Office of the Information and Privacy Commissioner | Decision

ALBERTA

OFFICE OF THE INFORMATION AND PRIVACY

COMMISSIONER

INTERIM DECISION F2018-D-04

ORDER F2018-70

November 22, 2018

ALBERTA JUSTICE AND SOLICITOR GENERAL

Case File Numbers F6525/F6761

Office URL: www.oipc.ab.ca

Summary: Two Applicants each made one access to information request to Alberta Justice and Solicitor

General [Public Body] under the Freedom of Information and Protection of Privacy Act [FOIP Act]. The

First Applicant’s access request was for any requests for proposals from, and agreements entered into,

by the Public Body regarding external legal services, and without limiting the request, naming three

specific law firms, with respect to the recovery of health care costs associated with the use of tobacco

under the Crown’s Right of Recovery Act referred to as the CRRA Litigation. The Second Applicant’s

access to information request was for all records related to the awarding of the contingency (fee) contract

(agreement) [CFA] between the Public Body and the law firm group retained and the CFA itself. In

addition, the request was for records related to the process of awarding the tobacco litigation legal work

as to how the firm selected was chosen over its competitors. In response to the access requests, the

Public Body refused both of the Applicants the majority of the 564 pages of Records at Issue. Both

Applicants made a Request for Review to the Office of the Information and Privacy Commissioner but the

matter was not resolved. Thereafter, both of the Applicants filed a Request for Inquiry to the OIPC. The

Information and Privacy Commissioner, with the consent of all of the parties, merged the two case files

into one Inquiry. Due to being in a conflict, after consulting with all of the parties, the Commissioner

delegated the Inquiry to an External Adjudicator.

During the initial phase of the Inquiry in 2014, the First Applicant raised a Preliminary Evidentiary

Objection [PEO], which resulted in a phase of the Inquiry taking place and the release of Decision 2014-

D-03/Order F2014-50 [2014 Decision/Order]. The Public Body applied for judicial review, which

application has been adjourned sine die.

Unexpectedly on June 10, 2016 the Public Body provided the External Adjudicator with a small portion of

the Records at Issue, the majority of which were part of this Inquiry (though some involving another

access to information request), including Records at Issue over which solicitor client privilege and/or

litigation privilege had been claimed. The Public Body provided and the External Adjudicator accepted

the Records at Issue on a non-waiver basis. The Public Body indicated these records were provided as a

result of the fact that the Minister of Justice had instructed that the same records be provided to the Office

of the Ethics Commissioner with regard to his investigation into an ethics complaint about the selection

process of the lawyers retained in the CRRA Litigation. These Records at Issue over which legal

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privilege had been claimed were provided before the Supreme Court of Canada [SCC] decisions

regarding legal privilege in late 2016 [Alberta (Information and Privacy Commissioner) v. University of

Calgary and Lizotte v. Aviva Insurance Company of Canada]. A phase of the Inquiry took place with

respect to these June 10, 2016 Records at Issue ultimately resulting in Order F2017-61 [2017 Order].

The Public Body applied for judicial review, which application has since been adjourned sine die. The

Public Body and the Applicants were advised that the June 10, 2016 Records at Issue would no longer be

part of the Inquiry as it continued.

On September 30, 2016 (and on June 15, 2017) while the hearing with respect to the June 10, 2016

Records at Issue was taking place, the Public Body, unexpectedly, released additional pages of Records

at Issue to the Applicants. In addition, the Public Body provided numerous amended indices for the

Records at Issue that had expanded from 564 pages to 2,570 pages.

On January 19, 2017 (also during the hearing with respect to the June 10, 2016 Records at Issue) the

Public Body unexpectedly provided additional Records at Issue to the External Adjudicator (not to the

Applicants), in partial compliance with the 2014 Decision/Order, none of which included records over

which legal privilege had been claimed. The pages of records that were provided, however, included the

records disposed of in the 2017 Order (June 10, 2016 Records at Issue) and other records that had

already been released in full to the Applicants. This provision of an additional portion of the Records at

Issue that had not previously been provided prompted the External Adjudicator to issue the 2017 Notice

of Continuation to the parties. Shortly thereafter, the Public Body retained new counsel. As a result of

the Public Body advising it had retained a new lawyer, the External Adjudicator issued the 2017 Amended

Notice of Continuation to the parties amending the Schedule for Submissions. In order to be fair and to

accommodate the new counsel’s need for time, the External Adjudicator extended the dates for the

submissions, which the Applicants did not object to so long as their deadlines were adjusted accordingly.

The Inquiry continued with respect to the remaining Records at Issue, a small portion of which had been

provided to the External Adjudicator in January 2017. The Public Body had claimed s. 27(1)(a) for the

majority of the Records at Issue and, therefore, they were not available to the External Adjudicator. The

Public Body also claimed other discretionary exceptions: s. 21(1)(a), s. 24(1)(b), s. 25(1), s. 27(1)(b) and

s. 27(1)(c) and mandatory exceptions: s. 16(1) and s. 17, the majority of which applied to Records at

Issue where s. 27(1)(a) had also been claimed so none were available to review.

In addition to relying on its earlier submissions and affidavits from when the Inquiry began in 2014, the

Public Body provided the 2017 Affidavit of Records from in-house counsel with an Exhibited Index

attached, all of which was submitted to meet its evidentiary burden of proof for the exceptions claimed, in

particular, its claim to both solicitor client privilege and litigation privilege pursuant to s. 27(1)(a).

The evidence revealed the Public Body had considered the identity of the First Applicant, which is an

irrelevant consideration in exercising its discretion to refuse access to information. Near the end of the

Inquiry, the Public Body denied it had taken the identity of one of the Applicants into consideration.

In addition to making submissions that the Public Body had not provided sufficient evidence to meet its

burden of proof for either legal privilege or any of the other discretionary or mandatory exceptions, the

Applicants argued that the Records at Issue should be released pursuant to the s. 32 public interest

override. The First Applicant mistakenly argued that the Public Body had the burden of proof under s. 32.

Both of the Applicants argued the Records at Issue should be released to promote transparency,

accountability and democracy. The Applicants provided submissions regarding s. 32 and some evidence,

including an investigation report from the Ethics Commissioner and media reports. While the submissions

were substantial, the External Adjudicator found the Applicants had failed to satisfy the burden of proof as

they had not provided sufficiently clear, convincing, and cogent evidence to meet the compelling public

interest test for the s. 32 public interest override to apply to the information in the Records at Issue.

The External Adjudicator found that the Public Body had met its burden of proof to establish that it had

properly relied on and applied s. 27(1)(a) for some of the Records at Issue where it had submitted

sufficiently clear, convincing, and cogent evidence to establish the records were protected by solicitor

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client privilege under the Solosky test and/or the Lizotte criteria for litigation privilege by meeting the

ShawCor evidentiary requirements. In addition, the External Adjudicator found that where it had

established the records were protected by either or both legal privileges, the Public Body had properly

exercised its discretion under s. 27(1)(a) to refuse access to the Applicants as preserving legal privilege

was in the public interest.

The evidence submitted for some of the records over which legal privilege had been claimed, however,

did not meet the Solosky test for solicitor client privilege or the Lizotte criteria for litigation privilege and

fell short in meeting the evidentiary requirements as set out in ShawCor, the Alberta Rules of Court and

the OIPC Privilege Practice Note. For these Records at Issue because she was unable to make a

decision where the Public Body had failed to discharge its burden of proof, the External Adjudicator made

an Interim Decision giving the Public Body the opportunity to gather evidence and authority to support its

decision to withhold the records subject to the Interim Decision. The External Adjudicator reasoned that

because of the importance of legal privilege, she was not prepared to issue an Order requiring the Public

Body to give the Applicants access to these records, which could potentially place legally privileged

information in jeopardy because the Public Body has fallen short in meeting its duty to provide sufficiently

clear, convincing, and cogent evidence to meets its burden of proof. Details of the significant gaps in the

evidence were provided in the Interim Decision/Order.

When the Public Body provided its 2017 submissions they included correspondence from affected third

parties, attached as exhibits to the 2017 Affidavit of Records. In 2012, the affected third parties had

received notice from the Public Body’s FOIP Manager that access to information requests had been

received that contained their business information. The Public Body had argued notice to all the affected

third parties with respect to its claim for the s. 16 exception was an outstanding matter. The responses

provided by the affected third parties in 2012 indicated that the affected third parties had been given

copies of the records that contained their business information. In 2012 there were 564 pages of Records

at Issue. There was no evidence the affected third parties received notice of the Inquiry or were provided

copies of any of the pages of records when the Records at Issue expanded from 564 pages to 2,570

pages in 2016.

As part of their initial submissions, the Applicants raised the issue of waiver of legal privilege. Initially

these submissions were with respect to public statements made by government representatives about the

terms of the CFA. In the 2014 Decision/Order, the issue of waiver was discussed as a consideration

regarding the opinion evidence ruled inadmissible in the order. There was no finding with respect to

waiver or limited waiver of legal privilege and amounted to obiter in the 2014 Decision/Order. The Public

Body elected to continue to rely on the Opinion Letter despite it having been ruled inadmissible. As a

result of the Public Body attempting to reserve the right to file further materials, the parties were invited at

the close of submissions to make supplementary submissions on the sole issue of waiver. In that regard,

the Public Body submitted the 2018 Affidavit of in-house counsel that revealed that there had been a

retainer that included a non-disclosure clause, which information regarding the protection of the legally

privileged information provided to the author of the Opinion Letter had not been included as part of the

Public Body’s initial submission in 2014. The External Adjudicator found the public statements made by

the Public Body constituted partial waiver over the specific terms of the CFA and ordered release of those

portions of the record confirmed by the Public Body to be the CFA that had been the subject of public

comment. The External Adjudicator found the Public Body did not waive legal privilege by providing 564

pages of Records at Issue to the author of the Opinion Letter.

Statutes Cited: AB: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, ss. 1, 2,

6, 7, 16, 17, 21, 24, 25, 27, 30, 32, 56, 66, 69, 71, 72, 74; Crown’s Right of Recovery Act, S.A. 2007, c. C-

35; Public Inquiries Act, R.S.A. 2000, c. P-39; CAN: Privacy Act, R.S.C., 1985, c. P-21.

Authorities Cited: AB: Adjudication Order #2, Decision F2014-D-03/Order F2014-50, Decision P2011-

D-003, Order 96-003, Order 96-011; Order 96-016, Order 96-017, Order 97-009, Order 98-013, Order 99-

017, Order 99-023, Order 2001-028, Order F2004-003, Order F2005-009, Order F2005-011, Order

F2006-010; Order F2008-021, Order F2008-032, Order F2009-021, Order F2010-007, Order F2011-018,

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Order F2012-06, Order F2013-51, Order F2014-38/Decision F2014-D-02, Order F2014-44, Order F2015-

31, Order F2016-65, Order F2017-28, Order F2017-54, Order F2017-61; BC: Order F07-05, Order F13-

15, Order F15-09; ON: Order PO-1998, Order PO-3514.

Cases Cited: University of Calgary v. J.R., 2015 ABCA 118, Alberta (Information and Privacy

Commissioner) v. University of Calgary, 2016 SCC 63; Lizotte v. Aviva Insurance Company of Canada,

2016 SCC 52; Canadian Natural Resources Ltd. v. ShawCor Ltd., 2014 ABCA 289; Pritchard v. Ontario

(Human Rights Commission), 2004 SCC 31; Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403;

Qualicare Health Service Corp. v. Alberta Office of the Information and Privacy Commissioner, 2006

ABQB 515; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR. 817; Ontario

(Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23; Ontario (Community Safety

and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31; Blank v.

