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 Applicants 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 Crowns Right of Recovery Act referred to as the CRRA Litigation. The Second Applicants  
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 counsels 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 Bodys 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 Bodys 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; Crowns 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 LawyersAssociation, 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 Crowns 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  
includethe 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 Bodys  
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 Bodys  
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 Bodys 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 Bodys 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 Commissioners 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 partiesSubmissions.  
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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 Bodys 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-Applicants legal arguments and that s/he  
joined him or her in asking that the Opinion Letter be ruled inadmissible. A copy of the co-  
Applicants 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 Bodys 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 Crowns 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  
Commissioners 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 Bodys letter was brought to my attention  
because, as the External Adjudicator, I continued to have conduct of this Inquiry.  
9
On June 17, 2016, I wrote to the parties acknowledging receipt of the Public Bodys June 10,  
2016 correspondence and advising that as this Inquiry was not finished, the Public Bodys letter  
to the Commissioner had been re-routed to me as the External Adjudicator and not given to the  
Commissioner, who remains at arms 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 Bodys  
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 Bodys  
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 recordsnumbering, 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 applicantsrequests 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 recordsnumbering, 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 Bodys 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 Applicants  
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 Bodys 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 partiesInitial 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 Bodys 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 ApplicantsRebuttal Submissions [2014] and the Public Bodys 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 Bodys 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:  
Tab 3(c) 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 Applicantsaccess 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 partiesrespective 2014 Initial Submissions were exchanged,  
highlights of which include:  
1. Following the release of the Iacobucci Review Report with respect to the Ethics  
Commissioners 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  
Commissioners 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 counselin 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 lawyersworking 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 Confidentialor 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 Bodys 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 Bodys 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 Ministers 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 Bodys 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 Ministrys 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 Bodys newly tendered evidence in their respective Rebuttal Submission.  
You may not be aware but the typical timeline used by the Commissioners 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 Bodys 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 partiessubmissions 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 todays 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 todays 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  
Bodys Supplementary Initial Submission. Your email today in this Inquiry was unnecessary.  
Finally, all of todays emails were sent as a reply to the Registrars 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 Bodys 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-  
responsivein the Index and subject to litigation and solicitor-client privilegein 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 natureto 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 Bodys  
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 Bodys 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 Bodys 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 Bodys 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  
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.  
In correspondence to all of the parties dated September 22, 2017, I once again notified the  
parties that if the Public Body failed to provide the substantive evidence laid out in detail in the  
Notice of Continuance and continued to rely on the Opinion Letter, that the following would be  
added as an issue in the Inquiry. That letter stated the following:  
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:  
33  
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.  
Both Notices to the parties made it clear that there were two requirements (conjunctive) that the  
Public Body had to meet or the issue of waiver, as outlined, would be added as an issue. In its  
Supplementary (Initial) Submission, the Public Body met one of the two requirements by  
providing substantive evidence attesting to legal privilege in affidavit form.  
With respect to the second requirement, however, the Public Body has elected to continue to rely  
on the Opinion Letter as part of its evidence in its Supplementary (Initial) Submission, which was  
its decision to make. In that regard, at para. 26, the Public Body Supplementary (Initial)  
Submission dated November 15, 2017 stated:  
In addition to the affidavits of submitted as evidence in this inquiry, the Public Body  
continues to rely on the report prepared by retired Justice [name], and its submissions  
regarding that report dated September 12, 2014, recognizing that the decision of the  
External Adjudicator regarding the admissibility of that report has been judicially reviewed  
and is currently stayed. [Emphasis added]  
The First Applicant in this Inquiry has addressed the issue of waiver in its Rebuttal Submission in  
response to the Public Bodys Supplementary (Initial) Submission. In [his/her] Rebuttal  
Submission, the Second Applicant has chosen to rely on the submissions of the First Applicant  
with respect to all issues.  
To be clear, admissibility of the Opinion Letter is the subject of Decision F2014-D-03/Order  
F2014-50 [2014 Decision/Order] and is not presently an issue in this Inquiry. In the 2014  
Decision/Order, I made no finding or decision as to whether there had been a waiver of privilege  
and, therefore, the issue of waiver is live and not res judicata. The issue with respect to waiver  
is clearly stated in both notices supra and does not relate to the Opinion Letter itself. The  
issue is whether the Public Body has waived legal privilege over any of the Records at  
Issue.  
With a view to procedural fairness, I am responding to the Public Bodys reservation to file  
further materials by inviting it to make one further submission on the sole issue of waiver.  
Similarly, with fairness in mind, after the Public Body provides its Supplementary Reply  
Submission in regard to the issue of waiver, both of the Applicants, if they elect to do so,  
will have the opportunity to provide a Supplementary Rebuttal Submission, again, on the sole  
issue of waiver. I urge the parties to contain their respective submissions to the sole issue of  
waiver as outlined in the Notices they received.  
I would appreciate all of the parties providing their respective submission in accordance with the  
Schedule below …  
[Emphasis in original and added]  
34  
[para 32]  
On February 9, 2018 the Public Body provided its Supplementary Submission [2018  
PBSS Waiver], which included an Affidavit of in-house counsel [2018 Waiver Affidavit], on the issue of  
waiver, in accordance with the schedule of submissions, that will be detailed infra.  
[para 33]  
On February 22, 2018 the First Applicant provided its Supplementary Rebuttal  
Submission [2018 First ASRS Waiver] on the issue of waiver, in accordance with the schedule of  
submissions, that will be detailed infra.  
[para 34]  
On February 23, 2018 the Second Applicant provided his/her Supplementary Rebuttal  
Submission [2018 Second ASRS Waiver], in accordance with the schedule of submissions, that read as  
follows:  
Please be advised that I will be relying on the supplementary rebuttal submission of [name of  
First Applicant].  
