Leahy v. Canada (Citizenship and Immigration), 2012 FCA 227

June 2014

Summary: This appeal was about a refusal to disclose certain documents, largely on the basis of solicitor-client privilege. The appeal was allowed because the government institution did not provide enough information to permit the Court of Appeal to decide whether the refusals were justified.

Facts: In September 2007, Citizenship and Immigration Canada (“CIC”) concluded that Mr. Leahy was not permitted to provide services to immigration clients, and issued a direction requiring all visa offices to send all of Mr. Leahy’s clients a letter stating that they would not deal with Mr. Leahy and instruct them on how to proceed without him. CIC reversed its decision in January 2008. Mr. Leahy filed a Privacy Act request for all records pertaining to him. CIC decided to limit its search to National Headquarters, and for records between January 1, 2007 and May 16, 2008. CIC eventually disclosed certain records, but refused to disclose others on the basis of s. 26 (personal information of other individuals) and s. 27 (solicitor-client privilege) of the Privacy Act. Mr. Leahy applied for judicial review of that decision, and then appealed to the Federal Court of Appeal when he lost in Federal Court.

Result: The matter was remitted back to CIC for redetermination.

Decision: The first issue addressed by the Court of Appeal was the standard of review of CIC’s decision. The Court of Appeal concluded that correctness is the standard of review for decisions about whether personal information falls within a particular statutory exemption. The Court of Appeal also concluded that the reasonableness standard of review applies to exercises of discretion not to release information that falls within a statutory exemption.

The main issue before the Court of Appeal was whether the exclusion for solicitor-client privilege was proper. The Court of Appeal identified that this raises two issues: did the decision-maker correctly identify the excluded documents as privileged, and then did the decision-maker reasonably exercise his or her discretion not to waive the privilege and release them anyway. The Court of Appeal was unable to properly decide the case (and therefore ordered the matter be sent back to the CIC for redetermination) because the CIC’s decision letter and supporting affidavit in court did not properly set out the basis of its assertion of privilege. The CIC did not state who made the decision, whether any of the recipients or senders of correspondence setting out legal advice were lawyers, or which documents, if any, were covered by litigation privilege. The Court of Appeal, in reviewing the decision to withhold personal information, concluded that it needed to know five things in an exclusion case based on solicitor-client privilege:

  1. Who decided the matter?
  2. Their authority to decide the matter (i.e. were they properly delegated the authority, or are they the “head” of the institution);
  3. Whether the same person decided both issues (i.e. whether the record was privileged and whether to waive that privilege);
  4. The criteria that the decision-maker took into account; and
  5. Whether those criteria were or were not met and why.

Most of this information should be contained in the government institution’s decision-letter, although if necessary the fifth element can be shown by way of an affidavit filed with the court in any judicial hearing concerning the request.

The Court of Appeal also concluded that CIC properly limited its search to National Headquarters, in light of Mr. Leahy’s failure to provide more specific information about the scope of his request.

The Court of Appeal, in the course of its decision, identified two other principles in the Privacy Act: (a) the exclusion for solicitor-client privilege includes “litigation privilege”, just as it does in the Access to Information Act; and (b) Treasury Board policies dealing with privacy and access, or the government’s internal security classifications of documents, are not binding on a court and are of “limited legal significance.”

Principles:

  1. The standard of review about whether a particular statutory provision applies is correctness. The standard of review of a discretionary decision not to disclose personal information is reasonableness.
  2. When refusing to disclose a record on the basis of solicitor-client privilege, a government institution must clearly indicate: (a) who decided the matter; (b) their authority to decide the matter; (c) whether the same person decided whether the record was privileged and whether to waive that privilege; (d) the criteria to take into account; and (e) whether those criteria were or were not met and why.
  3. Solicitor-client privilege for the purposes of the Privacy Act includes litigation privilege (documents created for the purpose of litigation).
  4. Treasury Board policies on privacy and access are not binding on a court.
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