Solicitor Client Privilege vs. Access to Information – Title Bout
Imagine the legal principles of solicitor client privilege and access to information embodied by two boxers entering into the ring. The two principles were set against each other in Goodis v Ontario (Ministry of Correctional Services), 2006 SCC 31 [Goodis], and solicitor client privilege won by technical knock out on July 7, 2006.
To give access to information its due, it did last several rounds before the fight was unanimously called by Rothstein J. and the other SCC judges. Access to information managed to go head-to-head for five rounds with solicitor client privilege, a legal community and fan favorite — not too shabby for a legal principle that is more likely to draw a fan base amongst the media. The five round fight included time spent with the Ontario Information and Privacy Commissioner, Ontario Divisional Court, Panels at both the Ontario Divisional Court and Ontario Court of Appeal, and then finally the SCC.
In the early rounds and indeed right up to the SCC it looked like either principle could have won the fight. Even given solicitor client privilege’s close relationship with the fight administrators (AKA judges and the legal community), it wasn’t going to get a free ride. Not until reaching the SCC round was solicitor client privilege able to land the “absolute necessity test” resulting in the technical knockout of its adversary.
That is how things might have gone down if legal principles could be embodied in two battling prize fighters. Fortunately, or unfortunately depending on your perspective, this is not the case. In Goodis, Rothstein J., writing for the SCC, overturned the previous decision of Blair J. of the Ontario Divisional Court. Blair J. had granted access to documents protected by solicitor client privilege to a requester’s counsel (not to the requester himself), but subject to counsel undertaking to maintain the documents’ confidentiality. For the Supremes, Blair J. erred when he failed to apply the absolute necessity test for solicitor client privilege, although they suggest that they would agreed with Blair J.’s approach if the confidentiality was claimed on some other basis.
Rothstein J. in his reasoning clearly identifies the two issues in the appeal as whether or not the documents in question should be handed over to the requester’s counsel and whether the SCC has the power to govern its own procedure as distinct from those prescribed for the Ontario Information and Privacy Commissioner in cases such as this. Rothstein J. settles the issue with the legal equivalent of a quick one-two punch.