Canada (Minister of Justice) [2006] 2 SCR 319; Imperial Tobacco Co v. Newfoundland and Labrador

(Attorney General), 2007 NLTD 172; Walker v. Ritchie 2006 SCC 45; Hayes v. New Brunswick (Minister

of Justice and Consumer Affairs, 2008 NBQB 112; Merck Frosst Canada Ltd. v. Canada (Health), 2012

SCC 3; Solosky v The Queen, [1980] 1 SCR 821; Morrison v. Rod Pantony Professional Corporation,

2008 ABCA 145; Burr (Litigation Guardian of) v. Bhat, 117 Man R (2d) 279; Canada (Information

Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104; S. &

K. Processor Ltd. v. Campbell Ave. Herring Producers Ltd., 45 BCLR 218; Imperial Oil Limited v. Alberta

(Information and Privacy Commissioner), 2014 ABCA 231; Descôteaux et al. v. Mierzwinski [1982] 1 SCR

860; IMS Health (Canada) v. Alberta (Information and Privacy Commissioner), 2008 ABQB 213; British

Columbia (Attorney General) v. Lee, 2017 BCCA 219; Canada (Privacy Commissioner) v. Blood Tribe

Department of Health, [2008] 2 SCR 574; Calgary (Police Service) v. Alberta (Information and Privacy

Commissioner), 2017 ABQB 656; Pinder v. Sproule, 2003 ABQB 33; Ontario (Attorney General) v.

Ontario (Information and Privacy Commissioner), 2016 ONSC 6913, Transamerica Life Insurance Co. of

Canada v. Canada Life Assurance Co. (1995), 7258 (ONSC); Hodgkinson v. Sims, 1988

CarswellBC 437; Chernetz v. Eagle Copters Ltd., 2005 ABQB 712; FH v. McDougall 2008 SCC 38;

Alberta v. Suncor Inc., 2017 ABCA 221; John Doe v. Ontario (Finance), 2014 SCC 36.

Other Sources Cited: Ethics Commissioner Wilkinson Investigation Report (December 2013); Iacobucci

Review Report (March 2016); Alberta Hansard (Legislative Assembly December 4, 2012); Adjudication

Practice Note 1; OIPC Privilege Practice Note (2016); Solicitor-Client Privilege Adjudication Protocol

(2008); Alberta Rules of Court 5.7, 5.8, 10.7(2).

TABLE OF CONTENTS FOR THE INTERIM DECISION/ORDER

I. Background

II. Records at Issue

III. Issues in the Inquiry

IV. Submissions of the Parties

A. Second Applicant Initial Submission [2014 Second AIS]

B. First Applicant Initial Submission [2014 First AIS]

C. Public Body Initial Submission [2014 PBIS]

i. Tab 2 of 2014 PBIS: FOIP Advisor Affidavit [2014 FOIP Advisor Affidavit]

ii. Tab 3 of 2014 PBIS: FOIP Director Affidavit [2014 FOIP Director Affidavit]

D. Public Body Supplementary (Initial) Submission [2017 PBSS]

i. Tab A of 2017 PBSS: Affidavit of In-House Counsel [2017 Affidavit of Records]

E. Second Applicant Rebuttal Submission [2017 Second ARS]

F. First Applicant Rebuttal Submission [2017 First ARS]

G. Public Body Rebuttal Submission [2018 PBRS]

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H. Public Body Supplementary Submission on Waiver [2018 PBSS Waiver]

i. Affidavit of [name of in-house counsel] [2018 Waiver Affidavit]

I. First Applicant Supplementary Rebuttal Submission on Waiver [2018 First ASRS Waiver]

V. Discussion of Issues

A. Section 27

i. Section 27(1)(a)

ii. Exercise of Discretion under s. 27(1)(a)

iii. Section 27(1)(b) and iv. Section 27(1)(c)

B. Mandatory Exceptions

i. Section 16(1)

ii. Section 17

C. Section 32: Public Interest Override

D. Waiver

i. Waiver and public statements made about the CFA

ii. Waiver and the provision of the Records at Issue to the author of the Opinion Letter

VI. Findings

VII. Interim Decision

VII. Order

I. BACKGROUND

[para 1]

On June 6, 2014, I issued the Notice of Inquiry [2014 Notice]. In accordance with the

Schedule that I had set out in the Notice, the Applicants provided their Initial Submission on July 7, 2014

and July 9, 2014 respectively, and the Public Body provided its Initial Submission on August 6, 2014.

Immediately after the exchange of those submissions, a Preliminary Evidentiary Objection [PEO] was

raised by the First Applicant, which the other Applicant agreed should be raised. The main Inquiry was

put on hold in order to adjudicate the PEO. What followed was an exchange of submissions between the

parties regarding the PEO that resulted in my Decision F2014-D-03/Order F2014-50 [2014

Decision/Order]. The Public Body applied for judicial review of the 2014 Decision/Order.

[para 2]

In the 2014 Decision/Order, I laid out the Background to the Inquiry leading up to the

PEO being raised, which included the 2014 Notice, as follows:

On May 16, 2014, my initial correspondence to the parties was to confirm three matters:

1.

2.

3.

The parties had received a copy of my delegation from the Commissioner as an

External Adjudicator

The parties had already agreed that both of the case files would be consolidated into

one Inquiry, and

The parties were advised I had taken an oath under s. 51(7) of the Freedom of

Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 [FOIP Act] prior to

commencing the Inquiry on May 13, 2014.

By separate correspondence on the same date, I sought the consent of the both Applicants to

have their identities disclosed to each other, to share copies of their respective Requests for

Inquiry [and their Requests for Review that were attached], and to share their contact information

with each other. Both Applicants provided their consent in writing.

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On June 6, 2014 I sent the formal Notice of Inquiry to the Public Body and the Applicants. The

Notice of Inquiry reads as follows:

This Inquiry arises from two separate requests to access information filed by two separate

Applicants with Alberta Justice and Solicitor General [the “Public Body”] pursuant to s. 7 of

the Freedom of Information and Protection of Privacy Act [the “FOIP Act”].

The first Applicant filed a request to access information [#F6525] with the Public Body on

June 12, 2012, which reads as follows:

We request all records available from the [Public Body], with respect to the following matters:

1.

Any requests for proposals for external legal services from the [Public Body] or any

other ”public body,” as defined in s. 1(p) of the FOIP, relating to the recovery of

health care costs pertaining to tobacco use, including, without limitation, the

recovery of health care costs under the Crown’s Right of Recovery Act, SA 2009,

C-35 (the “CRRA”), and including, without limitation, any deliberations, discussions,

evaluations, or other information related to any such requests for proposals, and

the preparation of any such proposals.

2.

Any agreements entered into for external legal services relating to the recovery of

health care costs pertaining to tobacco use, including recovery under the CRRA, or

pursuant to any requests for proposals for external legal services described in point

1, supra.

3.

4.

Any policies, standing orders, terms and conditions, or other documents regarding

procurement applicable to requests for proposals for external legal services,

described in point 1, supra, or agreements described in point 2, supra.

Without limiting the request set out in point 2, supra, any agreements entered into

between:

(a) the Government of Alberta, or any “public body,” as defined in s.

1(p) of the FOIP; and

(b) any law firms, including without limitation:

(i)

[name of law firm];

(ii) [name of law firm]; and

(iii) [name of law firm],

relating to the recovery of health care costs pertaining to tobacco use, including

recovery under the CRRA, or pursuant to any requests for proposals for external

legal services described in point 1, supra.

On August 31, 2012, the Public Body made a decision with respect to that request to access

information from the first Applicant, which reads as follows:

564 pages of records were located in response to your request. Some of the records

requested contain information that is exempted from disclosure under sections 16, 17,

21, 24, 25 and 27 of the Freedom of Information and Protection of Privacy Act or contain

information non-responsive to your request. We have severed the exempted and non-

responsive information so that we could disclose to you the remaining information in the

records.

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The second Applicant filed a request to access information [#F6761] with the Public Body on

July 30, 2012, which reads in its entirety as follows:

This request for all records as defined by Section 1(q) of the Act related to the awarding

of the contingency contract between Alberta Justice and [name of law firm group]. The

request would include, but not [be] limited to, the contingency contract itself. [Time period

of the records: Sept. 1, 2010 – July 1, 2011]

The request to access information was amended on September 11, 2012, based on an email

from the second Applicant to the Public Body, which stated “please amend my request to

include” the following:

any records as defined by Section 1(q) to the process of awarding the tobacco litigation

legal work, including but not limited to the approval of the firm - [name of law firm group] -

by the minister. Specifically, I am seeking any records related to how [name of law firm

group] were chosen over their competitors.

On September 21, 2012, the Public Body made a decision with respect to that request to

access information from the second Applicant, which reads as follows:

564 pages of records were located in response to your request. Some of the records

requested contain information that is exempted from disclosure under sections 16, 17,

21, 24, 25 and 27 of the Freedom of Information and Protection of Privacy Act or contain

information non-responsive to your request. We have severed the exempted and non-

responsive information so that we could disclose to you the remaining information in the

records.

On October 23, 2012, the first Applicant filed a Request for Review of the Public Body’s

decision to withhold information from the records it provided in response to [his/her] request

to access information.

On January 10, 2013, the second Applicant filed a Request for Review of the Public Body’s

decision to withhold information from the records it provided in response to [his/her] request

to access information.

The Commissioner subsequently authorized a portfolio officer to investigate and attempt to

settle both matters, however, this was not successful.

On June 25, 2013, the first Applicant filed a Request for Inquiry with respect to [his/her]

request to access information.

On May 27, 2013, the second Applicant filed a Request for Inquiry with respect to [his/her]

request to access information.

By consent of the parties, the two Requests for Inquiry regarding the Public Body’s decisions

in response to the two requests to access information from the Applicants were consolidated

into one inquiry provided that the records were identical. Legal counsel for the Public Body

assured the Commissioner that this was so by letter dated November 21, 2013. The

Commissioner confirmed the basis of the agreement to consolidate by letter dated February

27, 2014 to all of the parties.

I. ISSUES IN THE INQUIRY

Based on my reading of all of the Requests for Inquiry with the requisite attachments, I have

identified the following issues relevant to the consolidated inquiry:

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1. Whether the Public Body properly relied on and applied s. 16 of the FOIP Act

[reasonable expectation disclosure harmful to business interests of a third party] to

the information in the records.

2. Whether the Public Body properly relied on and applied s. 17 of the FOIP Act

[disclosure of personal information unreasonable invasion of privacy] to the

information in the records.

3. Whether the Public Body properly relied on and applied s. 21 of the FOIP Act

[reasonable expectation disclosure harmful to intergovernmental relations] to the

information in the records.

4. Whether the Public Body properly relied on and applied s. 24 of the FOIP Act

[reasonable expectation disclosure could reveal advice from officials] to the

information in the records.

5. Whether the Public Body properly relied on and applied s. 25 of the FOIP Act

[reasonable expectation disclosure harmful to economic and other interests of a

public body] to the information in the records.

6. Whether the Public Body properly relied on and applied s. 27 of the FOIP Act

[privileged information] to the information in the records.

7. Whether the Public Body properly removed some information in the records on the

basis the information was non-responsive to the request to access information.

8. Whether public interest under s. 32 of the FOIP Act is an issue in the inquiry.

This list may not be exhaustive. I encourage all parties to identify any additional issues in

their initial submissions. In addition, I reserve the right to identify further issues as the inquiry

proceeds.

II. RECORDS

No copies of the Record have been received and none are being requested at this stage.

The Public Body’s decision letters indicate that wherever it has withheld all or part of the

Record, it has claimed all or some of the exceptions listed above. The Public Body is asked

to confirm in its initial submission that the decision letters have been interpreted correctly.

For the purpose of this inquiry, I request that the Public Body provide an Index of Records

that identifies the exceptions claimed, in accordance with Adjudication Practice Note 1.

Consistent with the all-party agreement to consolidate, the Index is to detail the complete

Record that is responsive to both requests to access information, including all the exceptions

claimed. I refer the Public Body to the detailed lists provided with its decision in #F6525 and

its decision in #F6761, which could be used as the foundation for the Index.

The Index is to be provided to both Applicants and to the Commissioner’s Office when the

Public Body provides its initial submission.

[Emphasis in original]

The remainder of the Notice of Inquiry discussed procedural matters including the schedule for

the parties’ Submissions.

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In accordance with the schedule outlined in the Notice of Inquiry, the Applicants provided their

respective Initial Submissions on July 7, 2014 and July 9, 2014, and the Public Body provided its

Initial Submissions on August 6, 2014.

