to the three lawyers for the opinions, and legal accounts received from
the three lawyers for the work done in preparing the opinions.

[5] Mediation did not resolve this appeal, and it was transferred to the adjudication
stage of the appeals process, where an adjudicator conducts a written inquiry under the
Act. I sought and received representations from the appellant and the police regarding
the application of the solicitor-client privilege exemption in section 12 of the Act. These
were shared in accordance with section 7 of this office’s Code of Procedure and Practice
Direction Number 7.

[6] In their representations, the police assert that there is no “letter sent by the
Toronto Police Service to the three lawyers requesting legal opinions”, other than the
emails provided to this office during mediation (and shared with the appellant during
the inquiry stage of the appeal process). The appellant accepts the police’s submissions
on this point. As a result, the only records remaining at issue are the legal opinions
prepared by the three named lawyers.

[7] In this order I find that the legal opinions are covered by the solicitor-client
communication privilege exemption in section 12 of the Act, and that privilege was not
waived in the circumstances of this appeal.
 -3-

RECORDS:

[8] The records at issue in this appeal are three legal opinions prepared by three
named lawyers. Each of the legal opinions was provided in two parts.

2016 CanLII 79158 (ON IPC)

DISCUSSION:

Solicitor-client privilege

[9] The sole issue in this appeal is whether the discretionary solicitor-client privilege
exemption at section 12 applies to the records.

[10] The police submit that section 12 of the Act applies to the records. Section
12 reads:

A head may refuse to disclose a record that is subject to

solicitor-client privilege or that was prepared by or for counsel employed
or retained by an institution for use in giving legal advice or in
contemplation of or for use in litigation.

[11] Section 12 contains two branches as described below. To rely on this

exemption, the police must establish that one or the other (or both) branches apply.

[12] Branch 1 derives from the first part of section 12, which permits the police to
refuse to disclose “a record that is subject to solicitor-client privilege”. This branch
applies to a record that is subject to common law “solicitor-client privilege.”

[13] Branch 2 derives from the second part of section 12 and it is a statutory
exemption that is available in the context of an institution’s counsel giving legal advice
or conducting litigation. The statutory exemption and common law privilege, although
not necessarily identical, exist for similar reasons.

Branch 1: common law privilege

[14] Branch 1 encompasses two heads of common-law privilege: (i) solicitor-client

communication privilege; and (ii) litigation privilege. In order for Branch 1 of section 12
to apply, the police must establish that one or the other, or both, of these heads of
privilege apply to the records at issue.1

1
Order PO-2538-R; Blank v. Canada (Minister of Justice) (2006), 270 D.L.R. (4th) 257 (S.C.C.) (also
reported at [2006] S.C.J. No. 39).
 -4-

Solicitor-client communication privilege

[15] Solicitor-client communication privilege protects direct communications of a

confidential nature between a solicitor and client, or their agents or employees, made
for the purpose of obtaining or giving professional legal advice.2

2016 CanLII 79158 (ON IPC)

[16] The rationale for this privilege is to ensure that a client may confide in his or her
lawyer on a legal matter without reservation.3

[17] The privilege applies to “a continuum of communications” between a solicitor and

client:

. . . Where information is passed by the solicitor or client to the other as

part of the continuum aimed at keeping both informed so that advice may
be sought and given as required, privilege will attach.4

[18] The privilege may also apply to the legal advisor’s working papers directly related
to seeking, formulating or giving legal advice.5

[19] Confidentiality is an essential component of the privilege. Therefore, the police

must demonstrate that the communication was made in confidence, either expressly or
by implication.6

Loss of privilege

Waiver

[20] Solicitor-client privilege may be waived. An express waiver of privilege will occur
where the holder of the privilege

 knows of the existence of the privilege, and

 voluntarily demonstrates an intention to waive the privilege.7

[21] An implied waiver of solicitor-client privilege may also occur where fairness
requires it and where some form of voluntary conduct by the privilege holder supports a
finding of an implied or objective intention to waive it.8

2
Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.).
3
Orders PO-2441, MO-2166 and MO-1925.
4
Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.).
5
Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27.
6
General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.).
7
S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.).
8
R. v. Youvarajah, 2011 ONCA 654 (CanLII) and Order MO-2945-I.
 -5-

[22] Generally, disclosure to outsiders of privileged information constitutes waiver of

privilege.9 However, waiver may not apply where the record is disclosed to another
party that has a common interest with the disclosing party.10

Branch 2: statutory privilege

2016 CanLII 79158 (ON IPC)

[23] Branch 2 is a statutory privilege that applies where the records were “prepared
by or for counsel employed or retained by an institution for use in giving legal advice or
in contemplation of or for use in litigation.” The statutory and common law privileges,
although not identical, exist for similar reasons.

Representations

The police’s initial representations

[24] The police submit that the records are clearly protected under the solicitor-client
communication privilege under both branches of section 12. The police state:

The opinions were sought by the chief for the purpose of obtaining legal
advice on questions of law from lawyers of diverse experience. Solicitor-
client relationships were formed with each of the three lawyers in
question, these lawyers produced legal opinions for the chief, invoices
were rendered by the lawyers, and those lawyers were paid for legal
services provided to the chief. … there is no question that the documents
were created for the purpose of conveying legal advice.

Indeed, [the appellant] seems to accept the correctness of this

conclusion, given that he rests his arguments on the question of waiver,
and not the idea that the opinions were not privileged ab initio.

[25] The police provided representations in support of their position that the chief is
entitled to claim solicitor-client privilege, as is anyone else in a solicitor-client
relationship. The police then reviewed the various responsibilities the chief has, and the
reasons why the chief may, in certain circumstances, seek legal advice from various
lawyers.

[26] The police then address the appellant’s position, as set out in his initial request
and his appeal letter, that any possible solicitor-client privilege that may have existed in
the legal opinions was waived by the police as a result of their actions. The police refer
the appellant’s apparent argument that, because the chief and the deputy chief made

9
J. Sopinka et al., The Law of Evidence in Canada at p. 669; Order P-1342, upheld on judicial review in
Ontario (Attorney General) v. Big Canoe, [1997] O.J. No. 4495 (Div. Ct.).
10
General Accident Assurance Co. v. Chrusz, cited above; Orders MO-1678 and PO-3167.
 -6-

reference to the opinions at a public meeting, any privilege over the opinions was
thereby waived. The police submit that this view is incorrect, and state:

The impromptu comments of the Chief and the [Deputy Chief], revealing,
at best, the “bottom line” of the opinions they received, could in no way

2016 CanLII 79158 (ON IPC)

amount to waiver, either express or implied, over opinions which the Chief
and [the board] have treated as confidential since they were received.

