B.C. Supreme Court overturns Information and Privacy Commissioner’s decision that the Province of British Columbia was not permitted to refuse to disclose an e-mail sent from one lawyer to another on the basis of solicitor-client privilege.
Administrative law – Decisions reviewed – Information and Privacy Commissioner – Freedom of information and protection of privacy – Disclosure of records – Judicial review – Standard of review – Correctness – Solicitor-client privilege
British Columbia (Minister of Justice) v. British Columbia (Information and Privacy Commissioner),  B.C.J. No. 1973, 2019 BCSC 1787, British Columbia Supreme Court, October 18, 2019, J. Steeves J.
The Province of British Columbia (the “Province”) and the Government of Canada (“Canada”) were in negotiations with a First Nation for “land and cash.” In January 2009, lawyers for the Province and Canada were involved in discussions about an offer to the First Nation. On January 21, 2009, a lawyer for Canada wrote an e-mail to two lawyers for the Province regarding the offer (the “E-mail”). Two other people were copied on the e-mail, whose positions and employers are unknown. The E-mail was then forwarded on the same day by one of the lawyers for the Province to the person who was drafting documents and negotiating on behalf of the Province. The E-mail was also discussed in subsequent communications between the lawyer for the Province and other government officials.
In August 2013, an individual who was involved in the negotiations and who owns property and operates businesses in the area of the First Nation, Mr. English, applied through the Information and Privacy Commissioner for disclosure of information from the Province. The disclosure request was refused by the Province, on the basis of solicitor-client privilege as provided for under section 14 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 (the “Act”). Mr. English asked for a review of that decision under section 52 of the Act.
On February 26, 2016, an adjudicator delegated by the Information and Privacy Commissioner ordered disclosure of some of the documents at issue, including the E-mail. The British Columbia Minister of Justice applied to set aside that decision as it pertained to the E-mail.
The Court determined that the standard of review of the decision was correctness. The Court reviewed the law with respect to solicitor-client privilege, citing extensively from British Columbia (Attorney General) v. Lee, 2017 BCCA 219, leave to appeal ref’d  SCCA No. 328 (“Lee”) where the Court held that solicitor-client privilege applies “to all communications made within the framework of the solicitor-client relationship.” The petitioner emphasized the broad scope of solicitor-client privilege as set out in Lee.
The Court in Lee also provides discussion of limits on the scope of solicitor-client privilege, including that advice given by lawyers on matters outside the solicitor-client relationship is not protected and may be severed. Lee further provides that severance should only be considered when it can be accomplished without any risk that the provided legal advice will be revealed or capable of ascertainment.
It was held that in the circumstances of this petition, there was little doubt that the E-mail was forwarded by a lawyer for the Province in the context of a solicitor-client relationship, meaning the negotiator to whom the E-mail was forwarded was the “client” for the purposes of the relationship. Further, the contents of the E-mail discussed legal issues, the negotiations, and the presence of risks related to those issues.
It was accepted that the E-mail did not originate in that same context, as it was sent to a lawyer for the Province by a lawyer for Canada. It was held to be appropriate and necessary to consider all the e-mails as a whole, however. The E-mail could not be severed from the context and continuum of communications around it, including the fact that the Information and Privacy Commissioner found that all communications discussing the E-mail were privileged. It was therefore held that the communications, including the E-mail, were protected by solicitor-client privilege and that the petitioner was entitled to refuse to disclose it pursuant to section 14 of the Act.
This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Mollie A. Clark at firstname.lastname@example.org.