On August 14, 2014 the Preliminary Evidentiary Objection was submitted to the External

Adjudicator with a copy to all parties. The parties were also notified that they had three business

days to respond to the objection, in accordance with the Inquiry Procedures.

[On August 15, 2014, I corresponded with all parties requesting that they notify me and each

other of their intentions with respect to the Preliminary Evidentiary Objection and gave them

additional time to do so due to the Public Body’s counsel being unavailable. On August 29, 2014,

I received a letter from the other Applicant indicating that s/he was in agreement with the

objection, that s/he intended to rely on his or her co-Applicant’s legal arguments and that s/he

joined him or her in asking that the Opinion Letter be ruled inadmissible. A copy of the co-

Applicant’s letter was shared with the other parties.

On September 12, 2014, the Public Body filed its Response Submissions opposing the

Preliminary Evidentiary Objection raised by the Applicants. On September 26, 2014, the

Applicants filed their Reply Submissions.

I agreed with the parties that the schedule for the remaining Rebuttal Submissions from the

parties in the Inquiry would be put on hold pending a decision on the Preliminary Evidentiary

Objection being communicated to the parties.

[para 3]

Subsequent to the release of the 2014 Decision/Order regarding the PEO on December

31, 2014, the Inquiry was stayed pending the outcome of the judicial review application filed by the Public

Body, which has yet to be heard.

[para 4]

Unexpectedly, on June 10, 2016, the Public Body sent correspondence to the Information

and Privacy Commissioner [Commissioner] that included a portion of the Records at Issue [June 10, 2016

Records at Issue] and an Index for the 38 pages provided. The Public Body’s counsel advised that the

portion of the Records at Issue were being provided as a result of receiving new instructions from the

Ministry of Justice and Solicitor General that the same documents being provided to the Ethics

Commissioner be given to the OIPC. The instructions followed the release of the Iacobucci Review

Report who found that relevant records had not been provided to the Ethics Commissioner for his/her

investigation/inquiry into an ethics complaint regarding the selection process of the counsel retained to

conduct litigation to recoup smoking-related health care costs under the Crown’s Right of Recovery Act

[CRRA Litigation]. At paras. 4-7 of the 2017 Order, I referred to this new development as follows:

Unexpectedly, on June 10, 2016, counsel for the Public Body sent correspondence to the

Information and Privacy Commissioner [Commissioner] with respect to new instructions [s/he]

had received from the Ministry regarding the need to provide some of the Records at Issue to the

Commissioner’s Office. This came as a result of the Public Body having recently provided

documents to the Ethics Commissioner with respect to an ongoing investigation at that office

following the release of the Iacobucci Review Report that found important information had not

been provided to the Ethics Commissioner. The Public Body instructed its counsel to provide the

same documents to the Commissioner. The documents included a small portion of the Records

at Issue, a sizeable portion of those pages designated Non-Responsive, and some pages from a

different access to information request [2012-G-0102]. The portion of the Records at Issue

delivered on June 10, 2016 complied, in part, with my [2014] Decision/Order. The

correspondence from counsel for the Public Body was not shared with the Commissioner.

In accordance with office policy, the Public Body’s letter was brought to my attention

because, as the External Adjudicator, I continued to have conduct of this Inquiry.

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On June 17, 2016, I wrote to the parties acknowledging receipt of the Public Body’s June 10,

2016 correspondence and advising that as this Inquiry was not finished, the Public Body’s letter

to the Commissioner had been re-routed to me as the External Adjudicator and not given to the

Commissioner, who remains at arm’s length throughout any inquiry being heard by an External

Adjudicator. The Public Body was asked to share its letter with the Applicants, which it did on the

same day, without the accompanying records that were being withheld from the Applicants. After

the Public Body had provided the June 10, 2016 Records at Issue, several issues arose with

respect to the way in which the Public Body had defined the scope of the records in response to

the access to information requests, which issues only became known from the Public Body’s

June 10, 2016 correspondence. The parties were given an opportunity to make submissions to

me with respect to this new information. Thereafter, the issue of the Public Body unilaterally

defining the scope of the Records at Issue in a manner inconsistent with the Applicants’

access requests was referred to another forum, as outlined in my October 24, 2016

correspondence to the parties, advising all the parties that this issue, therefore, would not

be an issue during this phase of the Inquiry. The diversion caused by these revelations

resulted in unexpected delay in proceeding with this phase of the Inquiry dealing with the June

10, 2016 Records at Issue.

On November 16, 2016, I set out the scope of this phase of the Inquiry in a detailed letter to the

parties. I made it clear that this phase of the Inquiry is only to decide whether the Public Body

properly relied on and applied the exceptions it had claimed for the small portion of the records

provided to the External Adjudicator (June 10, 2016 Records at Issue). The Public Body’s

original access to information decisions (First Applicant: August 31, 2012 and Second Applicant:

September 21, 2012) concerned what was the complete Records at Issue at that time, which

included some of the June 10, 2016 Records at Issue, and read as follows:

564 pages of records were located in response to your request. Some of the records

requested contain information that is exempted from disclosure under sections 16, 17, 21, 24,

25 and 27 of the Freedom of Information and Protection of Privacy Act or contain information

non-responsive to your request. We have severed the exempted and non-responsive

information so that we could disclose to you the remaining information in the records.

[Decision/Order, at para. 11]

While this phase of the Inquiry only relates to the June 10, 2016 Records at Issue, it is important

to explain other reasons for delay in this phase of the Inquiry. Adjudicating this part of the

Inquiry has been challenging because during it the Public Body released additional

Records at Issue to the External Adjudicator and both Applicants on September 30, 2016,

committed various errors with respect to records’ numbering, produced multiple indices, and

referred to records in its Initial Submission [2016] that were not listed in the Amended Index for

the June 10, 2016 Records at Issue. These developments meant defining the parameters of this

phase of the Inquiry took some time. On a number of occasions, the confusion and mistakes

were pointed out to the Public Body who was given several opportunities to explain and clarify

these issues. On February 2, 2017 and April 7, 2017, the Public Body provided letters

acknowledging its errors and offering an explanation or recitation of former submissions with

respect to the renumbering. On January 19, 2017, the Public Body provided another portion of

the Records at Issue with another revised Index, which once again I accepted as partial

compliance with my [2014] Decision/Order. The parties were advised by my letter dated

March 23, 2017 that that portion of the records will not be dealt with in this phase of the

Inquiry but will form part of the main Inquiry when it continues, after the disposition of the

June 10, 2016 Records at Issue is completed.

[Emphasis added]

[para 5]

Notwithstanding that the majority of the 38 pages of the June 10, 2016 Records at Issue

had a legal exception applied, the Public Body provided these Records at Issue to me including those

Records at Issue where s. 27(1)(a) had been claimed. When the Public Body provided this portion of

records, including those over which legal privilege had been asserted, it laid out the conditions on which

10

they were being provided to me in its June 10, 2016 cover letter. The Public Body sent the letter to the

Information and Privacy Commissioner Clayton [Commissioner], but the letter was immediately

intercepted and forwarded to me as the External Adjudicator assigned to this Inquiry. The

correspondence read as follows:

I am writing to follow up on one aspect of Order F2014-50 issued by the External

Adjudicator, Dulcie McCallum (the "External Adjudicator"), on 31 December 2014 (the "Order ") .

BACKGROUND

In response to certain access applications under the Freedom of Information and Protection of

Privacy Act (the "FOIP Act"), Alberta Justice and Solicitor General (the "Ministry") declined to

provide certain records to the applicants pursuant to section 27(1) of the FOIP Act. Section 27(1)

excepts from disclosure records which are protected by any legal privilege, including solicitor-

client privilege.

The applicants did not accept the Ministry's decision, and requested the Information and Privacy

Commissioner (the "IPC") to conduct an inquiry to determine whether the records were properly

withheld.

Because of a conflict of interest, you delegated your responsibilities as IPC to the External

Adjudicator.

The External Adjudicator subsequently issued the Order referred to above. The Order required

the Ministry to produce the records with respect to which the Ministry asserts legal privilege,

including solicitor-client privilege, so that the External Adjudicator could determine whether

privilege and other exceptions to disclosure were properly claimed.

The Ministry declined to provide the records in question to the External Adjudicator, and brought

an application for judicial review to set aside the Order. One of the issues in the application for

judicial review is whether section 56(3) of the FOIP Act properly interpreted authorizes the IPC (or

the External Adjudicator acting as the IPC's delegate) to require production of records with

respect to which solicitor-client privilege is asserted. The current law is set out in University of

Calgary v. J.R., 2015 ABCA 118, which holds that the IPC does not have this authority. As you

know, that decision is currently before the Supreme Court of Canada, and the Ministry's

application for judicial review has been adjourned pending issuance of the Supreme Court's

decision.

SUBSEQUENT EVENTS

Because of subsequent events involving an investigation by the Ethics Commissioner, the

Ministry has recently provided the Office of the Ethics Commissioner with certain records that

were also the subject of past FOIP requests.

The Ministry has instructed me to provide the enclosed records to you so that the External

Adjudicator can in due course make a determination about whether they are excepted from

production to the applicants for the reasons asserted by the Ministry (including but not limited to

solicitor-client and other legal privilege pursuant to section 27(1) of the FOIP Act).

In accordance with Adjudication Practice Note 1, I am enclosing two copies and an index of the

enclosed records.

Please note that some of the enclosed records were non-responsive to the applicants’ requests in

this case. The applicants in this case did not request drafts (99-107; 113-119; 120; 565; 566-

569).(1) One record (32) was created after the time frame covered by the application.(2)

Nevertheless, because the Ministry has provided these records to the Office of the Ethics

11

Commissioner, they are now being provided to your office. Please also note that these records

may contain information that would be required or authorized to be withheld had these records

been requested under section 7(1) of FOIP.

NON-WAIVER

The Ministry is providing the enclosed records to your office on the following understanding:

(a) The provision of the enclosed records to your office is without prejudice to the Ministry's

position that the Ministry is not required under the proper interpretation of section 56(3) of the

Act to produce any records to your office with respect to which the Ministry asserts legal

privilege, including solicitor-client privilege.

(b) The Ministry does not waive any legal privilege, including solicitor-client privilege,

vis-à-vis your office (or External Adjudicator) with respect to any of the other records

which the Ministry has declined to produce to the External Adjudicator.

(c) The Ministry does not waive any exception (including but not limited to solicitor-

client and any other legal privilege) to the disclosure of any of the enclosed records to the

applicants. The Ministry continues to assert that the enclosed records are excepted from

disclosure to the applicants.

Please let me know if you have any questions or concerns.

Footnotes:

1. For your information, a different FOIP request (2012-G-0102) did request drafts; the Ministry

responded to that request; and there was no request for a review in that case.

2. The Minister made the decision to select [name of law firm group] on 14 December 2010; the

Ministry took the position that anything after 31 December 2010 was non-responsive; Record

32 was created in January 2011.

[Emphasis in original and added]

[para 6]

I accepted the June 10, 2016 Records at Issue (38 pages) on the basis outlined by the

Public Body. In other words, by providing these records to me, I accepted them on the basis that the

Public Body had not waived legal privilege over those Records at Issue where it had applied s. 27(1)(a) to

the June 10, 2016 Records at Issue.