[27] In support of their position, the police refer to two previous orders of this office.
One is Order MO-2945-I, in which the Town of Aurora received a legal opinion and, for
purposes of transparency, released a four-page executive summary of the opinion to
the public. In that order, the adjudicator found that the town evidenced an intention to
make the summary public while at the same time maintaining solicitor-client privilege,
and that release of the summary was unlikely to disclose the entire contents of the legal
opinion itself. On this basis, the adjudicator determined that release of the summary did
not constitute waiver of privilege.

[28] The police also refer to Order MO-1172, where the adjudicator was satisfied that
disclosing a small portion of the “bottom line” of legal advice is sometimes necessary or
desirable for a public body to carry out its mandate and responsibilities, and does not
constitute waiver of solicitor-client privilege.

[29] The police submit that the same reasoning applies in this case; that the legal
opinions have always been treated as confidential and that comments revealing “at
best” the bottom line of the legal opinions cannot amount to express or implied waiver
of privilege.

The appellant’s initial representations

[30] The appellant begins by stating that the legal opinions sought are directly related
to “an extremely important public policy issue” regarding the practice of the police in
“engaging in carding, also known as community contacts or community engagement.”
The appellant refers to the fact that these issues have been “extensively” dealt with by
the police and examined by the media. The appellant’s position is that, in the creation
of public policy regarding police/citizen interactions, there should be “as much
transparency as possible.”

[31] With respect to the police’s claim of solicitor-client privilege for the three opinions
obtained on the legality of carding, the appellant asserts that such a broad claim of
privilege may not apply, given that the chief made the opinions available to members of
the Police Services Board for the purpose of creating public policy. The appellant
submits that, by sharing the opinions with the board, the chief placed the opinions into
the realm of public policy and, in effect, waived any claim to solicitor-client privilege.
 -7-

[32] With respect to waiver, the appellant advances two main arguments. First, he
submits that the chief waived privilege voluntarily. Second, he submits that the chief
waived privilege by implication.

[33] In support of his first argument, the appellant refers to a passage on privilege

2016 CanLII 79158 (ON IPC)

from the Law of Evidence in Canada,11 which states that a privilege-holder waives
privilege voluntarily if they disclose or consent to disclose “any material part of a
communication.” The appellant submits that in offering the “bottom line” of the legal
opinions in a public meeting, the chief voluntarily disclosed a “material part” of the
privileged communications in question.

[34] In addition to voluntarily waiving privilege, the appellant submits that the
principle of fairness allows for privilege to be waived by implication where a client’s
conduct reaches a certain point of disclosure. In support of his position, the appellant
notes that a client can waive privilege by directly raising legal advice in a pleading or
proceeding, thereby putting that legal advice in issue.12 In particular, the appellant
points to the Supreme Court of Canada’s (SCC) decision in R v Campbell, where the
RCMP relied on the advice of the Department of Justice in court to support its position
that its actions were in good faith. In deciding that the RCMP had waived privilege by
implication, Binnie J. wrote that the appellants were “entitled to have the bottom line of
that evidence corroborated.”13 The appellant acknowledges that the litigation context in
Campbell is different than the context in this appeal; however, he submits that it is a
strong indicator that the chief waived privilege by implication by sharing the bottom line
of the legal advice, especially because the police will ultimately rely on that advice as
support for certain actions and policies.

[35] In addition to his two main arguments on waiver, the appellant also suggests
that the two IPC Orders referred to in the police’s submissions are not binding on me
and that they should not be relied on as a basis for a decision on waiver in this case.

[36] The appellant provided an article with his submissions, which discusses Ebrahim
v Continental Precious Minerals 14 where the Ontario Superior Court of Justice held that
referring to the receipt of legal advice in an affidavit amounts to the waiver of privilege.
Again, the appellant acknowledges that the context of this appeal differs from the
litigation context but suggests that revealing the conclusions of a legal opinion in a
public meeting concerning public policy amounts to waiver of solicitor-client privilege.

[37] The appellant also submits that confidentiality is an essential element of solicitor-
client privilege. He refers to another passage on privilege in the Canadian Encyclopedic

11
(4th ed, 2014) at para 14.138.
12
[1999] 1 SCR 565 [Campbell]; Law of Evidence in Canada at para 14.146.
13
Campbell, ibid, at para 47.
14
Ebrahim v Continental Precious Minerals, 2012 ONSC 1123 (CanLii).
 -8-

Digest,15 which states, “… if the communication is intended to be revealed to a third

party, the element of confidentiality will be lacking ….” The appellant submits that the
confidentiality criteria is lacking in this case, because the chief intended to reveal part of
the privileged communications by sharing it in a public forum.

2016 CanLII 79158 (ON IPC)

[38] Finally, the appellant submits that the police will likely have to divulge the
contents of the legal opinions as soon as the first legal challenge to police actions
carried out in accordance with those opinions finds its way into an Ontario court.

The police’s reply representations

[39] The police maintain that the opinions are subject to solicitor-client privilege. They
also submit that no argument based on public policy, such as that advanced by the
appellant, can supplant that privilege. The police note that the appellant cites no
authority for the position that “in the creation of public policy matters, such a broad
claim [to solicitor-client privilege] may not apply.”

[40] On the topic of waiver, the police maintain that the chief did not waive privilege
with respect to the three opinions. In support of their position, the police discuss the
“common interest” exception to waiver and bottom line disclosure.

[41] The police acknowledge that disclosure of legal advice to a third party can be
evidence of an intention to waive privilege. However, the police take the position that
sharing privileged information between parties with a common, though not necessarily
identical, interest is not evidence of an intention to waive privilege.16

[42] The police refer to Order PO-3167, where a memorandum of law was prepared
by counsel with the Ministry of the Attorney General, and provided to Ontario’s Crown
Attorneys and the Ministry of Safety and Correctional Services, who then shared it with
the Commissioner of the Ontario Provincial Police and all Ontario Police Chiefs. The
adjudicator found that the common interest exception to waiver applied because, while
the interests and roles of the parties were not identical, they all “share[d] a common
interest in having a uniform understanding of the state of the law on the particular
point in issue, as well as a uniform approach to its administration…”17

[43] The police also point to provisions on the responsibilities of police services
boards and police chiefs in the Police Services Act18 as evidence of a common interest
between the board and the chief. In particular, section 31 of the Police Services Act
requires a board to direct the chief and monitor his/her performance, and to determine,
in consultation with the chief, the objectives and priorities for police services in the

15
“Barristers and Solicitors VIII.2” (Ontario) at para 171.
16
Order PO-3154.
17
Order PO-3167 at para 43.
18
RSO 1990, c P15.
 -9-

municipality. In addition, section 41 requires a police chief to administer the police force
and oversee its operation in accordance with the objectives, priorities and policies
established by the board.