[para 35]  
By correspondence dated February 23, 2018 the Registrar advised the parties that the  
scheduled submission process was now complete, that the inquiry would now continue and that no further  
submissions would be accepted unless specifically requested or approved by the External Adjudicator.  
II. RECORDS AT ISSUE  
[para 36]  
As discussed in some of the correspondence reproduced supra, clarifying the exact  
parameters of the Records at Issue has been a challenge. I consider it to be a basic and essential  
requirement of the Public Bodys duty to meet its burden of proof to provide an accurate description of the  
responsive Records at Issue, particularly for Records at Issue made up of approximately 2,570 pages,  
only 40 pages of which have been available to the decision-maker.  
[para 37]  
The parameters of the Records at Issue have shifted multiple times from the time of the  
access to information requests in 2012 to the final submission received from the Public Body in 2018.  
The size of the record began in 2012 as 564 pages, remained at 564 pages at the time of the 2014 PBIS,  
and ultimately reached 2,570 pages in 2017. The Public Body released 38 pages to the External  
Adjudicator on June 10, 2016, which have been ruled on in the 2017 Order and are not at issue in this  
phase (3 pages of which have been released to the Applicants). During the June 10, 2016 phase of the  
Inquiry, the Public Body released two additional sets of Records at Issue on two separate occasions  
(September 30, 2016 and January 19, 2017), which were not part of that phase [2017 Order], but are part  
of this phase.  
[para 38]  
On January 19, 2017 the Public Body provided 40 additional pages to the External  
Adjudicator. However, 2 of the 40 pages were part of the June 10, 2016 Records at Issue so these were  
no longer at issue. Of the remaining 38 pages, 2 pages had already been released in full to the  
Applicants in 2012 and 4 pages had been released in full to the Applicants on September 30, 2016. And  
lastly, in a footnote (#17) in its 2017 PBSS, dated November 15, 2017, the Public Body advised that it  
was releasing 17 additional records to the Applicants (which had been previously released in redacted  
form), which records it included at Tab B of its 2017 PBSS. Details are set out in the Table under  
Findings infra.  
[para 39]  
The following is my best attempt to summarize the pages of Records at Issue based on  
information provided by the Public Body in various indices and in correspondence, having to do so  
without having the majority of the Records at Issue available to me:  
Total number of pages referred to in Access to Information Decisions (2012): 564 pages [179  
Records at Issue]  
Total number of pages in 2017 Exhibited Index: 2,570 pages [805 Records at Issue]  
35  
Total number of pages disclosed to the Applicants: 273 pages made up of:  
* 98 pages disclosed in August/September 2012 access to information decisions;  
* 154 pages in September 2016 with updated index;  
* 1 page June 2017; and  
* 20 pages [17 records] in November 2017 with Exhibited Index.  
Total number of pages of Records at Issue under review in the Inquiry: 2,297 pages  
III. ISSUES IN THE INQUIRY  
[para 40] The issues were laid out in the Notice of Continuation of Inquiry [2017 Notice]. The 2017  
Notice made note that Issue #7 from the 2014 Notice: whether the Public Body properly removed some  
information in the records on the basis the information was non-responsive [NR] to the access to  
information requests, was no longer an issue in the Inquiry: the issue of how the Public Body had defined  
the Records at Issue (temporal scope and NR) was referred to another forum as this issue was beyond  
the scope of my delegation as the External Adjudicator. The Public Body has continued to include the  
designation of NR for some of the Records at Issue in the Exhibited Index. These will be discussed under  
Findings infra.  
[para 41]  
In addition, as outlined in the 2017 Notice and repeated again in my letter dated  
September 21, 2017 supra, I advised the parties in advance that should the Public Body continue to rely  
on the Opinion Letter (subject of the 2014 Decision/Order), the issue of waiver would be added as an  
issue in the Inquiry. The Public Body continued to rely on the Opinion Letter in its 2017 PBSS [Refer to  
para. 26 of the 2017 PBSS]. This resulted in my requesting supplementary submissions from the parties  
on the sole issue of waiver, as discussed supra. Thus, for the purpose of the continuation of this Inquiry,  
the following are the remaining 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.  
3.  
4.  
5.  
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.  
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.  
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.  
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. No longer an Issue in the Inquiry: 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.  
36  
9. 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.  
IV. SUBMISSIONS OF THE PARTIES  
[Throughout the review of all of the partiessubmissions, where I consider it may assist to provide clarity,  
information will be placed in parentheses and marked by NOTE. In addition, the litigation under the  
Crowns Right of Recovery Act to recover health care costs associated with the use of tobacco is referred  
to as the CRRA Litigationor the HCCR Litigationor the CRRA Actionby the parties. For simplicity  
and consistency these will be referred to as the CRRA Litigationthroughout the Interim Decision/Order,  
other than where quoting or referencing a partys submission. Additionally, throughout the submissions,  
the parties refer to the Related Recordsor Refused Records.For simplicity and consistency these will  
be referred to as the Records at Issuethroughout the Interim Decision/Order, other than where quoting  
or referencing a partys submission. The following submissions are reviewed in the order in which they  
were received.]  
A. Second Applicant Initial Submission [2014 Second AIS]  
[para 42]  
On July 7, 2014, the Second Applicants Initial Submission [2014 Second AIS] was  
received, in advance of the due date set out in the 2014 Notice. What follows is a detailed overview of  
the Second Applicants 2014 Second AIS:  
Introduction  
1.  
2.  
The Second Applicant indicates his/her submission will not address all of the issues in the Inquiry.  
This s/he bases on the fact it is impossible to know how the public body applied the sections in  
support of redaction. In some instances I will speculate about the intended application of the  
sections, while recognizing my premise may be wrong and therefore of no practical use.”  