[para 7]

On July 18, 2017, I released Order F2017-61 [2017 Order] that dealt solely with the

disposition of the June 10, 2016 Records at Issue. Shortly thereafter, the Public Body filed an application

for judicial review, which has yet to be heard. The June 10, 2016 Records at Issue are not at issue as

this Inquiry continues as they are the subject of the 2017 Order. This point was made clear in the 2017

Order where, at para. 7, I stated the following:

While this phase of the Inquiry only relates to the June 10, 2016 Records at Issue, it is important

to explain other reasons for delay in this phase of the Inquiry. Adjudicating this part of the Inquiry

has been challenging because during it the Public Body released additional Records at Issue to

the External Adjudicator and both Applicants on September 30, 2016, committed various errors

with respect to records’ numbering, produced multiple indices, and referred to records in its Initial

Submission [2016] that were not listed in the Amended Index for the June 10, 2016 Records at

Issue. These developments meant defining the parameters of this phase of the Inquiry took

some time. On a number of occasions, the confusion and mistakes were pointed out to the

Public Body who was given several opportunities to explain and clarify these issues. On

February 2, 2017 and April 7, 2017, the Public Body provided letters acknowledging its errors and

offering an explanation or recitation of former submissions with respect to the renumbering. On

January 19, 2017, the Public Body provided another portion of the Records at Issue with

12

another revised Index, which once again I accepted as partial compliance with my

Decision/Order. The parties were advised by my letter dated March 23, 2017 that that

portion of the records will not be dealt with in this phase of the Inquiry but will form part of

the main Inquiry when it continues, after the disposition of the June 10, 2016 Records at

Issue is completed.

[Emphasis added]

[para 8]

Again, unexpectedly, on January 19, 2017, during the course of the phase of the Inquiry

regarding the June 10, 2016 Records at Issue, the Public Body provided another portion of the Records

at Issue to me (not to the Applicants) and another updated Index of Records at Issue. In this instance,

the Public Body did not provide any Records at Issue over which it had claimed a legal privilege exception

but did provide an explanation in its cover letter to elucidate this next development, which January 19,

2017 letter read as follows:

Re: Inquiry #F5625 [sic]/#F6761

Following the decision of the Supreme Court of Canada in the University of Calgary case, the

Ministry has reviewed the Index of Records.

I am enclosing an updated "Index of Records (Exchanged Among the Parties)" which identifies:

(a) Records with respect to which the Ministry is not asserting solicitor-client or other legal

privilege (although the Ministry asserts other exceptions to disclosure). These Records

are indicated with light burgundy shading in the enclosed Index.

(b) Records which the Ministry continues to deem to be non-responsive to the access

requests. These Records are indicated by "Non-responsive" in the enclosed Index. In

accordance with the Public Body's decision to expand the time frame of the Records

requested and to include drafts, some other Records that the Ministry formerly deemed

to be non-responsive on the basis of being outside the requested time frame or drafts

have now been included in the Index, with any applicable FOIPP exceptions applied. As

indicated in the Index, some of the non-responsive records are protected by solicitor-

client or other legal privilege.

The Ministry is providing a copy of this letter and the updated Index to the [names of the

Applicants], who are parties to the Inquiry.

The Ministry is providing to you (but not to the parties to the Inquiry) with two copies of the

Records identified in (a) above, as well as those non-responsive records identified in (b) above

which are not protected by solicitor-client or other legal privilege.

With respect to these records, please note the following:

1.

2.

The numbering in the revised Index refers to the ABJ number at the bottom of each

page, and not to the number at the bottom right of each Record.

With respect to Record 1812, the Ministry had originally claimed exemptions under section

25(l)(c), section 27(1)(a), section 27(1)(b) and section 27(1)(c). Upon further review, the

Ministry has deemed this Record to be non-responsive, and has included it in the

attached Records for your review.

3.

In the course of its review after the University of Calgary case, the Ministry noted that

names of lawyers (or law firms) that submitted an expression of interest had

previously been severed under section 17. If you find that section 17 does not apply

in these circumstances, the Ministry submits that section 16 also applies. Disclosing

13

the name of the lawyers or law firms that submitted an expression of interest would

reveal commercial information that was supplied in confidence.

The Ministry would be pleased to respond to any questions you might have about the revised

Index.

[Emphasis added]

[para 9]

On March 8, 2017 I acknowledged receipt of the portion of the Records at Issue and the

updated Index in correspondence to all parties in the Inquiry, the relevant portion read as follows:

Re: Inquiry #F6525/#F6761 – Updated Index of Records and Disclosure of a portion of the

Records at Issue to the External Adjudicator

The purpose of this letter is threefold: to acknowledge receipt of the updated Index of Records

and a portion of the Records at Issue from Alberta Justice and Solicitor General (Public Body), to

confirm what has been received from the Public Body, and to update the parties regarding the

continuation of this Inquiry.

By letter dated November 15, 2016, I extended the anticipated completion date for this Inquiry to

November 30, 2017 to allow the Inquiry to proceed with respect to the Records at Issue provided

by the Public Body to the External Adjudicator on June 10, 2016. The extension would also allow

the Inquiry to proceed once the Public Body made its decision with respect to complying with my

Decision F2014-D-03/Order F2014-50 by providing a complete set of the Records at Issue in the

Inquiry. It was anticipated that the Public Body’s decision would be made either after a ruling that

was expected from the Supreme Court of Canada and/or the Judicial Review application of my

Decision F2014-D-03/Order F2014-50 was completed or resolved.

…

[O]n November 25, 2016, the Supreme Court of Canada (SCC) issued two decisions: Alberta

(Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 and Lizotte v.

Aviva Insurance Company of Canada, 2016 SCC 52.

On January 19, 2017, the Public Body corresponded with me as the External Adjudicator

with copies to the parties indicating that following the decision in the University of Calgary

case, it reviewed the Index of Records for this Inquiry. As a result of that review, the Public

Body made a decision to provide an updated Index of Records and an additional portion of

the Records at Issue. The updated Index [January 2017] for both case files, was provided to me

and the other parties. The Public Body also provided me, as the External Adjudicator, with two

copies of another portion of the Records at Issue for both case files, excluding those

Records at Issue over which the Public Body has claimed the solicitor-client or other legal

privilege exceptions, following the rulings in the SCC. The provision of this additional

portion of the Records at Issue complies, in part, with my Decision F2014-D-03/Order

F2014-50, as did the portion of the Records at Issue provided to me on June 10, 2016.

For clarification, the Records provided to me by the Public Body on January 19, 2017 do

not form part of the Inquiry with respect to the June 10, 2016 Records at Issue that is

presently underway. Once I have issued my decision on the latter, I will advise the parties

of the next steps for this Inquiry with respect to the portion of the Records at Issue that

were provided to me in January 2017.

[Emphasis added]

[para 10]

On March 16, 2017 the First Applicant replied to my correspondence, the relevant portion

of which read as follows:

…

[Name of the First Applicant] takes the position that the matter of the contingency fee agreement

cannot reach an acceptable conclusion until it makes rebuttal submissions to the Public Body's

14

Initial Submission dated August 6, 2014. Therefore, [name of the First Applicant] requests that the

next steps for the Inquiry include the opportunity to make such rebuttal submissions.

The Notice of Inquiry dated June 6, 2014, provided the Applicants with the opportunity to make

rebuttal submissions to the Public Body's Initial Submission. On October 8, 2014, you suspended

the rebuttal submission deadlines and advised that "[t]he schedule for the exchange of rebuttals

in the main inquiry will be reset and communicated to the parties after the matter of the

Preliminary Evidentiary Objection is concluded." That schedule has not yet been reset and

communicated to the parties.

[Name of the First Applicant] has relied on its right of rebuttal, to be exercised following the yet to

be released revised schedule, in determining appropriate content to include in its submissions

and correspondence in this Inquiry.

By way of example, [name of the First Applicant]’s submissions in this phase of the Inquiry

(regarding the June 10, 2016 Records at Issue) were expressly made on the basis of its

understanding that the contingency fee agreement was not at issue at this stage of the Inquiry;

therefore, the matter need not be addressed at length in its submissions dated January 15, 2017.

The Public Body confirmed this understanding to be correct in paragraph 9 of its Reply

Submission with Respect to the June 10, 2016 Records.

Accordingly, [name of the First Applicant] respectfully submits that the Public Body's failure to

produce the contingency fee agreement in response to [name of the First Applicant]'s access to

information request cannot be determined until the completion of written argument (namely,

rebuttal submissions) on the issue as contemplated in the Notice of Inquiry and subsequent

correspondence and direction.

We look forward to receiving the Public Body's response to your letter dated March 1, 2017,

following [name of counsel] return to the office. We appreciate the opportunity you intend to

provide us to reply to that response and we intend to exercise that opportunity once we receive

and review the same.

[para 11]

On March 23, 2017 I responded to acknowledge receipt of the First Applicant’s

correspondence, copying my correspondence with all of the parties, the relevant portion of which read as

follows:

Re: Inquiry #F6525/#6761 - Response to Questions Raised by Applicant [name of First Applicant]

in March 16, 2017 Correspondence

…

I am grateful you took the time to write as it gives me the opportunity to correspond with all the

parties in order to clarify our process to minimize any misunderstandings. I am sorry if my letters

of March 1 and 8, 2017 were unclear in any way. As you can appreciate, this Inquiry has perhaps

not followed the usual course and, therefore, at every stage, it is imperative that the process of

next steps be clear.

I begin by putting your recent query into context. Subsequent to my Decision F2014-D-03/Order

F2014-50 released December 31, 2014, the Public Body elected to file for Judicial Review. As no

Records at Issue had been provided to me by the Public Body and the Preliminary Evidentiary

Objection [PEO] was now before the Courts, the Inquiry was put on hold pending the disposition

of the Judicial Review. This explains why the schedule for the Rebuttal Submissions in response

to the Public Body’s Initial Submission dated August 6, 2014 that preceded the PEO being raised

was never re-set.

On June 10, 2016, the Public Body unexpectedly provided a small portion of the Records at Issue

[and other records related to another access to information request and the investigation by the

Ethics Commissioner] to me. This came as a result of the Public Body giving new instructions to

15

its counsel, [name of counsel], with respect to documentation that had not been provided to the

Ethics Commissioner that were to be shared with both the Ethics Commissioner and the Office of

the Information and Privacy Commissioner. [See paras. 33, 76, 78 of the Iacobucci Report; refer

to [name of counsel]’s letter to parties dated June 10, 2016.]

At that point, as you know, I corresponded with the parties on July 5, 2016 laying out the

schedule for the exchange of submissions in relation to the small portion of the Records at Issue

that had been provided to me by the Public Body. The Initial Submissions were exchanged on

December 14, 2016 [Public Body], January 5, 2017 [name of Second Applicant], and January 15,

2017 [name of First Applicant] and, lastly, the Reply on January 30, 2017 [Public Body].

After the parties’ Initial Submissions were complete, the Public Body, specifically on January 19,

2017, advised that as a result of two rulings on legal privilege being released by the Supreme

Court of Canada [SCC], notably on November 25, 2016, it decided to review and again amend

the Index of Records and provide another portion of the Records at Issue to me. No further

explanation was provided by the Public Body for its decision in this regard. I have confirmed in

writing with all parties that the release of these two parts of the Records at Issue are in partial

compliance with Order F2014-50. As was the case for the June 10, 2016 portion of Records at

Issue, pages 551-564 that the Public Body has attested to being the Contingency Fee Agreement

[CFA] were not included in the January 19, 2017 portion of the Records at Issue provided to me.

It is my understanding that the Public Body, in and around the same time period

[January/February 2017], adjourned its application for Judicial Review sine die.

…

6. Once that decision/order regarding the June 10, 2016 Records at Issue is released, I

intend to continue with the Inquiry with respect to the entire responsive Records at Issue and

the new Index provided on January 19, 2017. I am making the assumption that these are

all the Records at Issue the Public Body intends to provide to the External Adjudicator

[the CFA pages being the one exception] and that the January 2017 Index of Records

is the final index [subject to any changes made once the renumbering is clarified; the

CFA pages have already been included by the Public Body and purportedly are properly

numbered]. On this basis, the Inquiry that began in 2014 will continue, with the anticipated

completion date on or before November 30, 2017.

7. In this regard as stated above, the Public Body has already had the opportunity to provide

its Initial Submissions [2014]. The Applicants will then be given the opportunity to provide

their Rebuttal Submissions [2014] regarding the Records at Issue in their entirety, followed by

the Public Body’s Reply. Once the decision/order regarding the June 10, 2016 portion of

Records at Issue has been released, I will communicate with all parties setting out a schedule

for when the Applicants’ Rebuttal Submissions [2014] and the Public Body’s Reply [2014] are

to be provided.