[44] The police submit that the opinions were provided by the chief to the board at

2016 CanLII 79158 (ON IPC)

the board’s request with the understanding that there was a common interest in having
a uniform understanding of the state of the law and an approach to its administration.
As evidence of this understanding, the police provide a copy of internal correspondence
from the board to the chief regarding disclosure of the legal opinions by the chief to the
board. This document, which was signed by all board members, reads in part:

It would be extremely helpful to the [Board Subcommittee] to be able to

review those opinions and determine whether it requires any additional
legal advice on the matter.

The Board recognizes your concern that the three opinions you received
remain privileged and confidential […] The City Solicitor has advised the
Board that privilege can continue to apply to the opinions on the basis of
the application of a common interest privilege between the Board and the
Chief.

[45] In this same document, the board agrees that it will not voluntarily disclose the
opinions and will assert a common interest privilege in response to any request for
disclosure.

[46] The police therefore submit that, in light of the common interest shared between
the chief and the board, sharing the legal opinions with the board did not constitute
waiver of privilege.

[47] The police also confirm their position that sharing the crux of a legal opinion in a
public meeting is not indicative of an intention to waive privilege over the opinion in its
entirety. Rather, the police submit that in sharing the bottom line, the chief and deputy
chief intended to strike an appropriate balance between transparency in public policy
decision-making and ensuring that public officials have unfettered access to legal
advice.

[48] The police disagree with the appellant’s suggestion that previous orders of this
office need not be relied upon in this case. The police submit that decision-makers in
this office are entitled to rely on past decisions for guidance in assessing what will
constitute waiver. The police refer to a number of orders where disclosure of the crux
 - 10 -

of legal advice was not found to constitute waiver,19 and submit that the conduct of the
chief falls well below the conduct that the IPC has previously held to constitute waiver.

[49] The police assert that the appellant’s reliance on the SCC’s decision in Campbell
is misplaced. They state that the police in Campbell were found to have engaged in

2016 CanLII 79158 (ON IPC)

illegal conduct and the accused argued there had been an abuse of process and sought
to stay the proceedings. In resisting the requested remedy, the police testified that they
had acted in good faith having relied on advice from Crown Counsel. The legal advice
had been obtained specifically for the investigation at issue, and the police’s reliance on
that advice in asserting their good faith was explicit.

[50] In contrast, the police submit that the chief has never suggested that the legal
opinions at issue constitute a justification for the police’s community contacts policy.
The police also submit that the disclosure of the bottom line advice provided to the
chief cannot be taken to constitute reliance on that advice as a good faith basis for a
policing policy adopted by the board on a controversial issue that that board sought out
and received its own separate legal opinion on.

[51] Furthermore, the police state that the appellant’s assertion that the chief will rely
on the opinions as a good faith basis for his acts before Ontario courts sometime in the
future is pure speculation and is not grounds to set aside the privilege at this time.

[52] The police also note that the appellant’s representations focus on the high level
of public interest in the subject matter covered by the opinions. The police submit that
the significance of the issue giving rise to legal advice is irrelevant to the question of
whether privilege attaches.

Appellant’s sur-reply representations

[53] In his sur-reply representations, the appellant confirms that his four main
arguments are:

1) Solicitor-client privilege should not apply to legal advice given with respect
to the formulation and creation of public policy in areas of pressing public
interest such as carding;

2) The chief voluntarily waived privilege when he provided the three legal
opinions to a third party, the Toronto Police Services Board;

19
Namely, Orders MO-2222, MO-2929, and PO-2830. The police also refer to Orders MO-2945-I, MO-
1233, MO-1172 and MO-1991, where disclosure beyond the crux of legal advice was found not to
constitute waiver.
 - 11 -

3) The police voluntarily waived privilege when they disclosed the existence
of the opinions and their conclusions in public meetings and in the PACER
Report;

4) There was waiver by implication when the police raised the legal advice it

2016 CanLII 79158 (ON IPC)

had received in defence of its position that the practice of carding as
carried out by the police officers was legal and in support of its position as
to the appropriate policy response to carding by the chief and the board.

[54] The appellant provides extensive sur-reply representations in support of these

arguments. To the extent that they provide additional specific arguments, I review
them below.

Analysis and Findings

Does the solicitor-client privilege exemption apply to the records at issue?

[55] The police submit that the opinions are subject to solicitor-client privilege as they
were created in the context of a solicitor-client relationship for the purpose of conveying
confidential legal advice. The appellant asserts that the section 12 exemption should
not apply to legal advice given with respect to the formulation and creation of public
policy in areas of pressing public interest such as carding. He states that any such
privilege may not apply in these circumstances, given that the chief made the opinions
available to members of the board for the purposes of creating public policy, thereby
placing the opinions into the realm of public policy.

[56] The appellant’s sur-reply representations argue that the courts have either
limited the scope of the privilege or created exceptions to it based on public policy,
albeit in very limited circumstances, and argues that this is one of those cases which
ought to create an exception to the privilege. He states that considerations of public
interest and public policy are important here, and that the scope of a class privilege like
solicitor-client privilege is “shaped by the balance between the public interest in
maintaining the privilege and the public interest in access to information, whether it be
through the admission of relevant evidence in a court proceeding or through freedom of
information requests.”

[57] The appellant then refers to the decision in R. v. National Post20 which
considered whether a class privilege should be extended to journalists and their
confidential sources, and which found that there is a public interest in the “free flow of
accurate and pertinent information” and “[democratic] institutions and social justice will
suffer without [it].”

20
[2010] 1 S.C.R, 477.
 - 12 -

[58] The appellant then states that common law solicitor-client privilege “has its
origins in the administration of justice and the courts of law and the courts have not
always been willing to extend the privilege far beyond its origins.” He addresses the
cases cited by the police in support of their position about the sweeping extent of the
privilege, and argues that these cases are either distinguishable (as they arose in

2016 CanLII 79158 (ON IPC)

criminal or quasi-criminal contexts), or in the case of Solosky v. The Queen,21 support
his position in that:

[This case] is an example of how the courts are reluctant to extend the
solicitor-client privilege much beyond its origins in the administration of
justice and the courts of law. In that case, the court held that
correspondence between an inmate and his solicitor was not privileged
and could be opened in accordance with the applicable Penitentiary Act
regulations, illustrating where public interest can limit the scope of the
privilege. The court specifically rejected the notion that the privilege was
akin to a “rule of property.”

