The Court held:
[30] This appeal raises two issues. Did the Divisional Court err in:
1. holding that the Disputed Records fall within the second branch of s. 19 of FIPPA; and
2. concluding that settlement privilege applied to exempt the Disputed Records from disclosure?
DO THE DISPUTED RECORDS FALL WITHIN THE SECOND BRANCH OF S. 19 OF FIPPA?
[31] It will be recalled that the second branch of s. 19 provides that a record is exempt from disclosure if it was "prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation".
[32] In the present case, there is no dispute that LCBO counsel are Crown counsel. The dispute is over whether documents prepared for mediation and settlement have been prepared for use in "litigation".
[33] The IPC submits that the word "litigation" should be construed narrowly, to exclude mediation and settlement discussions. Essentially, the IPC's position is that the second branch is co-extensive with litigation privilege for Crown counsel and litigation privilege does not include settlement privilege.
[34] The IPC also maintains that the Divisional Court's determination that records shared with opposing counsel are "prepared for use in litigation" conflicts with two of its earlier decisions: Ontario (Attorney General) v. Big Canoe (2006), 80 O.R. (3d) 761 (Div. Ct.), at para. 45 (Big Canoe 2006) and Ontario (Ministry of Correctional Services) v. Goodis (2008), 89 O.R. (3d) 457 (Div. Ct.), at para. 44 (Goodis 2008). The IPC submits that in both Big Canoe 2006 and Goodis 2008, the Divisional Court held that documents sent to opposing counsel were not "prepared for use in litigation" within the meaning of the second branch of s. 19 because they fell outside any reasonable "zone of privacy" and because they were not prepared to assist counsel in the litigation.
[35] I would dismiss this ground of appeal for two reasons.
[36] First, I endorse the view of the Divisional Court on this issue. In summary, the Divisional Court said this. Alternative dispute resolution now forms an integral part of the civil litigation process in Ontario. Various alternative dispute resolution methods have been incorporated into the litigation process as can be seen by reference to the Rules of Civil Procedure,[3] which regulate and help define the parameters of the litigation process. The Disputed Records were delivered as part of a mediation. In Rogacki v. Belz, at paras. 44–47, this court observed that mandatory mediation is a part of the litigation process. There is no principled reason to treat mandatory and consensual mediations differently, when considering whether they are part of the litigation process. Furthermore, interpreting the word "litigation" in the second branch to encompass mediation and settlement discussions is consonant with public interest considerations because the public interest in transparency is trumped by the more compelling public interest in encouraging the settlement of litigation.
[37] Second, in addition to the reasons of the Divisional Court on this issue, I would reject the narrow interpretation urged by the IPC because it runs contrary to basic principles of statutory interpretation. The IPC would limit the second branch to documents that fall within the ambit of litigation privilege. With respect, a plain reading of the second branch does not support such an interpretation. When the legislature wished to exempt records based on privilege, it did so using clear language. Witness the first branch of s. 19 which permits a head to refuse to disclose a record that is "subject to solicitor-client privilege". The words of the second branch follow immediately afterwards in the same provision and they do not use the words "litigation privilege". Rather, the second branch governs records "prepared by or for Crown counsel … for use in litigation". Therefore, the second branch should not be taken to be limited to documents that fall within the common law litigation privilege.
[38] Further, based on recent judgments of the Supreme Court of Canada, I understand that fundamental common law privileges, such as settlement privilege, ought not to be taken as having been abrogated absent clear and explicit statutory language: see Privacy Commissioner of Canada v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, at para. 11 and Lavallee, Rackel & Heintz v. Canada (Attorney-General), [2002] 3 S.C.R. 209, at para. 18. While both of these cases relate to solicitor-client privilege, many of the same considerations apply to settlement privilege. Section 19 does not contain express language that would abrogate settlement privilege. Accordingly, in my view, it ought not to be so interpreted.
[39] While this court's decision in Big Canoe 2002 may appear to support the IPC's contention that the second branch is co-extensive with litigation privilege being extended to Crown counsel, a close examination of that decision reveals otherwise.