8. While the above represents the proposed course of action over the coming months, as

mentioned above, adjustments may be required depending on how the Public Body

decides to proceed with respect to the s. 16 exception and notice to potential third

parties.

I trust this allays any concerns with respect to your opportunity to provide your Rebuttal

Submissions [2014], the provision of which was suspended by me on October 8, 2014, and also

provides an adequate response to the questions you raised in your March 16, 2017

correspondence.

[Emphasis added]

[para 12]

On September 20, 2017, following the release of the 2017 Order on July 18, 2017, I

issued the Notice of Continuation of Inquiry [2017 Notice] to all the parties, which read as follows:

16

Re: Inquiry #F6525/#F6761: Notice of Continuation of Inquiry

As the parties are aware, I have issued two Orders in this Inquiry: Decision F2014-D-03/Order

F2014-50 [2014 Decision/Order] and Order F2017-61 [2017 Order]. Details of what has taken

place in each of the phases of this Inquiry are laid out in detail in those decisions.

Overview

A brief overview of the history of the Inquiry to date is as follows:

1. On August 31, 2012 Alberta Justice and Solicitor General [Public Body] released its

decision in response to Applicant [name of the First Applicant]’s access to information

request. The decision letter indicated the Records at Issue were made up of a total of

564 pages. On September 21, 2012 the Public Body issued the same decision letter to

Applicant [name of Second Applicant]. A total of 98 pages of records were disclosed to

both of the Applicants.

2. On June 6, 2014, I issued a Notice of Inquiry in the subject Inquiry. In that regard, on July

7, 2014 Applicant [name of Second Applicant] provided his/her 2014 Initial Submission;

on July 9, 2014 Applicant [name of First Applicant] provided its 2014 Initial Submission;

and on August 6, 2014 the Public Body provided its 2014 Initial Submission, which

included an Index [2014 Index] for the 564 pages of Records at Issue [Public Body 2014

Initial Submission, at Tab 1].

3. Following the exchange of Initial Submissions, on August 14, 2014 Applicant [name of

First Applicant] filed a formal Preliminary Evidentiary Objection [PEO] with respect to

evidence proffered by the Public Body as part of its Initial Submission. On August 29,

2014 Applicant [name of Second Applicant] agreed with the PEO being raised and

indicated his/her intention to rely on Applicant [name of First Applicant]’s submissions in

that regard.

4. In a letter dated August 15, 2014, I laid out a Schedule for Submissions with respect to

the PEO. After I received the PEO submissions, which were exchanged between the

parties, I issued the 2014 Decision/Order. The Public Body filed an application for

Judicial Review of the 2014 Decision/Order.

5. Unexpectedly, the Inquiry was re-activated on June 10, 2016 when the Public Body

provided me with 38 pages of records in partial compliance with my 2014

Decision/Order, the majority of which pages had not been identified by the Public Body

as part of the Records at Issue listed in the 2014 Index. During the course of this phase

of the Inquiry, an issue arose when the Public Body revealed it had designated part of

the June 10, 2016 Records at Issue as Non-Responsive based on how it had defined the

temporal scope of the access to information requests. After informing Commissioner

Clayton by letter dated October 24, 2016, a copy of which letter was shared with the

parties, I informed them that the issue of the Non-Responsive designation [Issue #7 in

the Notice of Inquiry] had been referred to another forum and would, therefore, not be an

issue in the June 10, 2016 phase of the Inquiry. During this phase of the Inquiry, I was

advised the Public Body’s application for Judicial Review of the 2014 Decision/Order had

been adjourned sine die.

6. Following the exchange of submissions between the parties on the remaining issues with

respect to 35 pages of the June 10, 2016 Records at Issue, I issued Order F2017-61 on

July 18, 2017. Since the initial 38 pages were provided to me, the Public Body released 3

of the 38 pages to the Applicants (details outlined below). The Public Body has filed an

application for Judicial Review of the 2017 Order.

17

7. On September 30, 2016, during the exchange of submissions with respect to the June

10, 2016 Records at Issue, the Public Body provided an unsolicited updated Index

for the Records at Issue [2016 Index] and disclosed 251 pages of the Records at

Issue to me and the Applicants, of which 97 pages had been included in the 2012

disclosure to the Applicants (details outlined below). When this 2016 Index was

provided, this was the first notice given by the Public Body that the responsive

Records at Issue, which the Public Body had tallied at 564 pages in its 2014

access to information decisions, now totalled 2,570 pages. In its covering letter, the

Public Body indicated that the accompanying September 30, 2016 Index was for pages

1-2568; but the Index actually lists pages 1-2570. The Index includes the pages of the

Records at Issue that have been disclosed to the Applicants shown in the Index as

“RELEASED.” As the Inquiry reviewing the June 10, 2016 Records at Issue continued, I

made it patently clear to the parties that the updated 2016 Index, the new

disclosure of records to the Applicants, and the new records added to the total

pages of Records at Issue did not form part of the phase of the Inquiry reviewing

the June 10, 2016 Records at Issue [35 pages].

On January 19, 2017, the Public Body again corresponded with me, while the June 10,

2016 phase of the Inquiry was ongoing, to advise that following the ruling in the Alberta

(Information and Privacy Commissioner) v. University of Calgary [U of C] regarding legal privilege

in the Supreme Court of Canada, the Ministry had reviewed its 2014 Index for this Inquiry. The

result of that review appears to be that the Ministry decided to produce and provide another

updated Index of the Records at Issue for case files #F6525/#F6761 [2017 Index], a copy of

which correspondence and updated 2017 Index were provided to the Applicants by the Public

Body on the same date. With respect to the January 19, 2017 correspondence from the Public

Body, I highlight the following:

1

The Public Body provided me with two copies of additional pages of the Records

at Issue [40 pages] referred to in its correspondence as excluding those records

over which a legal privilege exception had been claimed.

2. The 2017 Index indicated that the total for the Records at Issue remained at 2,570 pages

(same as in the 2016 Index) and included records over which the Ministry was not

asserting any legal privilege (provided to the External Adjudicator but not the Applicants)

and records which the Ministry continued to deem as Non-Responsive but which it was

including as part of the Records at Issue (for which the Public Body has also claimed a

legal privilege exception for some pages. The latter were not provided to the External

Adjudicator).

3. There was no further disclosure of records to the Applicants.

4. The Public Body indicated that the new 2017 Index was now employing ABJ

numbers and not the numbers previously found at the bottom right of each page.

By letter dated March 8, 2017 I acknowledged receipt of the additional portion of the Records at

Issue as further partial compliance with my 2014 Decision/Order. In my letter dated March 23,

2017, I stressed to the parties that the portion of the Records at Issue provided on January 19,

2017 would not be considered during the June 10, 2016 phase of the Inquiry but would form part

of the main Inquiry when it continued.

The Inquiry is now positioned to continue with respect to the new complement of the

Records at Issue including the 40 pages of the records provided to the External

Adjudicator on January 19, 2017 (but excluding the 35 pages making up the June 10, 2016

records, the subject of the 2017 Order). Prior to the PEO and the 2014 Decision/Order that

followed, the Public Body and the Applicants had each provided their respective Initial

Submission in the Inquiry for the original 564 pages. The purpose of this letter is to set out

18

the parameters for the continuation of the Inquiry regarding the portion of the 2,570 pages of the

Records at Issue which have not been the subject of review.

Records at Issue

In addition to providing portions of the Records at Issue to me in compliance with my 2014

Decision/Order, the Public Body has disclosed some of the records to both of the Applicants. The

following summarizes what has been provided by the Public Body to the Applicants and the

External Adjudicator:

1.

Records Disclosed to the Applicants

Decision Letters of August 31,

2012/September 21, 2012:

98 pages of 564 total pages of records

June 10, 2016:

0 pages [2 pages partially redacted in original

disclosure to Applicants]

September 30, 2016:

251 pages of 2,570 total pages of records [which

included 2 of 3 newly disclosed pages from the

June 10, 2016 records and also included 97 of the

98 pages originally disclosed in 2012; 154 pages of

the 251 were newly disclosed pages to the

Applicants]

January 19, 2017:

June 15, 2017:

0 pages

1 page; one of 3 newly disclosed pages from the

June 10, 2016 records [page 120], which it appears

the Public Body intended to release in September

2016 but did not in fact disclose to the Applicants

until this date

2.

Records Provided to the External Adjudicator:

Outset of Inquiry 2014:

Post 2014 Decision/Order:

June 10, 2016:

0 pages

38 pages [ultimately 35 pages as the Public Body

disclosed 2 pages to both Applicants in September

2016 and 1 page in June 2017 prior to my 2017

Order]

September 30, 2016:

January 19, 2017:

251 pages [the same 251 pages given to both of

the Applicants on this date]

40 pages of 2,570 total pages of records [included 2

pages of the June 10, 2016 Records at Issue,

therefore, a total of 38 new pages were provided on

this date]

19

Summary of totals of the Records at Issue

Summarizing, for the complete Records at Issue made up of 2,570 pages, the Applicants have

received a total of 253 pages of records [98 pages August/September 2012, 154 pages

September 2016 and 1 page June 2017] and the External Adjudicator has received a total of 73

pages of records [35 pages June 2016 and 38 pages January 2017].

To be clear, the Inquiry will go forward to review all remaining 2,353 pages, of which I have a total

of 73 pages, less the 35 pages from the June 10, 2016 Records at Issue, which have been

reviewed and for which a decision has been made. It may be helpful to note that with respect to

page counts, there are multiple examples of pages partially disclosed to the Applicants but the

unredacted pages have not been provided to me, as the Public Body has claimed s. 27 for the

severed information.

Other than 33 of the 35 pages of the June 10, 2016 Records at Issue that included pages over

which the Public Body had claimed a s. 27 legal exception, the Public Body has not provided me

with any other page or part of a page where it has applied the s. 27 legal privilege exception(s).

Indices

Since the outset of this Inquiry, the Public Body has produced a number of indices identified as

being an index for all the Records at Issue for #F6525/#F6761, which are listed below:

Tab 1 2014 Initial Submission:

564 pages

“FOIP Request 2012-G-0060

- List of exemptions applied

to records”

September 30, 2016 Index of Records:

2,570 pages [cover letter

states index is for 1 to 2,568

pages]

January 19, 2017 Index of Records:

2,570 pages

[Records withheld under non s. 27 FOIP exceptions highlighted]

April 7, 2017 Index of Records:

2,570 pages

[June 10, 2016 Records at Issue highlighted]

In regard to the Records at Issue and the Indices, the Public Body is asked to confirm the

following as part of its submissions (the schedule for which is outlined below):

1. After it provided 40 pages of new Records at Issue to me in January this year, the Public

Body produced another Index in April 2017. Please confirm that the 2017 Index

produced on January 19, 2017 is the Index for the Records at Issue, which Index is the

one that the Applicants and I should refer to during the continuation of this Inquiry as the

“2017 Index.” I believe the Public Body produced the April 2017 Index during the earlier

phase of the Inquiry as a convenience to the parties and myself to highlight where the

June 10, 2016 Records at Issue appeared in the index for all the records.

2. Please confirm that the last count of 2,570 pages, listed in the January 2017 Index,

constitutes the complete responsive Records at Issue for #F6525/#F6761. Specifically,

that the count of 2,570 pages includes the 564 pages from the 2012 Index, the June 10,

2016 Records at Issue and all of the pages disclosed or partially disclosed, all of which

20

the Public Body has accounted for in the 2017 Index. In other words, please confirm

there are no outstanding records that are responsive to the Applicants’ access to

information requests unaccounted for in the 2017 Index.

3. Please confirm that the total Records at Issue for the purpose of the remainder of the

Inquiry is 2,353 pages (calculated as 2,570 total pages in 2017 Index less 182 pages

fully disclosed to the Applicants and less 35 pages subject of the 2017 Order), of which

73 pages have been provided to me.

Issues in the Inquiry

The original Notice of Inquiry listed the following as the relevant issues:

1. Whether the Public Body properly relied on and applied s. 16 of the FOIP Act

[reasonable expectation disclosure harmful to business interests of a third party] to the

information in the records.