[59] The appellant argues that the current case is “distant from the origins of the
privilege.” He states:

[The chief] solicited the opinions in order to formulate policy in the area of
carding and to make the case for its policy to the Toronto Police Services
Board and to the public at large. The courts have either limited the scope
of the privilege (as in Solosky supra) or created exceptions to the privilege
based on public policy, albeit in very limited circumstances. The
appellant's position is that this is one of those cases to create an
exception to the privilege.

[60] I have considered the representations of the parties and reviewed the records at
issue in this appeal. I note that the records are clearly legal opinions provided by three
lawyers to their client.

[61] Based on the information before me, I find that the records at issue consist of
legal opinions prepared by three lawyers retained by the chief, for the purpose of
communicating confidential legal advice on questions of law relating to the practice of
“carding.” I am satisfied that the records are exempt from disclosure pursuant to the
solicitor-client communication exemption in section 12 of the Act, as they consist of
direct communications of a confidential nature between a solicitor and client, or their
agents or employees, made for the purpose of obtaining or giving professional legal
advice.

21
[1980] 1 S.C.R, 821.
 - 13 -

[62] I have considered the appellant’s representations, as well as the authorities he

cites, in support of his position that the solicitor-client privilege cannot apply to legal
advice given “with respect to the formulation and creation of public policy in areas of
pressing public interest such as carding.” I do not accept this position. The records at
issue in this appeal are legal opinions sought from three lawyers on questions of law.

2016 CanLII 79158 (ON IPC)

[63] Many decisions made by public bodies involve issues of public policy, and to
suggest that legal advice sought and received in these areas cannot qualify for solicitor-
client privilege is casting the net too broadly. I also note that the nature of the subject
matter (carding) clearly involves public policy matters, but also clearly engages legal
issues on which legal advice is reasonably sought, and which can be subject to solicitor-
client privilege.

[64] As a result, I am satisfied that the records at issue are solicitor-client privileged,
as they constitute legal opinions provided by three lawyers to their client for the
purpose of providing legal advice.

[65] I will now review the various arguments regarding whether the solicitor-client
privilege that existed was waived.

Was solicitor-client privilege waived?

[66] The appellant suggests two ways in which any solicitor-client privilege attaching
to the records at issue may have been waived. Each is discussed in turn, below.

1) Was solicitor-client privilege waived by the chief when he shared the

opinions with the board?

[67] After reviewing the circumstances and the representations of the parties, I find
that the actions of the chief in sharing the three legal opinions with the board did not
result in waiver of the privilege by the chief. I make this finding because I am satisfied
that, in circumstances, the chief and the board shared a common interest.

[68] Previous orders of this office have addressed the common interest as it relates to
possible waiver of privilege.

[69] In Order PO-3154, Adjudicator Steven Faughnan reviewed the case law
pertaining to a determination of whether the common interest exception to waiver of
privilege existed in that appeal.

[70] Adjudicator Faughnan articulated the following test:

 - 14 -

… the determination of the existence of a common interest to resist

waiver of a solicitor-client privilege under Branch 1, including the sharing
of a legal opinion, requires the following conditions:

(a) the information at issue must be inherently privileged in

2016 CanLII 79158 (ON IPC)

that it must have arisen in such a way that it meets the
definition of solicitor-client privilege under Branch 1 of
section 19(a)22 of the Act, and

(b) the parties who share that information must have a

“common interest”, but not necessarily [an] identical
interest.23

[71] Furthermore, as noted in Pitney Bowes of Canada Ltd v. Canada, the

determination of the existence of a common interest is highly fact-dependent.24 In
Order PO-3167, Adjudicator Donald Hale had to determine whether a legal
memorandum prepared by the Assistant Deputy Attorney General for the Assistant
Deputy Minister of the Ministry of Community Safety and Correctional Services and
Ontario Crown Attorneys was exempt under section 19 of the provincial Freedom of
Information and Protection of Privacy Act, despite the fact that the Assistant Deputy
Minister had subsequently distributed it to “All Chiefs of Police”. Adjudicator Hale first
found that a solicitor-client relationship existed between the Assistant Deputy Attorney
General and the Assistant Deputy Minister in connection with the memorandum. He
then considered whether the common interest exception to waiver of privilege applied
to the subsequent sharing of the memorandum with all Chiefs of Police. After reviewing
the authorities, including Pitney Bowes, cited above, Adjudicator Hale concluded that
the common interest exception to waiver of privilege applied:

In my view, these general principles apply equally in the circumstances of

this appeal. The interests of Crown Attorneys, the ministry, the OPP
Commissioner and municipal chiefs of police are not identical, and they
each play different roles in the administration of criminal justice as it
pertains to the subject matter of the memorandum. However, they all
share a common interest in having a uniform understanding of the state
of the law on the particular point in issue, as well as a uniform approach
to its administration as evidenced by the content of the memorandum
itself. The words “privileged and confidential” appearing on the face of the
memorandum indicate that it is to remain confidential as against others
who are not its intended recipients or beneficiaries. The common interest
shared by the recipients of the memorandum thus negates any waiver of

22
Section 19 is the provincial counterpart to section 12 of the Act.
23
See also Barclays Bank PLC v. Metcalfe and Mansfield , 2010 ONSC 5519, para 11.
24
[2003] F.C.J. No. 311 (T.D.), at para 18 [Pitney Bowes].
 - 15 -

the privilege that would otherwise have occurred by its disclosure to

persons or entities outside the solicitor-client relationship.

In summary, I find that the memorandum had its origin as a privileged

communication passing from the Assistant Deputy Attorney General on

2016 CanLII 79158 (ON IPC)

the one hand, to MAG Crown Attorneys and the ministry’s Assistant
Deputy Minister on the other. As such, it was a document which was
subject to solicitor-client communication privilege for the purposes of
section 19(a) from its inception.