[40] In Big Canoe 2002, at paras. 7-8, this court said that the Divisional Court was correct to find that the inquiry officer erred in her interpretation of s. 19 by analyzing it as consisting of two branches: solicitor client privilege and litigation privilege. In para. 13, the court goes on to explain that "it is the plain meaning of the words used in branch two" that is to govern. It said that the inquiry officer erred by assuming that the intent behind the second branch was to simply extend litigation privilege to Crown counsel. The court concluded that the exemption provided by the second branch was permanent. That is, the court concluded that the exemption provided by the second branch was significantly different than that which would have existed had the records been subject only to litigation privilege.
[41] In my view, Big Canoe 2002 provides clear guidance of two sorts to courts called on to consider the ambit of the second branch. First, give the words in the second branch their plain meaning. Second, do not assume that the second branch is intended merely to extend litigation privilege to Crown counsel. Accordingly, I do not view Big Canoe 2002 as standing for the proposition that the second branch is intended to cover only documents that fall within the ambit of litigation privilege.
[42] Nor do I read Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32 (Goodis 2006) as limiting the scope of the second branch to litigation privilege. That contention rests on para. 12 of Goodis 2006, which reads as follows:The Ministry has claimed that all the documents in the private record are exempt from disclosure under s. 19 of the
Access Act, which provides:
19. A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.
Section 19 applies to two categories of documents:
(1) communications between a solicitor and his or her client and
(2) documents prepared in contemplation of or for use in litigation.
Section 19 recognizes these common law privileges: solicitor-client communication privilege and litigation privilege. [Emphasis added.]
[43] The emphasized sentence in the quoted passage does not state that the second branch is limited to, or co-extensive with, litigation privilege. Rather, it says that s. 19 recognizes litigation privilege. The fact that the second branch recognizes litigation privilege does not mean that its scope is limited to documents that fall within litigation privilege. Further, as the Court acknowledged in the following paragraph in Goodis 2006, the focus of its decision was solely on the first branch, that is, solicitor-client privilege. Indeed, nothing more is said in Goodis 2006 about the second branch. Thus, the fleeting reference in para. 12 to the second branch is obiter.
[44] Once litigation is understood to include mediation and settlement discussions, it is apparent that the Disputed Records – both those prepared by Crown counsel and those prepared by Magnotta – fall within the second branch and are exempt from disclosure. Nothing more need be said to explain why the materials prepared by Crown counsel fall within the second branch. As for the materials prepared by Magnotta and delivered to the Crown, in my view, they were "prepared for Crown counsel" because they were provided to Crown counsel for use in the mediation and settlement discussions. To limit the second branch to records prepared by, or at the behest or on behalf of, Crown counsel is contrary to the plain meaning of the language of the second branch. Furthermore, it is antithetical to the public policy interest in settlement of litigation because it would lead to situations in which the government entity's records would be exempt from production while the private party's mediation material would be producible.
[45] I do not view the Divisional Court decisions in Big Canoe 2006 and Goodis 2008 as inconsistent with the Divisional Court's interpretation of the second branch of s. 19 in the present case. In Big Canoe 2006, simple correspondence between counsel during the course of a prosecution was held to be outside the scope of the second branch. Simple correspondence is not a document that was prepared "for use in the litigation". Rather, it was a document that was prepared during the course of litigation. Nor would counsel reasonably expect that simple correspondence would fall within the "zone of privacy". Contrast that with the Disputed Records in the present case. The Disputed Records are documents prepared by, or delivered to, Crown counsel to assist with mediation and settlement discussions, a part of the litigation process. Furthermore, the Disputed Records were explicitly cloaked in confidentiality. Before undertaking the mediation, the parties signed a mediation agreement that contained a confidentiality provision and the settlement documents were replete with extensive confidentiality provisions. Clearly, the Disputed Records fall within any reasonable "zone of privacy".
[46] Similarly, in Goodis 2008 the Divisional Court held that a letter prepared by plaintiff's counsel listing undertakings, advisements and refusals given on behalf of the Crown was not within the ambit of the second branch. Again, in my view, while such a letter is prepared during the course of litigation, it was not prepared for "use in litigation" in the sense that counsel would reasonably expect such a letter to fall within the 'zone of privacy".
James Morton
1100-5255 Yonge Street
Toronto, Ontario
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416 225 2777
www.jmortonmusings.blogspot.com
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