The Second Applicant states his/her position is that in all instances where it has applied a section to  
redact information, regardless of whether s/he addresses the exceptions (s. 21 and s. 24), the  
Public Body has to prove all of the elements of the section to show it applies, meet the legal  
threshold for the harms test and demonstrate that public interest has been considered.  
Public Bodys refusal to allow review of Records at Issue  
3.  
The Second Applicant states that the key issue is the fact that the Public Body has refused to give  
the vast majority of the Records at Issue to the External Adjudicator or the OIPC for their review.  
4.  
The Second Applicant submits that the issue of whether solicitor client privilege applies ought to be  
decided by the External Adjudicator on behalf of the Commissioner and not the Public Body, as if it  
is the latter who decides (based on an affidavit of the FOIP Advisor), it would arbitrarily usurp the  
legislated authority of the Commissioner. [NOTE: The Second Applicant attaches correspondence  
from an OIPC investigator (referred to him/her as an adjudicator) as Appendix A reporting on the  
outcome of the Second Applicants Request for Review.]  
5.  
The Commissioner has established a protocol to deal with Records at Issue over which a public  
body has claimed solicitor client privilege, which the Second Applicant submits the Public Body has  
ignored thereby denying access of the Records at Issue to the Commissioner and him/herself as an  
Applicant and has needlessly delayed the process.  
37  
6.  
7.  
The Second Applicant submits that the Public Body appears not to trust the Commissioner, acting  
like it is above an Officer of the Legislature. This calls into question, the Second Applicant argues,  
who can hold the Public Body to account on behalf of the public. The Second Applicant submits  
that the Public Bodys arbitrary refusal to allow the Records at Issue to be reviewed undermines the  
independent Legislative Officer. This arbitrary refusal by the Public Body should not be allowed and  
ought to be publicly censured.  
The Second Applicant refers to the Commissioner having all the powers, privileges, and immunities  
as a Commissioner under the Public Inquiries Act (s. 56(1)) and cites two further provisions in the  
FOIP Act with respect to powers while conducting the Inquiry, arguing that on the basis of these  
powers, the External Adjudicator should order the Public Body to produce all the Records at Issue,  
previously withheld from the Portfolio Officer, which provisions are as follows:  
Section 56(2) states:  
The commissioner may require any record to be produced to the Commissioner and  
may examine any information in a record, including personal information whether or  
not the record is subject to the provisions of this Act.  
Section 56(3) states:  
Despite any other enactment or any privilege of the law of evidence, a public body  
must produce to the Commissioner within 10 days any record or a copy of any record  
required under subsection (1) or (2).  
8.  
The Second Applicant requests that if the Public Body does not produce the withheld records, that  
court action should be initiated to force the Public Body to abide by its own legislation. [NOTE: To  
be clear, and to be fair to the Second Applicant, it is important to note that the 2014 Second AIS  
was submitted well in advance of the Alberta (Information and Privacy Commissioner) v. University  
of Calgary, 2016 SCC 63 [U of C] decision in the SCC released on November 25, 2016 regarding  
the Commissioners statutory power, or lack thereof, to compel production of records over which a  
public body has claimed legal privilege.]  
Public Body ignored purpose and intent of FOIP: Section 32  
9.  
The Second Applicant submits that the purpose of FOIP in a democracy is to hold governments  
accountable and facilitate democracy. Several levels of court have recognized this purposeand  
goes on to cite the following:  
Citing the Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403 [Dagg] decision with respect  
to the object of access legislation:  
The overarching purpose of access to information legislation, then, is to facilitate  
democracy. It does so in two related ways. It helps to ensure first, that citizens have the  
information required to participate meaningfully in the democratic process, and secondly,  
that politicians and bureaucrats remain accountable to the citizenry. As Professor Donald  
C. Rowat explains in his classic article, "How Much Administrative Secrecy?" (1965), 31  
Can. J. of Econ. and Pol. Sci. 479, at p. 480:  
Parliament and the public cannot hope to call the Government to account without an  
adequate knowledge of what is going on; nor can they hope to participate in the  
decision-making process and contribute their talents to the formation of policy and  
legislation if that process is hidden from view.  
[Dagg, at para. 61]  
38  
Citing the Qualicare Health Service Corp. v. Alberta Office of the Information and Privacy  
Commissioner, 2006 ABQB 515 [Qualicare] decision, in which the Alberta Court of Queens  
Bench stated, referring to access to information legislation as a:  
a vital component in ensuring public confidence in the integrity of the public  
administration is transparency.  
[Qualicare, at para. 42]  
Referring to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817  
[Baker], at paras. 53, 56 and 65, the Second Applicant submits that the SCC held that a person  
exercising statutory discretion must do so consistent with the purpose of the legislation, which,  
in this case, is set out in s. 1 of the FOIP Act: the right to access records subject to limited  
exceptions in specific instances.  
The purpose, the Second Applicant submits, includes allowing access in the public interest,  
relying on the (Ontario (Public Safety and Security) v. Criminal Lawyers' Association, [2010] 1  
SCR 815 [Criminal LawyersAssociation], which s/he cites as follows:  
The public interest override in s. 23 would add little to this process. Section 23 simply  
provides that exemptions from disclosure do not apply "where a compelling public interest  
in the disclosure of the record clearly outweighs the purpose of the exemption". But a  
proper interpretation of s. 14(1) requires that the head consider whether a compelling  
public interest in disclosure outweighs the purpose of the exemption, to prevent  
interference with law enforcement. If the head, acting judicially, were to find that such an  
interest exists, the head would exercise the discretion conferred by the word "may" and  
order disclosure of the document.  