Further, based on the context in which the document was provided to the
Chiefs of Police by the ministry’s Assistant Deputy Minister, there existed a
common interest in the confidential subject matter of the memorandum. I
find that they share a common interest in matters relating to law
enforcement and in the administration of justice generally. The
memorandum at issue in this appeal describes a confidential opinion
which was only shared with the Chiefs because of their common interest
with MAG and the ministry in law enforcement concerns. I find further
support for this finding in the fact that the memorandum itself states that
it may be shared with the police, but is otherwise privileged and
confidential, although this alone would not be determinative.

As a result of this finding of a common interest in the subject matter of

the record, I find that its disclosure to the Chiefs did not constitute a
waiver of the privilege that existed in the document. Accordingly, I
conclude that it remains subject to solicitor-client communication privilege
and is exempt from disclosure under section 19(a), on that basis.

[72] I agree with the two-step approach articulated in Order PO-3154 and applied in
Order PO-3167, and will apply it to the legal opinion before me.

1) Are the legal opinions privileged under Branch 1?

[73] I found above that the legal opinions provided by the three lawyers to the chief
are subject to solicitor-client communication privilege under Branch 1. The opinions are
communications from three lawyers to their client made for the purpose of providing
legal advice on a particular topic. I also find that the communications were
confidential.25

25
I address the issue of the sharing of the “bottom line” with others below; however, I reject the
appellant’s suggestion that the element of confidentiality was lacking in these circumstances because of
the chief’s public statements.
 - 16 -

2) Do the chief and the board share a common interest in the information contained in
the opinions?

[74] As noted above, the police acknowledge that disclosure of legal advice to a third
party can be evidence of an intention to waive privilege. However, the police take the

2016 CanLII 79158 (ON IPC)

position that sharing privileged information between parties with a common, though not
necessarily identical, interest is not evidence of an intention to waive privilege.26

[75] The police refer to Order PO-3167, discussed above, and refer to the
adjudicator’s finding that the common interest exception to waiver applied because,
while the interests and roles of the parties were not identical, they all “share[d] a
common interest in having a uniform understanding of the state of the law on the
particular point in issue, as well as a uniform approach to its administration…”27 The
police also point to provisions on the responsibilities of police services boards and police
chiefs in the Police Services Act28 as evidence of the common interest shared between
the board and the chief in areas regarding policing.

[76] In his sur-reply representations, the appellant argues that the common interest
exception does not apply in these circumstances, where the legal opinions were shared
by the chief with the board. The appellant reviews certain authorities which discuss the
common interest exception to waiver, and which he argues confirm that “it is more akin
to litigation privilege by providing a functional extension of the privilege for a limited
purpose and time in order to enable parties with a common goal to attempt to achieve
a favourable result.” He argues that extending the scope of the exception to the
circumstances of this appeal will “do nothing to foster the solicitor-client relationship but
will only serve here to deny access to information clearly relevant to matters of public
interest and policy making.” He then states:

The [board] does not share a common interest with [the chief] that would
permit reliance on the exception. While [the board] has a statutory
responsibility for the provision of adequate and effective police services in
Toronto, its role is very different from that of [the chief]. [The board] acts
as a quasi-legislative body which sets objective and priorities, establishes
policies and issues orders and directives to the Chief of Police. It is the
primary mechanism under the Police Services Act for holding the police
accountable to the communities it serves. As such it receives
representations and reports from a wide range of persons [including
community organizations, other interested parties, and the chief], all of
whom share an interest in adequate and effective policing. The [chief’s]
specific goal in obtaining the opinions was to justify its past practices of
carding and to support its own policy positions in that area. The [board]

26
Order PO-3154.
27
Order PO-3167 at para 43.
28
RSO 1990, c P15.
 - 17 -

did not share that specific goal. The [board’s] role is much broader,
encompassing both the operational needs of [the chief] and the interests
of the communities. The common interest exception does not apply to
[the board] in this context because, as a statutory decision maker, it
cannot be said to [share] an interest with the parties that make

2016 CanLII 79158 (ON IPC)

representations to it that would support the exception relied on by [the
chief]

[77] I have considered the parties’ representations and have reviewed the legal
opinions. I accept the submissions of the police regarding the responsibilities of police
services boards and police chiefs as set out in the Police Services Act. The board is
responsible for establishing and modifying objectives, priorities and policies for the
police. The chief is responsible for overseeing the police force’s operation in
accordance with the objectives, priorities and policies established by the board. In
respect of “carding”, and given their respective roles and responsibilities, both the chief
and the board share a common interest in having a uniform understanding of the state
of the law in this area including what is and is not legal.

[78] I also do not accept the appellant’s arguments regarding the reasons why the
legal opinions were sought. In the circumstances, I find that the legal opinions (which I
note were obtained from three different lawyers) were sought for the purpose of
determining the applicable law as it applies to carding practices. I find further support
for this decision in the copy of the correspondence from the board to the chief
regarding disclosure of the legal opinions by the chief to the board. As noted above,
this document, which was signed by all board members, confirms the understanding of
the board and the chief with respect to the sharing of the legal opinions between them.
The first two paragraphs read:

As you are aware, the Board subcommittee on the issue of street checks
is considering whether to seek legal advice on the legality of the conduct
of street checks and their consistency with the requirements of the
Canadian Charter of Rights and Freedoms and the Ontario Human Rights
Code.

The Board understands that you have obtained three legal opinions on
this matter. It would be extremely helpful to the Subcommittee to be able
to review those opinions and determine whether it requires and additional
legal advice on the matter.

[79] The remainder of the document sets out the board’s understanding of the
common interest it shares with the chief, and the board’s agreement that it will not
 - 18 -

voluntarily disclose these opinions to outside parties and will assert privilege in them.
The document is signed by all of the members of the board. 29

[80] In my view, this document supports the police’s submission that the legal
opinions were shared between the chief and board because of their common interest in

2016 CanLII 79158 (ON IPC)

having a uniform understanding of the state of the law in this area.

[81] As a result of this finding of a common interest in the subject matter of the
record, I find that its disclosure to board did not constitute a waiver by the chief of the
privilege that existed in the document.

2) Was solicitor-client privilege waived by the police (either expressly or by implication)

when they disclosed the existence of the opinions and their conclusions in public
meetings and in the PACER Report?

[82] As noted, the appellant asserts that any possible solicitor-client privilege that
may have existed in the legal opinions was waived by the police as a result of their
actions. The appellant submits that in offering the “bottom line” of the legal opinions in
a public meeting, the chief voluntarily disclosed a “material part” of the privileged
communications in question. The appellant also refers to the references to the legal
advice received from the lawyers as found in the PACER report in support of his position
that the privilege has been waived.