2. Whether the Public Body properly relied on and applied s. 17 of the FOIP Act [disclosure

of personal information unreasonable invasion of privacy] to the information in the

records.

3. Whether the Public Body properly relied on and applied s. 21 of the FOIP Act

[reasonable expectation disclosure harmful to intergovernmental relations] to the

information in the records.

4. Whether the Public Body properly relied on and applied s. 24 of the FOIP Act

[reasonable expectation disclosure could reveal advice from officials] to the information

in the records.

5. Whether the Public Body properly relied on and applied s. 25 of the FOIP Act

[reasonable expectation disclosure harmful to economic and other interests of a public

body] to the information in the records.

6. Whether the Public Body properly relied on and applied s. 27 of the FOIP Act [privileged

information] to the information in the records.

7. Whether the Public Body properly removed some information in the records on the basis

the information was non-responsive to the request to access information.

8. Whether public interest under s. 32 of the FOIP Act is an issue in the inquiry.

On the dates referred to in the above Overview, all the parties provided their 2014 Initial

Submission with respect to the Issues. No additional issues were raised by the parties in their

respective 2014 Initial Submission (prior to the PEO being raised). There has been a number of

significant developments since the parties’ respective 2014 Initial Submissions were exchanged,

highlights of which include:

1. Following the release of the Iacobucci Review Report with respect to the Ethics

Commissioner’s Office, the Public Body produced the June 10, 2016 Index and 38 pages

of records to the External Adjudicator. With regard to the June 10, 2016 Records at

Issue, the Public Body has since disclosed 3 pages to the Applicants and 35 pages were

the subject of my 2017 Order.

2. In November 2016, the parties were advised that Issue #7 in the Notice of Inquiry had

been referred to another forum and, therefore, would not be considered in the Inquiry

when it continued.

3. In September 2016, the Public Body produced an Index showing the volume of the

Records at Issue had expanded from 564 pages to 2,570 pages.

21

4. In November 2016, the Supreme Court of Canada released two significant decisions

regarding legal privilege: U of C and Lizotte v. Aviva Insurance Company of Canada

[Lizotte]. The Public Body indicated that the U of C decision prompted it to review its

Index of Records and provide additional pages of the Records at Issue to me in January

2017.

The following is important information for the parties to review with respect to the forthcoming

submissions (the schedule for which is outlined below):

1. The disparity in the total number of pages of records given to me [73 pages] compared

to the total pages in the Records at Issue [2,570 pages] is significant. The central

reason for this is because the Public Body has elected not to provide any additional

records, or parts of any record, over which it has claimed a legal privilege exception.

Based on the new decisions from the Supreme Court of Canada, it is open to a public

body to make that choice as it is not compelled to provide the records to the

Commissioner’s Office. However, as a result, that means that the Public Body must

provide me, as the decision-maker, with submissions that include adequate descriptions

of the records and sufficient evidence to meet its burden that a legal privilege exception

applies to any particular record or part of a record.

2. With respect to evidence submitted in its 2014 Initial Submission regarding the

applicability of legal privilege, the Public Body provided two affidavits: one from the FOIP

Coordinator and one from a FOIP Advisor for Alberta Justice and Solicitor General.

While this is useful evidence, the Public Body must meet the standard set out by the

Alberta Court of Appeal in ShawCor (referred to by the Supreme Court of Canada in U of

C as the relevant authority in Alberta) with respect to what is required under the Alberta

Rules of Court relating to the content of an affidavit of records where a party claims

privilege.

3. On December 15, 2016, following the U of C decision in the Supreme Court of Canada,

the Commissioner developed, and made public, a Privilege Practice Note [PPN] to

replace its former Solicitor-Client Privilege Adjudication Protocol, a copy of which PPN is

attached. In this Inquiry, the Public Body continues to object to the production of any

further of the Records at Issue over which it has claimed any legal privilege pursuant to

s. 27. Therefore, it is of particular importance for the Public Body to heed the contents of

the PPN to ensure it provides sufficient evidence to support all claims of privilege. In

anticipation of a possible response that the PPN is a mere practice note and has no legal

authority, I would remind the Public Body that the PPN is based on the Alberta Rules of

Court requirements, referred to by the Supreme Court of Canada.

4. On the basis of the above, I want to emphasize the importance of the need for the Public

Body to provide the following evidence:

A.

An affidavit or affidavits of the Records at Issue over which any legal privilege

has been claimed from the individual, identified in the Records at Issue and in

the records disclosed to the Applicants as “lead in-house counsel” in regards to

the recovery of health care costs associated with tobacco litigation (refer to

page #1057/ABJ #1726 disclosed by the Public Body to the Applicants and the

External Adjudicator on September 30, 2016 though incorrectly described in the

2016 Index, corrected in the 2017 Index as RELEASED);

B. An affidavit or affidavits of the Records at Issue over which any legal privilege

has been claimed from the individuals, who are identified in the Records at Issue

and in the records disclosed to the Applicants as senior government employees,

who may be lawyers but are not described or referred to as such, but who are

privy or party to the information in the Records at Issue. In that regard, it is

22

important for the Public Body to heed the evidentiary requirements set out in the

Pritchard v. Ontario (Human Rights Commission) [Pritchard] ruling in the

Supreme Court of Canada. In the Pritchard decision, the Court addressed the

issue of government “lawyers” working within government from whom advice is

often sought but which does not always give rise to legal privilege. The Pritchard

decision is clear that more evidence is required to support a claim of legal

privilege to distinguish from when policy advice is being given; and

C. For the most part, the description of the records in the 2017 Index continue to

take a minimalist approach. Descriptions should go beyond simply stating the

type of record: document, email, briefing note. Each affidavit to be provided (as

outlined above), therefore, needs to include a Schedule in which the Public

Body lists the records or bundle of records for which privilege is claimed along

with a description, even if brief, for each record or bundle. In other words, a

brief description, which will suffice, or a more thorough description, which would

be preferred. Simply referring to any record by type, for example, “Email”, will

not be adequate. The record must be described in sufficient detail to

enable those who do not have access to the page or bundle of records to

understand what it contains, taking care not to reveal any information that

is privileged. The details to provide in the descriptions, where applicable,

include:

* the type of record contained on each page;

* the relevant dates for each page;

* the correspondents involved, including to whom the information was

forwarded or copied, and their position or role;

* whether the record is stamped “Confidential” or “Privileged”;

* whether any Outlook sensitivity feature has been activated;

* whether the record is marked draft or final;

* where legal advice was given or sought; and

* where the legal advice given was later discussed.

5. Should the Public Body attempt to continue to rely on the unsworn letter report [dated

July 2, 2014] that was submitted as part of its 2014 Initial Submission (held to be

inadmissible evidence in the 2014 Decision/Order) and fail to comply with the evidentiary

requirements outlined above, I propose to add the following as Issue #9 in the Inquiry:

Whether the release of a complete unprotected copy of the Records at Issue by the

Public Body to a third party (former judge), without any legislative or contractual

protection of the Records at Issue, in order to submit a non-legal opinion, unsworn

letter report “as to the nature of documents which the Province says are privileged”,

which third party the Public Body did not proffer or qualify as an expert, constitutes

waiver by the Public Body of the legal privilege it has claimed over the majority of

pages of the Records at Issue.

Due to the significant developments since the parties provided their 2014 Initial Submissions

(outlined above) and given the Public Body’s overall reliance on legal privilege exception(s) for

the bulk of the 2,570 pages of the Records at Issue (none of which are before me to review), I am

setting out a new Schedule of Submissions in the Inquiry. This new Schedule requires that the

Public Body provide a Supplementary Initial Submission, giving it the opportunity to meet

its burden of proof with respect to its reliance on the legal privilege exceptions. Having

this opportunity will enable the Public Body to meet the evidentiary requirements in the

Alberta Rules of Court, as set out by the Alberta Court of Appeal in the ShawCor decision,

23

and laid out in the PPN, thereby assisting me in assessing the validity of the claimed

privilege. Without the detailed descriptions and the affidavits of the Records at Issue, in

the absence of having the opportunity to review the records themselves, it will be very

difficult, if not impossible, to make a decision as to whether the s. 27 legal exceptions

have been properly relied on and applied.

[Emphasis added]

[para 13]

On September 21, 2017, the Second Applicant raised a question (by email) as to whether

the author of the Opinion Letter (part of the Public Body’s Initial Submissions and the subject of the PEO)

had been given all 2,570 pages of the Records at Issue. The complete text of the email from the Second

Applicant was reproduced in my response to him/her on September 22, 2017 letter, a copy of which letter

was shared with all parties, and read as follows;

Re: Inquiry #F6525/#F6761: Response to Question Raised by Second Applicant

On September 21, 2017 you sent an email to the Registrar [name] (copied to all parties) with one

question in relation to the Notice of Continuance of Inquiry in #F6525/#F6761 that I issued the

day before. [Name of Registrar] forwarded your question to me and responded to you advising I

was in transit yesterday when you sent your query. I am happy to be able to respond today.

Your question was as follows:

Did the writer (a former judge) of the unsworn letter dated July 2, 2014 review all of the 2,570

pages of the Records at Issue?

In its 2014 Initial Submission, the Public Body provided the 2014 Index at Tab 1 [total 564 pages

of records] and the unsworn letter (retired judge) dated July 2, 2014 at Tab 4. In para. 73 of my

Decision F2014-D-03/Order F2014-50 [2014 Decision/Order], I noted that one of the factors I

considered in making my decision was the lack of clarity as to exactly what records (or index) the

author reviewed in 2014. At paras. 169-170 of the Decision/Order, I exercised my discretion to

rule the evidence proffered by the Public Body inadmissible.

Notwithstanding my 2014 Decision/Order that the unsworn letter was inadmissible, at p. 2 of its

2016 Initial Submissions, the Public Body listed the unsworn letter as part of the evidence it had

provided. In para. 18 on p. 10 of my 2017 Decision with respect to the June 10, 2016 Records at

Issue, I stated the following:

[NOTE: The final item in the list of evidence, the Opinion Letter, was the subject of my

Decision/Order released December 31, 2014 with respect to the PEO, in which I found the

Opinion Letter to be inadmissible in the Inquiry. The Public Body has filed a Judicial Review

of that Decision/Order, which has been adjourned sine die. During this phase of the Inquiry,

because I have the June 10, 2016 Records at Issue, I find it unnecessary to consider the

propriety of the Public Body trying to resubmit the Opinion Letter found to be inadmissible into

evidence during this phase of the Inquiry, a step the Applicants strongly oppose. I find it

unnecessary to consider particularly given that the Public Body itself does not refer to it in the

text of its Initial Submission [2016]. The Opinion Letter has not been re-read or considered

during this phase of the Inquiry.]

As the Notice of Continuance states, should the Public Body attempt to continue to rely on the

unsworn letter, I proposed to add an Issue #9 in the Inquiry regarding waiver, as follows:

5. Should the Public Body attempt to continue to rely on the unsworn letter report [dated July

2, 2014] that was submitted as part of its 2014 Initial Submission (held to be inadmissible

evidence in the 2014 Decision/Order) and fail to comply with the evidentiary requirements

outlined above, I propose to add the following as Issue #9 in the Inquiry:

24

Whether the release of a complete unprotected copy of the Records at Issue by the

Public Body to a third party (former judge), without any legislative or contractual

protection of the Records at Issue, in order to submit a non-legal opinion, unsworn letter

report “as to the nature of documents which the Province says are privileged”, which third

party the Public Body did not proffer or qualify as an expert, constitutes waiver by the

Public Body of the legal privilege it has claimed over the majority of pages of the Records

at Issue.

It may be fair to assume that the writer did not have the full complement of 2,570 pages as that

total count of pages of records was not revealed by the Public Body until it produced a new Index

on September 30, 2016.

Therefore, in response to your email, notwithstanding that the unsworn letter is not evidence

before me, it is valuable that you have posed the question as it re-confirms my decision to find the

unsworn letter inadmissible because of its limited probative value.