[Criminal Lawyers' Association, at para. 49]  
10. The Second Applicant reviews in detail the facts surrounding the selection of counsel in the CRRA  
Litigation as reported in news releases and in the Ethics Commissioner investigation report, which  
s/he supports with exhibited evidence (attaches Appendices B, C, D and E). The First Applicant  
argues at p. 5 of his/her 2014 Second AIS, that the exhibited evidence, consisting of two CBC News  
articles, the Ethics Commissioner Wilkinson Investigation Report (December 2013), and a  
statement from the Minister of Justice dated January 7, 2013, demonstrates that this matter is  
clearly in the public interest, which s/he states as follows:  
The politicians involved in this case have not been forthcoming with the public and have not  
shown they can be trusted to provide the public with accurate information, even though this  
legal action potentially represents tens of billions of dollars to Alberta taxpayers. There are  
still numerous troubling questions about how the contract was awarded.  
The monetary benefits to the public are potentially significant. The public clearly would be  
interested to know if the tobacco-litigation decision was in their best interest. This matter is  
clearly in the public interest under Section 32.  
Public Body can't rely on Section 16  
11. With respect to the Public Bodys reliance on s. 16, the Second Applicant stated the issue is  
whether the release of the information could be reasonably expected to be harmful to the business  
interests of a third party. As stated previously, both applicants are primarily interested in the  
contingency fee agreement.”  
12. The Second Applicant continues on with details of statements made to the media by government  
representatives (attaches Appendix E in support), which s/he argues placed information about the  
CFA and the law firm group selected for the CRRA Litigation into the public realm and, therefore,  
any harm to the business interests has already been done. The information from the news releases  
39  
recited by the Second Applicant of statements made by the Minister responsible included: the law  
firm group offered the lowest bid, if the lawsuit was unsuccessful there would be no cost to  
taxpayers, the law firm group had the lowest contingency fee, and the law firm is carrying the cost of  
the litigation. By so doing, the Second Applicant argues, the Public Body has waived its right to  
redact information from the CFA, concluding that there has been no complaint from a third party and  
that there is no evidence whatsoever of any business or economic harm either to the government  
or the third parties.[NOTE: To be clear, and to be fair to the Second Applicant, it is important to  
note that it was not until late 2017 that the Public Body informed the Applicants and the External  
Adjudicator that in 2012 the Public Body gave notice to and received responses from the affected  
third parties, discussed infra.]  
13. As stated at the outset of his/her 2014 AIS, the Second Applicant argued it was incumbent on the  
Public Body to provide evidence to meet the harms test. In that regard, s/he submitted as follows:  
The Supreme Court of Canada addressed the issue of proven evidence of harm, and the  
balancing of confidentiality and the public interest in transparency and accountability, in  
Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy  
Commissioner), 2014 SCC 31:  
"[54] This Court in Merck Frosst adopted the "reasonable expectation of probable  
harm" formulation and it should be used wherever the "could reasonably be expected to"  
language is used in access to information statutes. As the Court in Merck Frosst  
emphasized, the statute tries to mark out a middle ground between that which is probable  
and that which is merely possible. An institution must provide evidence "well beyond" or  
"considerably above" a mere possibility of harm in order to reach that middle ground:  
paras. 197 and 199. This inquiry of course is contextual and how much evidence and the  
quality of evidence needed to meet this standard will ultimately depend on the nature of  
the issue and "inherent probabilities or improbabilities or the seriousness of the  
allegations or consequences": Merck Frosst, at para. 94, citing F.H. v. McDougall, 2008  
SCC 53, [2008] 3 S.C.R. 41, at para. 40.  
[...]  
[66] In sum, the Commissioner's decision reasonably applied the appropriate  
evidentiary standard. The Commissioner took into account the fact that the Registry's  
efficiency is based on its confidentiality. However, she had to balance this concern with  
the public's interest in having transparent and open governmental institutions. In striking  
a balance between those two competing interests, the Commissioner decided that the  
risks suggested by the Ministry were too remote and not supported by the evidence to  
ground a reasonable expectation of probable harm. This finding was reasonable."  
Sections 25 and 27 don't apply  
14. The Second Applicant elected to paraphrase the First Applicants submissions with respect to s. 25  
and s. 27, which are summarized as follows:  
Both Applicantsaccess requests are primarily about obtaining the CFA, although the First  
Applicant is also keenly interested in access to information about how the outside counsel  
retained to undertake the CRRA Litigation was chosen.  
The First Applicant submitted that s. 25 and s. 27 are limited discretionary exceptions and the  
Public Body bears the onus as to why Applicants have no right to the information.  
The purpose of the legislation is to promote access and discretion should be exercised to  
promote the applicant's right to disclosure.The Second Applicant cites from a decision of the  
Alberta OIPC, as follows:  
40  
A discretionary decision must be exercised for a reason rationally connected to the  
purpose for which it's granted. The court in Rubin stated that "Parliament must have  
conferred the discretion with the intention that it should be used to promote the policy and  
objects of the Act …”  
The court rejected the notion that if a record falls squarely within an exception to access,  
the applicant's right to disclosure becomes solely subject to the public body's discretion to  
disclose it. The court stated that such a conclusion fails to have regard to the objects and  
purposes of the legislation: (i) that government information should be available to the  
public, and (ii) that exceptions to the right of access should be limited and specific.  
In the court's view, the discretion given by the legislation to a public body is not  
unfettered, but must be exercised in a manner that conforms with the principles  
mentioned above. The court concluded that a public body exercises its discretion  
properly when its decision promotes the policy and objects of the legislation.  