[83] The appellant also takes the position that the police implicitly waived any
privilege in the legal opinions when they raised the legal advice in defence of their
position that the practice of carding was legal and in support of their position as to the
appropriate policy response to carding by the chief and the board. He submits that the
principle of fairness allows for privilege to be waived by implication where a client’s
conduct reaches a certain point of disclosure.

[84] As noted above, throughout this appeal the police dispute the appellant’s
position. They state:

The impromptu comments of the Chief and the [Deputy Chief], revealing,
at best, the “bottom line” of the opinions they received, could in no way
amount to waiver, either express or implied, over opinions which the Chief
and [the police] have treated as confidential since they were received.

[85] The police also assert that sharing the crux of a legal opinion in a public meeting
is not indicative of an intention to waive privilege over the opinion in its entirety.
Rather, the police submit that in sharing the bottom line, the chief and deputy chief
intended to strike an appropriate balance between transparency in public policy

29
See also the portions of this document set out in paragraph 44 of this order.
 - 19 -

decision-making and ensuring that public officials have unfettered access to legal
advice. The police also refer to previous decisions of this office in support of their
position that disclosure of the “bottom-line” legal advice does not constitute waiver.
[86] In his sur-reply representations the appellant expands on his position that
fairness requires that the opinions be disclosed, and refers to the following reasons:

2016 CanLII 79158 (ON IPC)

(1) To maintain the integrity and transparency of the decision-making
process by the board on the creation of policy in the area of
carding.

(2) Because the chief publicly stated that he relied on the legal
opinions in formulating its own proposed policies on carding,
thereby putting its own state of mind and bona fides in issue.

The appellant states that this is analogous to the line of civil cases where
a party attempts to justify its actions or explain its state of mind by
reference to legal advice it received.

(3) Because the chief voluntarily provided the opinions to the board
and the board used the opinions to justify its stance on carding.

The appellant argues that he and many other community members,

organizations and agencies that made submissions and deputations to the
board on this issue are entitled to a “level playing field where all
information before the board for its consideration on this issue is made
public.” The appellant asserts that the chief has “in effect been allowed to
submit the opinions in private in order to advance its position before the
board without having to expose the opinions to public scrutiny and
without giving the other interested parties an opportunity to respond to
them.” He states that this is analogous to the situation in R. v. Campbell
where implied waiver was found where the Crown sought to rely on legal
advice to establish good faith but refused disclosure on the basis of
solicitor-client privilege.

[87] The appellant also states:

The Appellant not only relies on the public statements of the Deputy Chief
and the Chief as originally submitted but also the disclosure of the
opinions set out in the excerpt of the PACER Report …. Both the public
statements and the Executive Summary of the opinions contained in the
PACER Report amount to a material disclosure of the contents of the
opinions and go far beyond merely disclosing the existence of the opinions
or the fact that [the chief] had sought legal advice on the matter. The
Executive Summary in particular provided a detailed synopsis of the
 - 20 -

opinions. The IPC decisions relied on by [the chief] are distinguishable on

that basis. [The chief’s] position that disclosing “the crux of legal advice”
was necessary “to maintain a policy of transparency regarding information
relied upon it in the decision-making process” is ironic, given that the
obvious lack of transparency created by the … refusal to disclose the

2016 CanLII 79158 (ON IPC)

information at stake in this appeal. It is also important to note that the
ultimate decision-maker regarding carding policy was [the board] and not
[the chief].

Analysis/findings

[88] I have reviewed the legal opinions at issue in this appeal, as well as the
references to the “bottom-line” of the legal advice received, as set out both in specific
statements made by the chief and the deputy chief (referenced by the appellant) and in
the PACER Report. In the circumstances, I find that disclosing the “bottom-line” did not
constitute waiver of the three legal opinions by the police.

[89] To begin, I find that neither the chief nor the board intended to waive privilege
in the three legal opinions by their actions in releasing certain “bottom-line” information
from the opinions. The actions of the chief and the board, including the execution of
the document referenced above and signed by all board members when receiving the
opinions from the chief, evidence an intention to maintain privilege in the legal opinions
themselves, notwithstanding the actions by the chief and the board to disclose a
summary of the advice. Accordingly, I do not find that there has been any express
waiver of privilege.

[90] With respect to whether there has been a waiver of privilege other than by
express intention, S & K Processors is a decision setting out the common law test for
waiver of privilege. Order MO-2945-I summarizes the court’s position as follows:

[In that decision], the court recognized that “waiver may also occur in the
absence of an intention to waive, where fairness and consistency so
require.”30 The court referred to the proposition that “double elements are
predicated in every waiver — implied intention and the element of fairness
and consistency. In the cases where fairness has been held to require
implied waiver, there is always some manifestation of a voluntary
intention to waive the privilege at least to a limited extent. The law then
says that in fairness and consistency it must be entirely waived.”31

30
S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. (1983), 45 B.C.L.R. 218 (S.C.) [S &
K Processors].
31
Set out in Wigmore on Evidence, cited in S & K Processors at para. 10.
 - 21 -

Thus where there is no evidence of an express intention to waive, the

question is whether “fairness and consistency” requires a finding of
implied, or implicit, waiver.

[91] Order MO-2945-I went on to determine whether the disclosure of a four-page

2016 CanLII 79158 (ON IPC)

executive summary of a much longer legal opinion provided to the Town of Aurora
meant that the privilege in the legal opinion was waived. The adjudicator found that it
was not, and stated:

By its nature an executive summary is unlikely to disclose the entire

contents of the document it is intended to summarize. I have reviewed
the executive summary under discussion in this appeal. It is a four-page
document that: explains the purpose of the legal opinion that it
summarizes (namely, to provide an opinion on the town’s liability for legal
expenses relating to a defamation action); sets out a chronology of events
giving rise to the action and the town’s involvement in its funding;
provides a summary of the findings on the basis of which two specific
recommendations were made; and sets out those recommendations.
According to the town, the executive summary was specifically created to
provide public transparency while at the same time preserving
confidentiality in the full 28-page legal opinion.

I am satisfied that the disclosure of facts and key findings contained in the
much longer legal opinion that is represented by the release of the
executive summary can be described as “relatively minimal”.

I am also persuaded that the town’s attempt to provide transparency in

one aspect of its decision-making process, by soliciting the creation of and
publicly disclosing the executive summary of the privileged opinion, has
not resulted in any unfairness or inconsistency requiring a finding of
implied waiver. In its submissions the town focuses on the fact that the
defamation action at the heart of the facts in this appeal is a proceeding
between the former Mayor and third parties, and that the town is not
itself involved in litigation with the appellant or with the former Mayor.
The town submits that implied waiver has no application in circumstances
where the parties are not involved in litigation.