[para 14]

Shortly thereafter, on September 25, 2017, I received correspondence from a lawyer

advising that s/he was assuming the role as the Minister’s new counsel as the former lawyer was

stepping aside. The letter received from the new counsel, which was copied to the Applicants and to the

Public Body’s former counsel, read as follows:

RE: Inquiry #F6525/F6761

Further to your letter of September 20, 2017, please be advised that [name of former lawyer] is

stepping aside as counsel for the Minister and I will be taking on that role going forward. Please

address all further correspondence to the undersigned.

While I will require some reasonable amount of time to familiarize myself with the status of these

matters, I am instructed to provide a present response to your letter.

At the outset, it is the Minister's position that the External Adjudicator is not, pursuant to s. 74 (4),

of the statute, in a position to continue the Inquiry because of the outstanding application for

judicial review in Court File No. 1503-01391.

Nevertheless, and without prejudice to that position, the Minister has the following proposal:

1. The Minister will review the Records at Issue and provide further evidence respecting any

legal privilege which is claimed over the Records at Issue. The evidence will include

description of the records in accordance with the decision in CNRL v. ShawCor Ltd, 2014

ABCA 289.

2. Such further evidence will be tendered to the External Adjudicator and the Applicants by

November 15, 2017.

3. The Applicants' Rebuttal Submissions to the Public Body be tendered some reasonable

time thereafter and the Public Body will provide its Rebuttal Submissions some

reasonable time following. We suggest December 15, 2017 and January 15, 2018

respectively.

4. The outstanding application for judicial review will remain adjourned sine die pending this

process.

I look forward to your response.

[para 15]

On September 27, 2017, as a result of receiving notification from the Public Body

regarding its change of counsel, I issued an AMENDED Notice of Continuation of Inquiry [2017 Amended

25

Notice] and, under separate cover to the Minister, of a letter of an Extension of Anticipated Completion

Date for the Inquiry. The 2017 Amended Notice read as follows:

Re: Inquiry #F6525/#F6761: AMENDED Notice of Continuation of Inquiry and Extension of

Completion Date

[Name of new lawyer], I acknowledge receipt of your correspondence dated September 25, 2017

advising me that you are replacing [name of former lawyer] as counsel of record in the subject

Inquiry. I certainly appreciate you responding promptly to my September 20, 2017 letter and

sharing your notification with the Applicants.

[Name of new lawyer], your introductory letter was in response to my letter dated September 20,

2017, which had provided the parties with a Notice of Continuation of the Inquiry. The Notice of

Continuation, which was shared with the Ministry’s former counsel [name of former lawyer] and

the Applicants, was in response to the Public Body providing me with another portion of the

Records at Issue and the Applicants and me with another updated Index for the Records at Issue

on January 19, 2017. As I stated in my September 20, 2017 correspondence:

By letter dated March 8, 2017 I acknowledged receipt of the additional portion of the

Records at Issue as further partial compliance with my 2014 Decision/Order

[Decision 2014-D-03/Order F2014-50]. In my letter dated March 23, 2017, I stressed

to the parties that the portion of the Records at Issue provided on January 19, 2017

would not be considered during the June 10, 2016 phase of the Inquiry but would

form part of the main Inquiry when it continued.

In regard to your September 25, 2017 letter, I am heartened at the news that you will be

reviewing the Records at Issue and that you propose to provide evidence respecting any

legal privilege exception, which the Public Body intends to continue to claim. I can assure

you that I have no interest in injuring or compromising valid claims to legal privilege. The

2014 Initial Submission from the Public Body, however, was deplete leaving me, as the

ShawCor Court of Appeal of Alberta put it “blindfolded”: inadequate description of each

page or bundle of records, unclear link between the particular grounds of legal privilege

being claimed for each page or bundle of records, and insufficient information/evidence to

assist me (without the Records at Issue over which legal privilege has been claimed being

available to me) in assessing the validity of the claimed privilege. I encourage you to put

your attention to all these aspects during your review of the records and preparation of the

relevant affidavit evidence.

Should you, [name of new lawyer], on your review of the Records at Issue, discover that some of

the pages of records do not fit within any legal privilege exception, I urge you to provide those

pages to me, making clear any other exceptions on which the Public Body is continuing to rely for

those pages. In addition, if you discover any pages of records where the Public Body no longer

intends to rely on the claimed exceptions and is now prepared to disclose to the Applicants, I

would invite you to do so.

I recognize as new counsel that at the outset you will require considerable time to get up to speed

on, and to familiarize yourself with, this Inquiry file. The changing scope of the Records at Issue

(initially 564 pages; now 2,353 pages in the Records of Issue left to review, remembering that

the continuation of the Inquiry will not include the 35 pages in the June 10, 2016 Records

at Issue, which were the subject of Order 2017-61) and the numerous Indices produced by

the Public Body have made this Inquiry particularly complex. In that regard, in the Notice

of Continuation dated September 20, 2017, I attempted to highlight some of the details of

these complexities, posing questions for the Public Body (refer to p. 5 of the Notice of

Continuation). It is reasonable for me to conclude that given the present state of the

January 2017 Index, [name of new lawyer], your plan to include a description of the

Records at Issue, as set out in ShawCor, as part of the new affidavit evidence, will take

26

some time. Also, importantly, given what I referred to as deplete submissions from the

Public Body regarding the legal privilege exceptions on which it has relied (refer to pp. 6-8

of the Notice of Continuation, I laid out specific demands for evidence in line with the

ShawCor decision and the Alberta Rules of Court, which I appreciate may require some

time to organize and is, therefore, another important factor for me to consider. That being

said, I need to be fair to all the parties: reaching a balance between your needs as new

counsel for the Public Body with the interests of the Applicants whose access to

information requests date back to 2012 and who have never, over the last 5 years, had the

opportunity to respond to the kind of evidence you are proposing to submit.

Your proposal to tender this evidence, which I will refer to as the Public Body Supplementary

Initial Submission, as a first step is, in my opinion, a sound one, subject to any objections the

Applicants may have. This step will be followed by the Applicants being given ample time to

respond to the Public Body’s newly tendered evidence in their respective Rebuttal Submission.

You may not be aware but the typical timeline used by the Commissioner’s Office for

submissions is as follows: 4 weeks for parties to provide an Initial Submission and 2 weeks to

provide a Rebuttal Submission, which customary timeline I followed in the earlier Notice of

Continuation provided to your predecessor and the Applicants.

Weighing all the relevant considerations and to be fair to all parties, I propose to modify my

September 20, 2017 timeline, subject to any objections any party may have, …

[Emphasis in original and added]

[para 16]

On the same date, the First Applicant wrote to advise it had no objection to the Amended

Schedule for Submissions. The Second Applicant did not respond and therefore, in keeping with the

practice at the OIPC, s/he was deemed to be in agreement with the extended timelines.

[para 17]

behalf:

On October 12, 2017 the Registrar distributed the following email to the parties on my

Please accept my apologies for the delay in acknowledging receipt of [name of First Applicant]’s

letter of September 27, 2017 which was received and forwarded to External Adjudicator Dulcie

McCallum on the same date. Ms. McCallum has asked me to respond to you as follows:

Thank you [name of First Applicant] for your letter. I appreciate you promptly responding to

my September 27, 2017 amending the Schedule for Submissions for the Inquiry. I also

appreciate your flexibility with respect to extending the timelines for the Public Body’s new

counsel to provide its Supplementary Initial Submission.

As Registrar [name] has not received any written response from either [name of Second

Applicant] or [name of new counsel] to my letter of September 27, 2017 and more than three

days have elapsed since the letter was sent, I assume they also have no objection to the

Amended Schedule.

I look forward to receiving the parties’ submissions by the deadlines as set out in the

Amended Schedule.

[para 18]

On October 16, 2017, in response to a query from new counsel for the Public Body, the

Registrar of Inquiries sent the following email to all parties:

Recently you contacted me by telephone regarding whether or not you were required to reply to

External Adjudicator Dulcie McCallum's correspondence regarding the Amended Schedule for

Submissions. I advised you that your silence would be taken as you having no objections.

27

During our conversation you indicated that in the next while you would be travelling to Edmonton

to view the records. You also posed a question as to why the various inquiries, for which you

were now counsel, had not been consolidated into one inquiry. As the Registrar, I was not in a

position to answer the question and simply pointed out that the various inquiries involved different

public bodies and were as a result of different access to information requests. I believe I referred

you to correspondence sent to the parties by Commissioner Clayton when these matters were

initially set down for inquiry.

I felt I would be remiss if I did not inform Ms. McCallum about the fact that you raised the

possibility of consolidation during that conversation. She has asked me to contact you (with

copies to the parties in each of the inquiries) to advise you about the procedure at the

Commissioner's Office when this kind of issue is raised. A copy of this email has been forwarded

to Ms. McCallum.

When any party has an issue, question or objection during an Inquiry, they may raise the matter

with the External Adjudicator. On that basis, if, after reviewing the access to information

requests, the Records at Issue and the indices in the various inquiries, you consider it

appropriate, you may make a request in writing to the External Adjudicator asking her to consider

your request to consolidate two or more of the inquiries. Please follow the instructions for making

a variation request provided on pages 3 and 4 of the Inquiry Procedures, a copy of which is

attached for your convenience. Thereafter, the External Adjudicator will make a decision in that

regard after the Applicants have had an opportunity to comment on your request, should they

elect to do so.

You will receive this email from me in each of the inquiries separately because while the identity

of the Applicants in each of the inquiries have, by consent early in the inquiries been made known

to each other, that is not the case for the identity of the Applicants across the spectrum of the

various separate inquiries.

If you have any questions in this regard, please do not hesitate to contact me.

[para 19]

On October 23, 2017 counsel for the Public Body sent an email to all parties in this

Inquiry, which read as follows:

I am writing to advise that we continue to work on our additional submissions. At this time we are

expecting we will be able to meet the November 15 date for our submissions.

[para 20]

On the same date, the Registrar of Inquiries circulated a response to all the parties on my

behalf, which read as follows:

We acknowledge receipt of your email of today’s date. I forwarded your email to External

Adjudicator Dulcie McCallum, who has asked me to respond to you as follows:

In the subject Inquiry [#F6525/#F6761], you never proposed nor did I expect you to provide

me with an update on today’s date, as the Schedule for Submissions in the Amended Notice

of Continuation of Inquiry already set November 15, 2017 as the due date for the Public

Body’s Supplementary Initial Submission. Your email today in this Inquiry was unnecessary.

Finally, all of today’s emails were sent as a reply to the Registrar’s email dated October 16,

2017, to which you did not provide any response or question. I assume you now appreciate

the process under the Inquiry Procedures. The Applicants have filed no objection to the

extended date for the Public Body’s Supplementary Initial Submission. By way of reminder,

the Inquiries in which you are now counsel remain separate.

28

[para 21]

On a review of the Index provided with the additional Records at Issue on January 19,

2017, I corresponded with the Public Body, shared with all of the parties, for the purpose of seeking

further clarification regarding the upgraded Index, which October 26, 2017 letter read as follows:

Re: Inquiry #F6525/#F6761: Discrepancies in the Records

On a review of the pages of Records at Issue provided to me on January 19, 2017 by your

predecessor, [name of former lawyer], a number of questions have once again arisen regarding

the records. I consider it fairer to you to add these to the questions contained in my September

20, 2017 Notice of Continuation. As I pointed out at page 4 of the Notice, included in the 40

pages provided to me in January were 2 pages [210, 211] from the June 10, 2016 Records at

Issue [already dealt with in my last Order]. These pages do not form part of the ongoing

Inquiry.

On a review of the remaining 38 pages, please be advised as follows:

1. Pages 54 and 213 were released in full to the Applicants in 2012 in response to the

access to information request and again on September 19, 2016; [NOTE: On review of

this letter, I note that the Public Body actually re-released pages 54 and 213 on

September 30, 2016.]

2. Pages 1703, 1725, 1732 and 1733 were released in full to the Applicants and provided to

the External Adjudicator on September 30, 2016.

There are, therefore, 6 less pages of Records at Issue that are before me. This brings the total to

32 pages of Records at Issue available to me. Please confirm this count to be correct.