[Order 96-017, at paras. 49-51]  
Regarding the application of s. 25, a discretionary exception, the Second Applicant argues that  
s. 25 does not apply in this case. For the discretionary exception to apply the Public Body must  
establish objective grounds for believing disclosure of the records will likely harm economic  
interests, citing a number of precedents attached as exhibits relied upon by the First Applicant,  
as follows:  
Appendix F: Order 96-003 for the harms test;  
Appendix G: Order F2008-032 for Public Body must establish a direct link between  
disclosure of information and reasonable expectation of harm to the Public Body;  
Appendix H: Order 96-016 and Order F2009-021 as precedents that there is no  
protection of information of a contractual relationship without evidence of specific harm;  
Appendix I: Order F2009-021 as precedent that disclosure of the contract value and  
financial information in an agreement, after the request for proposal process, did not  
meet the harms test; and  
The Second Applicant concludes that s. 25 does not apply in this case because  
disclosing the commercial agreement between the Public Body and the outside counsel  
in the CRRA Litigation would not cause harm to any of the parties, particularly given  
information already released publicly by the Minister.  
The Second Applicant joins the First Applicant and states: we have to speculate that Alberta  
Justice is applying Section 27 - legal privilege - in relation to solicitor-client privilege and  
limitation privilege, which s/he argues does not apply. In that regard, the Second Applicant  
cites Blank v. Canada (Minister of Justice) [2006] 2 SCR 319 [Blank], where the SCC said the  
following:  
I hasten to add that the Access Act is a statutory scheme aimed at promoting the  
disclosure of information in the government's possession. Nothing in the Act suggests  
that Parliament intended by its adoption to extend the lifespan of the litigation privilege  
when a member of the public seeks access to government documents.  
The language of s. 23 is, moreover, permissive. It provides that the Minister may invoke  
the privilege. This permissive language promotes disclosure by encouraging the Minister  
to refrain from invoking the privilege unless it is thought necessary to do so in the public  
interest. And it thus supports an interpretation that favours more government disclosure,  
not less.  
[Blank, at paras. 51-52]  
41  
Regarding the application of s. 27, the Second Applicant submits that the Public Body often  
makes contracts for services public as not containing legal advice, like the CFA.  
Citing a case relied on by the First Applicant, the Second Applicant argues that the Imperial  
Tobacco Co v. Newfoundland and Labrador (Attorney General), 2007 NLTD 172 [Imperial  
Tobacco] involves a legal challenge from another province that is a foursquare comparative.”  
The citation provided reads as follows:  
In principle, a contingency fee agreement which provides for the scope of the retainer,  
the fees payable and the manner of their payment in discharge of the retainer would not  
be expected to provide a means of ascertaining the nature of the legal advice passing  
between lawyer and client, nor would it contain the type of information going to the merits  
of the matter at issue that would be necessary for the lawyer to have in order to be able  
to give legal advice.  
The Second Applicant refers to Order F2011-018 that held in order to be protected by litigation  
privilege, a document must be a confidential third-party communication, which s/he argues the  
CFA is not.  
Turning to Order F2008-021, the Second Applicant states the case found that s. 27(1)(b) does  
not apply to information that simply refers to, or describes, legal services.  
Conclusion  
15. The Second Applicant concludes with two final points:  
The first is that this is a unique situation. The tobacco litigation is the first in Alberta's history  
and won't be comparable to future situations. Put another way, it is almost impossible that  
there will be a similar situation for which this information could be used to undermine the  
governments negotiating position or a third-party's business interests.  
The second point is that the public body has provided no evidence of any harm and the third  
parties are not interveners. If the third parties don't have an issue with the information being  
released, the government can't argue harm on their behalf.  
B. First Applicant Initial Submission [2014 First AIS]  
[para 43]  
On July 9, 2014, the First Applicants Initial Submission [2014 First AIS] was received, in  
compliance with the Schedule set out in the 2014 Notice. What follows is a detailed overview of the First  
Applicants 2014 First AIS:  
Part I: Introduction  
A. Summary of issue  
1.  
In its Part I introduction, the First Applicant provides an overview of the issue in the Inquiry, a  
summary of which is as follows:  
The issue is whether the Public Body is required under the FOIP Act to disclose to requesting  
members of the public a CFA under which the government has retained external counsel to  
pursue multi-billion dollar litigation on its behalf.  
The Public Body has refused the CFA based the listed exceptions: s. 25(1)(c)(i) (harm to  
economic interests of the public body), s. 27(1)(a) (legal privilege), and s. 27(1)(b) (information  
prepared in relation to the provision of legal services).  
The exceptions do not apply in these circumstances and even if they did, the Public Body  
should disclose the CFA as it is clearly in the public interest to do so, because, the First  
Applicant, argues:  
42  
1. Over the last two years, it has failed to produce any evidence to demonstrate the  
Public Body would suffer economic harm as a result of the disclosure of the CFA.  
2. It claims privilege over a commercial agreement - negotiated with a party adverse in  
interest - but has failed to produce any evidence that the CFA contains solicitor  
client advice. Further it admitted to retaining outside counsel to negotiate the lowest  
price but fails to provide an explanation how solicitor client privilege attaches to the  
negotiations of, or to the CFA itself.  
3. It has failed to produce any evidence how the CFA reveals the substance of the  
provision of legal services and not a mere description of those services.  
Part II: Facts  
A. Background to the Request for Review  
2.  
In its Part II, the First Applicant lays out the facts beginning with the background to the Request for  
Review. Most of the facts have been provided in the Background supra. The following summarize  
those highlighted by the First Applicant and/or not detailed supra.  
In general terms, the First Applicant seeks disclosure of the CFA and any related documents to  
the CRRA Litigation: the Records at Issue.  
Correspondence dated August 31, 2012 received by the Applicant from the FOIP Director  
indicated the Records at Issue to be 564 pages and what exceptions allegedly applied (s.  