Courts have considered the notion of fairness as between parties to

litigation in considering whether implied waiver has been established. This
office has considered this question in the context of access to information
appeals and not only where the parties in an inquiry are also litigants in
court proceedings. On the facts, however, I do not see how the release
of the executive summary leads to a finding that fairness or consistency
requires disclosure of the records at issue.
 - 22 -

As indicated, the appellant submits that the town solicited the creation of
the executive summary “for the sole purpose of releasing it to the public
in order to tarnish [the former Mayor’s] good name.” The appellant
suggests that this is a kind of unfairness that can be remedied through
disclosure of the full legal opinion. The appellant also submits that it

2016 CanLII 79158 (ON IPC)

requires access to the information on which the legal opinion was based in
order to prove its suspicion that the town provided Law Firm 2 with
“misleading or incomplete information to intentionally skew the legal
opinion.”

I find that the appellant’s objections to the executive summary do not

raise the kind of unfairness that necessitates a finding of implied waiver,
with its consequent puncturing of the solicitor-client privilege. The
appellant’s assertions as to the motivations of the town are speculative
and provide an insubstantial basis for such a measure. As well, they are
very different from the kinds of circumstances the courts have taken into
account where implied waiver is found, such as litigants who wish to
“cherry-pick” privileged communications to gain an advantage, or where a
privileged communication has been put in issue in a proceeding.

The circumstances before me are more analogous to those in the above-

cited orders where the minimal release of information in a legal opinion,
which results in a measure of transparency about a public body’s
activities, does not support a conclusion that the solicitor-client privilege
no longer applies.

I find therefore that there has been no implied waiver of privilege.

[92] I agree with the approach taken to this issue found in Order MO-2945-I and
apply it to the circumstances of this appeal.

[93] As set out above, the appellant takes the position that the police implicitly
waived any privilege in the legal opinions when they raised the legal advice in defence
of their position that the practice of carding was legal and in support of their position as
to the appropriate policy response to carding by the chief and the board.

[94] I do not agree that the police implicitly waived privilege when they referred to
the legal opinions in the public meetings and in the PACER report.

[95] To begin, I find that the police obtained the legal opinions to “seek legal advice
on the legality of the conduct of street checks and their consistency with the
requirements of the Canadian Charter of Rights and Freedoms and the Ontario Human
Rights Code”, as set out in the document provided by the board to the chief when the
legal opinions were provided to the board. Although the police subsequently referenced
 - 23 -

the three legal opinions in the public meetings and in the PACER report, I note that the
three legal opinions were sought by the police on questions of law. The legal opinions
provide legal advice on questions of law from lawyers of diverse experience.
[96] Although I accept that the bottom-line legal advice contained in the three legal
opinions are referenced in some detail, particularly in the excerpts from the PACER

2016 CanLII 79158 (ON IPC)

report, I also note that although the PACER report refers to the legal advice it received
from the three lawyers, it summarizes this information in a general way in the relevant
portion of the report. Furthermore, as noted by the police in their representations, the
board sought out and received its own separate legal opinion. The representations
read:

The mere disclosure of the bottom line of legal advice provided to the
chief cannot be taken to constitute reliance on that advice as a good faith
basis for a policing policy adopted by the Board on an issue that has been
the subject of scrutiny, debate, and public consultation for over three
years, and on which the Board sought out and received its own separate
legal opinion. [emphasis added]

[97] I also note that one of the contributing authors of the PACER report is in-house
counsel for the police.

[98] Furthermore, I note that by its nature a summary is unlikely to disclose the
entire contents of the document it is intended to summarize, let alone three separate
opinions. I have reviewed the information contained in PACER report, for which the
summary of the legal portion consists of six pages. These six pages include an
identification of the legal issues, a background section and a brief summary. It then
identifies five specific legal issues and provides a one or two-paragraph summary of the
advice relating to each. The summary then provides a conclusion and, on the final
page, catalogues three main categories of “measures to reduce risk of harm occasioned
by data collection.”

[99] In contrast, as noted above, the records at issue are three legal opinions
prepared by three named lawyers of diverse experience. Each of the legal opinions was
provided in two parts and, combined, the number of pages total approximately 38. In
the circumstances, I find that the disclosure of the information found in the PACER
report, which summarizes certain findings in the three legal opinions, can be described
as “relatively minimal”.32

[100] The police have also referenced Order MO-1172 in support of their position. In
that order, in which the adjudicator rejected the argument that a public report’s
reference to a “small portion of the ‘bottom line’” of the advice contained in a legal
memorandum constituted waiver of privilege in the memorandum, the adjudicator

32
See orders MO-2500, MO-2573-I and MO-1233.
 - 24 -

noted that public disclosure of such information may often be necessary in the interests
of transparency:

In my view, it is often necessary or desirable for a public body to refer to

the crux of the advice its solicitors provide to it in order to carry out its

2016 CanLII 79158 (ON IPC)

mandate and responsibilities. In many cases, the public body will intend to
retain the privilege, while at the same time provide a minimal degree of
public disclosure to ensure the proper discharge of its functions. In the
usual case, this should not of itself constitute express waiver of the
privilege attaching to the underlying solicitor-client communication …

This is not to say that an institution can never be found to have waived
solicitor-client privilege by partial disclosure of a privileged document.
Rather, in determining this issue, a decision-maker must be cognizant of
the environment in which institutions operate and their responsibilities
with respect to the public interest, which may include maintaining a
“policy of transparency” regarding information which is used in the
decision-making process.33

[101] I agree with this statement regarding the public interest in disclosure of a
summary of some “bottom-line” information in the interest of transparency.

[102] On my review of the “bottom-line” advice that has been publicly disclosed, as
well as on my review of the legal opinions themselves, I conclude that the police’s
attempt to provide transparency in one aspect of its decision-making process, by
publicly disclosing the summary of the legal opinions, has not resulted in any unfairness
or inconsistency requiring a finding of implied waiver.

[103] Lastly, I have considered the appellant’s position that the principle of fairness
allows for privilege to be waived by implication where a client’s conduct reaches a
certain point of disclosure, and that I ought to find that the police implicitly waived any
privilege in the legal opinions when they raised the legal advice in defence of their
position that the practice of carding was legal and in support of their position as to the
appropriate policy response to carding by the chief and the board. As noted above, the
appellant refers to the Campbell case in support of his position, and the police take the
position that the principles set out in Campbell do not apply.