Also I add the following questions to those posed at page 5 of the Notice of Continuation, which

are to be answered in your Supplementary Initial Submission:

1. Please provide an update as to the total number of pages of Records at Issue [do not

include the June 10, 2016 Records at Issue or any pages disclosed to the Applicants at

any time in the count];

2. In relation to the request in bullet 1 immediately above, please confirm that page 2521

has been released to the Applicants [shown in the January 2017 Amended Index as

claiming multiple exceptions] and will not be included in the count of the Records at

Issue;

3. On page 2 of [name of former lawyer] January 19, 2017 letter, the Public Body claims

that s. 16 is to be claimed should I find s. 17 does not apply. Is this additional exception

being claimed in every instance where s. 17 has been claimed in the January 2017

Amended Index?;

4. Providing some clarity on what is meant by the Public Body when it claims “Non-

responsive” in the Index and “subject to litigation and solicitor-client privilege” in a

footnote would be helpful [examples pages 2199, 2200] as these pages have not yet

been provided to me;

5. Please confirm that s. 16 and s. 17(1) are being claimed in addition to “non-responsive”

on page 37. The redacted copy provided to the Applicants only shows non-responsive

with no reference to any of the exceptions as they appear on my unredacted copy; and

6. For page 53, the Index shows one of the three exceptions as s. 17(1)(g)). As there is no

such exception, please advise which subsection of s. 17 was intended.

29

If you have any questions in this regard, please do not hesitate to contact Registrar [name] who

will provide them to me.

[Emphasis added]

[para 22]

In this Inquiry, I did not receive a response from the Public Body to the questions I raised

in the October 26, 2017 correspondence.

[para 23]

On November 15, 2017, the Public Body provided its Supplementary (Initial) Submission

[2017 PBSS] in accordance with the 2017 Amended Notice, which will be discussed in detail infra. The

2017 PBSS included another updated Index of Records [Exhibited Index] attached to the 2017 Affidavit of

Records. The Exhibited Index was to replace other indices previously submitted by the Public Body in

January 2017 (when the new Records at Issue were provided to me) and in April 2017.

[para 24]

After the OIPC Registrar acknowledged receipt of the 2017 PBSS, the First Applicant

requested an electronic searchable version of the Exhibited Index (Schedule) to the 2017 Affidavit of

Records [Exhibit A]. On November 21, 2017 the Public Body responded by email sharing the requested

electronic version of the Exhibited Index with the External Adjudicator and both of the parties.

[para 25]

On November 23, 2017 after receiving the 2017 PBSS, I corresponded with counsel for

the Public Body, as follows:

The following message is being sent to [name of lawyer] and copied to the Applicants on behalf of

External Adjudicator Dulcie McCallum in regard to Inquiry #F6525/#F6761.

Dear [name of lawyer]

I acknowledge receipt of your Supplementary Initial Submission in the subject Inquiry that

was forwarded to me by Registrar [name].

In that regard, given that the Applicants submitted their Initial Submission in 2014 and given

they have only one opportunity to provide a response to your Supplementary Initial

Submission by way of Rebuttal due December 20, 2017, I raise two issues for the purpose of

clarification in advance of them doing so and to avoid any further delay in concluding this

Inquiry.

1. You acknowledge in para. 2 that one of the exceptions relied upon by the Public

Body was s. 17. Throughout your submission, however, there is no reference to s.

17, in particular, in paras. 27-30. Please confirm that the Public Body is no

longer relying on the s. 17 exception.

2. In para. 30 where you note your continued reliance on the Public Body's Initial

Submission from 2014, you indicate that "s. 21 has now been applied to more than

one record." This new decision to claim the s. 21 exception to more records than

just ABJ000281 is reflected in the Index of Records attached to the affidavit of [name

of in-house lawyer]. If you review the submission from 2014 with respect to s. 21,

however, you will find an absence of substantive content. Since you have extended

your reliance on this exception to other records, you may wish to provide a

submission as to how it applies, to which the Applicants could then respond.

To be fair to all parties, I ask you provide this information no later than Monday, December 4,

2017 thus giving the Applicants ample time to finalize their respective Rebuttal Submission.

[Emphasis added]

[para 26]

On November 30, 2017 I received the following response from the Public Body:

30

RE: OIPC File Numbers F6525 and F6761

Thank you for your email of November 23, 2017. We respond to your questions as follows:

1. Section 17 continues to be relied upon where indicated in the Index of Records

attached to [name of in-house counsel]’s Affidavit. We continue to rely upon

submissions made by [name of former lawyer] regarding section 17.

2. Section 21 is relied upon where indicated in the Index of Records attached to [name of

in-house counsel]’s Affidavit. We continue to rely upon submissions made by [name of

former counsel]. We make no additional submissions in that regard. We point out that

wherever section 21 is relied upon we also rely on section 27.

We trust this is the information you require.

[Emphasis added]

[para 27]

On December 13, 2017 the Second Applicant provided his/her Rebuttal Submission

[2017 Second ARS] in advance of its due date in the amended schedule set out in the 2017 Amended

Notice.

[para 28]

On December 20, 2017 the First Applicant provided its Rebuttal Submission [2017 First

ARS] in accordance with the amended schedule set out in the 2017 Amended Notice.

[para 29]

On January 4, 2018 I corresponded with the Public Body regarding the need for

additional clarification about the Exhibited Index to the 2017 Affidavit of Records. After a careful

examination of the Exhibited Index, a number of concerns arose, as the recent Exhibited Index appeared

to continue to lack the requisite information. There were instances, for example, where pages were not

accounted for. The Public Body had not indicated whether it had bundled any of the records. But that

had not been specified and, as a result, the Public Body had not accounted for all of the pages of the

Records at Issue; there was no document count column and no sequence of pages shown in the

Document ID Column. The best example is the line for page ABJ000551, which is what the Public Body

had confirmed to be the Retainer and Contingency Fee Agreement. Pages ABJ000552-ABJ000564 were

not included anywhere in Exhibited Index. The Exhibited Index appeared not meet one of the basic

requirements set out in ShawCor and the Alberta Rules of Court: “each record must be numbered in a

convenient order with all pages of the Records at Issue accounted for.” In order to allow the Public Body

the opportunity to know of my concerns in advance of the date set for its rebuttal submission [2017

PBRS], the following letter was sent to the Public Body seeking clarification, shared with both of the

Applicants, which read as follows:

Re: Inquiry #F6525/#F6761: Request for Clarification of Tab A Index of Records at Issue

An issue has arisen with respect to the Index attached as Tab A to [in-house counsel]’s Affidavit

[Tab A Index], which affidavit is found at Tab A of your Supplementary (Initial) Submission in

Inquiry #F6525/#F6761. Your updated Index of the Records at Issue, unfortunately, does not

appear to meet one of the necessary requirements as set out in the Alberta Rules of Court and

the ShawCor decision; each record must be numbered in a convenient order with all pages of the

Records at Issue accounted for, even if pages are bundled together as one Record. Bundles are

permissible so long as the requirements in Rule 5 are otherwise met.

Rule 5.7 permits records of the “same nature” to be bundled so long as the bundle can be

“described in sufficient detail to enable another party to understand what it contains”.

[ShawCor, at para. 48]

I would assert that the pages in each bundle are an essential part of the description of a record.

On a review of the column titled "Document Id" you will see there are multiple instances where

there is a gap in the numbering from one line to the next. Please note that in order to complete

31

this Inquiry, I will be making my findings for each page of the Records at Issue as they appear in

Tab A Index.

There are many instances where records in a potential bundle are not properly described. By way

of example, Document Id ABJ000551 is listed and described as Retainer and Contingency Fee

Agreement. The next entry for a record in the Tab A Index is ABJ000565. Pages ABJ000552

through to and including ABJ000564 are not accounted for.

As you will appreciate, this is particularly important where the largess of Records at Issue [all

records where legal privilege has been claimed] are not before me and thus the Public Body will

be placing considerable reliance on the [name of in-house counsel] Affidavit [including the Tab A

Index] in order to meet its burden to establish the legal privilege exception has been properly

claimed.

If affiant [name of in-house counsel] intended to omit the pages not referred to from the Records

at Issue, please advise accordingly.

If affiant [name of in-house counsel] did not intend to omit some or all of the pages, for example,

those [s/he] intended to include as part of a bundle, I require those page sequences to be

specified in the Tab A Index [for example, as they appear in the January 19, 2017 Index], or

alternatively, each Record and/or bundle of Records needs to be numbered sequentially in the

Tab A Index in a separate column, to number all of the Records at Issue - for each page or

bundle [Refer to the Practice Privilege Note: Schedule to the Sample Affidavit]. This correction

to the description of the Records at Issue will need to be provided as an Amended

Index/Schedule attached to an affidavit sworn by affiant [name of in-house counsel] to

replace the present Tab A Index.

The Public Body Rebuttal Submission is due on January 17, 2018. In order to be fair, I am

sending this letter to enable the Public Body to make any corrections to the Tab A Index for the

Records at Issue that it considers necessary. This correction is to be included with its Rebuttal on

the scheduled date. As there has been ample opportunity over the last four years for the

Public Body to provide a final and complete Index that met all legal requirements [after

multiple amended indices], again, in order to be fair, I will be very reluctant to grant any

further time extension in order for the Public Body to provide clarification.

[Emphasis in original and added]

[para 30]

On January 17, 2018 the Public Body provided its Rebuttal Submission [2018 PBRS] in

accordance with the 2017 Amended Notice. The 2017 PBRS was accompanied by the Public Body’s

response to my correspondence of January 4, 2018 that requested clarification regarding the Exhibited

Index, which read as follows:

This is in reply to your letter of January 4, 2018.

At the outset we must respectfully dispute your assertions that the revised Index of Records is not

compliant with the Alberta Rules of Court and the ShawCor decision. Each document has been

separately and sufficiently described or identified. Each page is separately numbered on the

documents and there has been no bundling as you describe. The affidavit of [name of in-

house counsel] describes the claims of privilege over the documents.

That said, and in an effort to remove an issue that we do not think will assist the process, we

have revised the Index using a different software program to include a column for page counts

and end document numbers. We enclose a PDF and searchable Excel versions of this revised

Index, which forms part of the Public Body’s submissions.

[Emphasis added]

32

[para 31]

The exchange of submissions was concluded, as set out in the 2017 Amended Notice.

As a result of one aspect of a submission in the Public Body’s 2018 PBRS that indicated its intention to

continue to rely on the Opinion Letter ruled in admissible in my 2014 Decision/Order, I deemed it

necessary to send a further communique to all of the parties in the Inquiry. My correspondence dated

January 26, 2018 read as follows:

Re: Inquiry #F6525/#F6761: Invitation to Provide Further Submissions on the Issue of Waiver

This letter acknowledges receipt of the Public Body Reply to the Rebuttal Submissions of the

Applicants [Reply] dated January 17, 2018. In the usual course of an Inquiry, after all the final

submissions have been exchanged, all parties would be receiving a communique advising that

the exchange of submissions was concluded and that a decision would be forthcoming.

The deviations throughout this Inquiry have caused considerable delay in concluding the matter.

It is disappointing to have to correspond with the parties at this juncture regarding one further

issue. After five years since the filing of the requests for access to information, for me to propose

a further step is unfortunate but I believe necessary to ensure the Inquiry has the benefit of

comprehensive arguments from the parties.

In its Reply, the Public Body stated at para. 18:

However, as the Applicants have raised the issue of waiver in their submissions,

the Public Body provides the following response, reserving its right to file further

materials with respect to the issue of wavier [sic].

Immediately after making that statement, the Public Body went on in its Reply to provide

argument and case law regarding the issue of waiver.

The only question at this time is how to respond to the Public Body’s claim to having a

right to file further materials. It is not necessary to comment on whether the Public

Body has the right it claims, but rather will rely on my discretion regarding procedural

matters related to the conduct of an Inquiry in deciding how to proceed.

In the Notice of Continuation of the Inquiry dated September 20, 2017, I stated the following:

Should the Public Body attempt to continue to rely on the unsworn letter report [dated July 2,

2014] that was submitted as part of its 2014 Initial Submission (held to be inadmissible