25(1)(c)(i), s. 27(1)(a) and s. 27(1)(b)), 433 of which were exempted in entirety and 40  
additional pages redacted. Two pages (50 and 283) had no exception applied but were not  
included in the partial disclosure to the First Applicant.  
On September 25, 2012 the First Applicant contacted the Public Body by phone to confirm  
which were the page numbers for the Records at Issue sought by the First Applicant - the CFA,  
which the Public Body advised were pages 551-564.  
On October 22 and 23, 2012 the First Applicant submitted a Request for Review of the Public  
Bodys decision to withhold the pages for the CFA, which review did not result in a settlement.  
On June 25, 2013 the First Applicant submitted a Request for Inquiry.  
After the External Adjudicator was appointed by the Commissioner on February 27, 2014 a  
Notice of Inquiry was issued and she requested that the Public Body provide an Index to identify  
the responsive records and all of the exceptions it had claimed.  
[NOTE: The First Applicant attached correspondence exchanged with the FOIP office and the OIPC  
regarding its request for access to information and its Requests for Review and Inquiry at Tabs 1-6 of its  
2014 First AIS.]  
B. Background to the CRRA Litigation and retainer of outside law firm [name of law firm group]  
3.  
Relying primarily on the Ethics Commissioner Wilkinson Investigation Report (2013) and some  
records that were publicly available, the First Applicant reviews the background to the CRRA  
Litigation and the retainer of the law firm group ultimately selected:  
In 2009, the law firm group that was ultimately selected, lobbied the Crown with respect to the  
anticipated new Crowns Right of Recovery legislation including lobbying as to the merits of  
retaining it to conduct the litigation on a contingency fee basis.  
On October 25, 2010 the Public Body announced its intention to commence the CRRA  
Litigation.  
A senior government official of the Public Body initiated a selection process by email invitations  
to ten law firms who had previously expressed an interest or who were thought to have an  
interest, which email had an attachment laying out the process and parameters of the selection  
process and set a deadline for expressions of interest for November 15, 2010.  
One law firm and three law firm groups submitted expressions of interest. The latter three law  
firm groups were invited to make presentations to the selection Review Committee, one of  
which was the law firm group ultimately selected that now included another new law firm as part  
43  
of the group (identified by Ethics Commissioner Wilkinson as having a connection with the head  
of the Public Body).  
After the Review Committee provided an analysis of the proposals to the Minister responsible,  
on December 14, 2010, the Minister responsible sent a memorandum to a senior government  
official with his/her choice.  
On December 22, 2010 a senior government official advised a partner of the new law firm in the  
law firm group that it had been selected to represent the government in the CRRA Litigation.  
In January 2011 the Public Body retained outside counsel to negotiate the CFA with the  
selected law firm group, which was signed by the then Minister of the Public Body on June 21,  
2011.  
[NOTE: The First Applicant attached the Ethics Commissioner Wilkinson Investigation Report (December  
2013), briefing notes and emails from senior government officials and a memorandum from the Minister of  
the Public Body, at Tabs 7-11 of its 2014 First AIS as documentation in support of its submissions.]  
C. Public discourse concerning the retainer of external counsel in the CRRA Action  
4.  
Relying primarily on media reports (CBC, Calgary Herald, Edmonton Journal, Global News), Alberta  
Hansard (Legislative Assembly December 4, 2012), the Ethics Commissioner Wilkinson  
Investigation Report (December 2013), Communications New Brunswick (online) and the Imperial  
Tobacco decision, the First Applicant reviews the public discourse regarding the retainer of external  
counsel in the CRRA Litigation, highlights of which include:  
One of the partners is the new law firm in the selected law firm group had been personally and  
professionally involved with the head of the Public Body who made the selection.  
There were other individuals associated with the selected outside law firm who had a  
connection to the head of the Public Body who made the selection.  
On December 3, 2012, the managing partner of the new law firm in the selected outside law firm  
group advised the media that s/he had no objection to the public release of its contract with  
government (CFA).  
On December 4, 2012, the head of the Public Body was questioned about the terms of the CFA  
in question period in the Legislative Assembly, who stated s/he had been advised by the  
managing partner and the former President of the Law Society of Alberta that disclosure of the  
CFA would assist the defendants in the CRRA Litigation.  
During the same Oral Question period, the Deputy Premier stated that this agreement was not  
directly negotiated between the department of Justice and the law firm, but there was a third  
party sort of grinding them down to the lowest. I can also assure Albertans that we as Albertans  
are paying the lowest contingency fee of any province that is involved in this lawsuit.”  
On January 7, 2013, the head of the Public Body issued a statement that the retainer of the  
selected law firm group was based on merit and said it, offered the lowest cost of all bids  
received and was in the best interests of taxpayers. If this lawsuit is not successful, the Alberta  
taxpayers pay nothing.”  
In New Brunswick and Newfoundland Labrador the contingency fees agreed upon with external  
counsel in similar actions to the CRRA Litigation have been disclosed to the public, details of  
which for NB are available online [www.gnb.ca/cnb/news/jus/2007e1138ju.htm] and for  
Newfoundland Labrador is 30% of whatever amounts are recovered against the tobacco  
companies[Imperial Tobacco, at paras. 12, 15].  
[NOTE: The First Applicant attached news reports from various media outlets and a transcript of Alberta  
Hansard (Legislative Assembly December 4, 2012) at Tabs 12-18 as documentation of public statements  
made, in support of its submissions.]  
Part III: Law and Submissions  
A. Public Interest and the purpose of the Act: The public interest is paramount  
5.  