[104] The appellant states that a client can waive privilege by directly raising legal
advice in a pleading or proceeding, thereby putting that legal advice in issue.34 He
refers to Campbell, where the RCMP relied on the advice of the Department of Justice
in court to support its position that its actions were in good faith, and where the court
found that the RCMP had waived privilege by implication and that the appellants were
33
At pages 5 and 6.
34
[1999] 1 SCR 565 [Campbell]; Law of Evidence in Canada at para 14.146.
 - 25 -

“entitled to have the bottom line of that evidence corroborated.”35 The appellant
acknowledges that the litigation context in Campbell is different than the context in this
appeal; however, he submits that it is a strong indicator that the chief waived privilege
by implication by sharing the bottom line of the legal advice, especially because the
police will ultimately rely on that advice as support for certain actions and policies.36

2016 CanLII 79158 (ON IPC)

[105] As noted above, the police assert that the appellant’s reliance on Campbell is
misplaced. In Campbell, the RCMP were found to have engaged in illegal conduct, and
the accused argued there had been an abuse of process and sought to stay the
proceedings. In resisting the requested remedy, the RCMP claimed to have acted in
good faith based upon advice from Crown Counsel. The legal advice had been obtained
specifically for the investigation at issue, and the RCMP’s reliance on that advice in
asserting their good faith was explicit.

[106] In contrast, the police submit that the chief has never suggested that the legal
opinions at issue constitute a “justification” for the police’s community contacts policy.
The police also submit that the disclosure of the bottom line of advice provided to the
chief cannot be taken to constitute reliance on that advice as a good faith basis for a
policing policy adopted by the board on a controversial issue that that board sought out
and received its own separate legal opinion on.

[107] In his sur-reply representations, the appellant states that:

The case of Campbell … is an example of the application of the doctrine of

implied waiver of solicitor-client privilege where waiver will be implied
when required by fairness.

[108] I have reviewed the Campbell decision and the representations of the parties on
the possible impact of that decision to the issues before me. I find that the
circumstances giving rise to the disclosure of the legal advice in Campbell are quite
distinct from the ones at issue in this appeal, and do not apply in the circumstances this
appeal, where a public institution references legal advice sought and received in the
context of making decisions on matters of public policy. The legal opinions (as well as
other legal advice provided to the board) were one component of the process
undertaken by the board to make the decisions it did. In addition, on my review of the
statements made by the chief and the deputy chief in the public meetings referenced by
the appellant, I conclude that the references to the “bottom-line” advice by these

35
Campbell, ibid, at para 47.
36
As noted above, the appellant provided an article with his submissions, which discusses a case where
the Ontario Superior Court of Justice held that referring to the receipt of legal advice in an affidavit
amounts to the waiver of privilege. Again, the appellant acknowledges that the context of this appeal
differs from the litigation context in Ebrahim v Continental Precious Minerals, but suggests that revealing
the conclusions of a legal opinion in a public meeting concerning public policy amounts to waiver of
solicitor-client privilege.
 - 26 -

individuals is insufficient to support a finding of implied waiver of solicitor-client

privilege as found in Campbell. As a result, I find that the principle of fairness does not
result in a finding that privilege in the legal opinions was waived by implication.
Exercise of Discretion

2016 CanLII 79158 (ON IPC)

General principles

[109] The section 12 exemption is discretionary, and permits an institution to disclose

information, despite the fact that it could withhold it. An institution must exercise its
discretion. On appeal, the Commissioner may determine whether the institution failed
to do so.

[110] In addition, the Commissioner may find that the institution erred in exercising its
discretion where, for example,

 it does so in bad faith or for an improper purpose

 it takes into account irrelevant considerations

 it fails to take into account relevant considerations.

[111] In either case this office may send the matter back to the institution for an
exercise of discretion based on proper considerations.37 This office may not, however,
substitute its own discretion for that of the institution.38

Relevant considerations

[112] Relevant considerations may include those listed below. However, not all those
listed will necessarily be relevant, and additional unlisted considerations may be
relevant:39

 the purposes of the Act, including the principles that

○ information should be available to the public

○ individuals should have a right of access to their own

personal information

○ exemptions from the right of access should be limited and

specific

37
Order MO-1573.
38
Section 43(2).
39
Orders P-344 and MO-1573.
 - 27 -

○ the privacy of individuals should be protected

 the wording of the exemption and the interests it seeks to protect

 whether the requester is seeking his or her own personal information

2016 CanLII 79158 (ON IPC)

 whether the requester has a sympathetic or compelling need to receive
the information

 whether the requester is an individual or an organization

 the relationship between the requester and any affected persons

 whether disclosure will increase public confidence in the operation of

the institution

 the nature of the information and the extent to which it is significant

and/or sensitive to the institution, the requester or any affected person

 the age of the information

 the historic practice of the institution with respect to similar

information.

Representations and findings

[113] The police submit that the chief considered whether to exercise his discretion to
waive the privilege he claims over the opinions, and the extent to which some of the
material could be released to the public. The police confirm that the chief remains of
the view that privilege should not be waived, and that this position is “in his unfettered
discretion” to take. The police also submit that, to the extent that information contained
in the records can be severed and made public, that information has been made public
as it was included in the PACER report.

[114] The police also submit that the exercise of discretion was made in good faith,
was respectful of the need for the disclosure of information on a matter of public
debate, yet sensitive to the need of the chief to be able to seek and receive legal advice
in confidence.

[115] The appellant states that he is not surprised that the police claim to have
exercised its discretion in determining not to waive privilege. While the police claim to
have obtained beneficial intelligence through the carding process, the appellant does
not believe that the police have ever publicly substantiated those claims.
 - 28 -

[116] On my review of the representations of the parties, I see no basis upon which to
interfere with the police’s exercise of discretion. The police took into account relevant
considerations and there is no evidence that it acted in bad faith or for an improper
purpose. The police confirm that they considered the fact that certain information had
been released to the public and that the solicitor-client privilege applies to the records.

2016 CanLII 79158 (ON IPC)

In the circumstances, I see no error in the police’s exercise of discretion to apply the
section 12 exemption to the records, and I uphold their exercise of discretion.

ORDER:

I uphold the decision of the police that the records qualify for exemption under section
12 of the Act, and dismiss this appeal.

Original Signed By: November 3, 2016

Frank DeVries
Senior Adjudicator