Federal Court orders partial disclosure of government policy paper

Published by Ian Gamble

Canadian taxpayers have a statutory right to information under the government’s control, subject only to limited and specific exceptions (Access to Information Act, s. 2(1)).  One such exception is for information protected by solicitor-client privilege.   In The Information Commissioner of Canada v. The Minister of Employment of Social Development, 2016 FC 36, it took a Nova Scotia lawyer – through the Information Commissioner – ten years to obtain limited parts of a government discussion paper.  The government steadfastly argued that the paper reflected privileged legal advice from the Department of Justice (DOJ).  Ultimately, the Federal Court found that certain portions of the paper were not privileged: they merely contained policy advice, and did not reveal any privileged advice or “provide clues” about such advice (see paragraph 32).  However, the court also found that certain other parts were protected by privilege because they stemmed from DOJ opinions and would provide clues about those privileged communications.  The disclosure of these latter parts would therefore “…undercut the purposes served by solicitor-client privilege” (see paragraph 30).  The case provides a decent summary of when solicitor-client privilege arises (see paragraphs 25 to 27), which of course can arise in many corporate tax contexts.