The First Applicant submits that the purpose of the legislation is to foster open and transparent  
government. Further, citing the SCC in Dagg and Adjudication Order #2, access to information is to  
facilitate democracy to ensure citizens have the information required to participate meaningfully in  
44  
the democratic process, and secondly, that politicians and bureaucrats remain accountable to the  
citizenry.Thus when a public body refuses disclosure it must first consider the public interest  
within the narrow statutory limitations.  
6.  
Citing s. 32(1) and s. 32(2), the First Applicant submits that s. 32 is an override provision that has  
been defined narrowly: information must be of compelling public interestin order to be clearly in  
the public interestand must be a matter of public interestnot simply information that may well be  
of interest to the public.”  
Public Interest and the purpose of the Act: Burden of proof  
7.  
The First Applicant argues that the burden of proof is on the party who raised the issue or is in the  
best position to meet the burden.  
8.  
Arguing that because it alone possesses the Records at Issue and knows their contents, the Public  
Body is in the best position to meet the burden of proof by explaining why it is not clearly in the  
public interest to disclose its fee arrangement with the selected law firm group. [NOTE: A discussion  
of that party who has the burden of proof with respect to s. 32 public interest is discussed infra.]  
Public Interest and the purpose of the Act: The public interest compels disclosure of the Records  
at Issue  
9.  
Regardless of who bears the burden of proof, the First Applicant submits that the nature of the  
Records at Issue makes it of compelling public interest they be disclosed.Citing Order 99-017, the  
First Applicant draws a parallel with a case where the Commissioner found that information about  
the extent of the governments involvement in Alberta Treasury Branchesrefinancing of the West  
Edmonton Mall was a matter of compelling public interest. The Commissioner ultimately found that  
because the public body had instructed the Auditor General to release his/her report on the  
refinancing to the public, complied with the requirement for disclosure under the public interest  
override.  
10. Disclosure of the Records at Issue, the First Applicant submits, could reveal significant  
compensation to the selected law firm group based on a compensation formula for which it lobbied.  
The First Applicant cites the Walker v. Ritchie 2006 SCC 45 decision in the SCC that provides a  
description of a typical CFA, that provides, in part: A contingency fee arrangement is typically used  
by plaintiffs counsel where there is the prospect of receiving a damages award Thus, where  
counsel expends time and incurs disbursements on behalf of a client, that lawyer assumes the risk  
of non payment for those services and disbursements should the litigation prove unsuccessful. To  
compensate for this risk, a contingency fee will typically be higher than that which would have been  
payable had counsel billed the client irrespective of the outcome. [Emphasis in original]  
11. The First Applicant states that at least two Alberta cabinet ministers have publicly referenced the  
relatively low contingency fee contained in the Records at Issue. Disclosure is required so the  
public can scrutinize whether the selected law firm group was an economically sound means to  
pursue the CRRA Litigation in keeping with the language in Dagg regarding meaningful participation  
and accountability: through public scrutiny of the potential future allocation of public funds.Relying  
on Order 98-013, the First Applicant argues the Commissioner has held that one of the primary  
purposes of the legislation is to ensure that the public has the right to scrutinize how its tax dollars  
are being managed.”  
12. The First Applicant submits that the Records at Issue are a compelling matter of public interest that  
must be disclosed without delay under Section 32(1)(b) of the Act, regardless of whether any  
statutory exceptions apply in the circumstances (which they do not).”  
13. The First Applicant distinguishes two access to information decisions from other provinces (BC and  
NB) that on their face are similar (Order F13-15 and Hayes v. New Brunswick (Minister of Justice  
and Consumer Affairs), 2008 NBQB 112, [Hayes]: public interest was not considered in either case.  
45  
Public Interest and the purpose of the Act: Alberta Justice must disclose to the public the  
Records at Issue  
14. Relying on Order 97-009, the First Applicant submits that the Public Body must disclose  
informationthat has been interpreted as the actual record, a summary of the record, or a warning  
of the risk based on the contents of the recordand, therefore, the appropriate form of disclosure in  
this Inquiry should be to make the Records at Issue publicly accessible, rather than only disclosing  
them to the Applicants.  
B. Interpretation of the discretionary exceptions in the Act: General right of access for any person  
15. Section 2 of the legislation provides a broad right of access to any person subject only to limited and  
specific exceptions, which if not applicable, means the information must be disclosed.  
Interpretation of the discretionary exceptions in the Act: Discretionary exceptions promote  
disclosure  
16. After referring to the two categories of exceptions: mandatory and discretionary, the First Applicant  
cites the SCC in Blank as authority for an interpretation that the use of discretionary language for  
the legal privilege exception promotes greater disclosure of information, not less, a portion of which  
case reads: This permissive language promotes disclosure by encouraging the Minister to refrain  
from invoking the privilege unless it is thought necessary to do so in the public interest. And it thus  
supports an interpretation that favours more government disclosure, not less.[Emphasis in  
original] The Public Body has relied on three discretionary exceptions.  
Interpretation of the discretionary exceptions in the Act: Review of a discretionary decision  
17. Relying on the Criminal LawyersAssociation in the SCC, the First Applicant submits that a review  
of a public bodys application of a discretionary exception involves two steps: First, the  
Commissioner determines whether the exemption was properly claimed. If so, the Commissioner  
determines whether the heads exercise of discretion was reasonable.If properly claimed, the  
Commissioner can order the Public Body to provide access to all or part of a record. In contrast,  
where properly claimed but where a public body unreasonably exercised its discretion, the  
Commissioner may quash the non-disclosure decision and require the public body to re-consider its  
decision, pursuant to s. 72 of the FOIP Act.  
18. The First Applicant submits that the Public Body bears the burden, pursuant to s. 71 of the FOIP  
Act, to prove why the records should not be disclosed by providing evidence to establish that one or  
more discretionary exceptions apply in the circumstances.  
C. Section 25(1)(c)(i): Financial loss to the Government of Alberta or a public body  
19. After reproducing s. 25(1)(c)(i) of the FOIP Act, the First Applicant submits that in the Merck Frosst  
Canada Ltd. v. Canada (Health), 2012 SCC 3 [Merck Frosst] decision, the SCC interpreted harm”  
in the context of privacy legislation to mean reasonable expectation of probable harm.The First  
Applicant then reproduces, in part, the tripartite harms testas set out in the Qualicare decision, as  
follows:  
a. there must be a clear cause and effect relationship between the disclosure and the harm  
alleged;  
b. disclosure must actually cause harm or detriment, beyond mere interference or  
inconvenience; and  
c. the likelihood of harm must be genuine and conceivable.  
[Qualicare, at para. 6; Merck Frosst, at paras. 195-206]  
20. The First Applicant submits that the Commissioner confirmed that a public body must meet the  
"harms testto rely on s. 25(1) and further submits that in this case, the Public Body has not met  
the Harm [sic] Test, as it has failed to provide any evidence whatsoever that disclosure of the  
Records at Issue would actually cause harm or financial loss.Both the Commissioner and the  
ABQB have held that without adducing evidence directly linking disclosure of a record with the harm  
46  
alleged, there can be no reasonable expectation of harm within the meaning of the statute, citing  
Qualicare, Order 96-003 and Order F2005-009.  
21. The First Applicant, relying on Order 96-016, submits it is the specific information (in a record) that  
must be capable of causing the harm if disclosed and that the statute and, specifically s. 25(1), were  
not intended to include a general protection for contractual relationships.Further, the First  
Applicant submits, relying on Order F2009-021 discussing s. 25(1)(c)(ii) and s. 25(1)(c)(iii),  
disclosure of the contract value and financial information in an agreement does not meet the test of  
harm.  
22. The First Applicant submits that the CFA contained in the Records at Issue is a standard  
commercial contract and based on the facts known to the [First] Applicant there is no evidence of a  
reasonable expectation of specific harm resulting from disclosure.”  
D. Section 27(1)(a): Legal privilege  
23. The First Applicant reproduces the s. 27(1)(a) discretionary exception on which the Public Body has  
relied, noting that although the Public Body has not specified which form of privilege it is claiming,  
but for the purpose of its 2014 First AIS, the First Applicant states it is assuming it is the solicitor  
client privilege that is being asserted. [NOTE: It is important to point out that the 2014 First AIS was  
provided over two years before the U of C and Lizotte decisions were decided by the SCC, which  
are discussed infra.]  
Section 27(1)(a): Legal Privilege: Test for solicitor client privilege  
24. Citing the SCCs decision Solosky v The Queen, [1980] 1 SCR 821, at p. 837 [Solosky] that held the  
three part test for where solicitor client privilege attaches is: (a) a communication between solicitor  
and client, (b) which entails the seeking or giving of legal advice, and (c) which is intended to be  
confidential by the parties, the First Applicant points to how the Commissioner has defined legal  
advice: a legal opinion about a legal issue, and a recommended course of action, based on  
considerations, regarding a matter with legal implications, citing Order 96-017, at para. 23.  
Section 27(1)(a): Legal Privilege: Negotiating parties are adverse in interest  
25. Citing the Morrison v. Rod Pantony Professional Corporation, 2008 ABCA 145 [Morrison] decision in  
the Court of Appeal, the First Applicant submits that in negotiating the CFA, the solicitor and client  
are adverse in nature, referred to in the Morrison decision at para. 25, in part, as follows: Retainer  
agreements are obviously in a special category. The client is negotiating an agreement with a  
person (the solicitor) that the client would usually look to for advice on such matters. In negotiating  
the agreement the parties are adverse in interest, contrary to the normal state of affairs where the  
solicitor is bound to represent the clients interest.[Emphasis in original]  
26. The First Applicant recites specific historical facts: the selected law firm groups efforts to be  
retained, the head of the Public Bodys decision to select it as the best choice for Alberta, and the  
Public Bodys hiring of a third party as legal counsel to negotiate the CFA on its behalf to  
successfully meet its mandate: paying the lowest contingency fee of any province.The First  
Applicant argues that the function of the third party law firm was to act, not as a lawyer, but as a  
consultant to negotiate the most favourable terms in the CFA for the Public Body.  
Section 27(1)(a): Legal Privilege: The Records at Issue do not meet the test for solicitor client  
privilege  
27. The First Applicant acknowledges that the Records at Issue were potentially communications made  
in connection with the eventual provision of legal advice, but, relying on the Imperial Tobacco  
decision argues that a CFA would only be privileged if disclosure would involve disclosure of  
information on which legal advice could be based, or the legal advice itself, or could reasonably lead  
to the discovery of legal advice passing between lawyer and client.”  
28. Preferring the approach in the Imperial Tobacco decision over those of adjudicators in BC and NB  
who both held that the CFAs in those cases were protected by solicitor client privilege (referred to  
47  
supra), the First Applicant submits that CFAs generally do not contain, reveal or relate to legal  
advice, and hence are not captured by solicitor client privilege.The Chief Justice in Imperial  
Tobacco stated it as follows:  
In principle, a contingency fee agreement which provides for the scope of the retainer, the  
fees payable and the manner of their payment in discharge of the retainer would not be  
expected to provide a means of ascertaining the nature of legal advice passing between  
lawyer and client, nor would it contain the type of information going to the merits of the matter  
at issue that would be necessary for the lawyer to have in order to be able to give legal  
advice.  
[Imperial Tobacco, at para. 96]  
29. The First Applicant submits that the form and content of CFAs are heavily regulated, citing Rule  
10.7(2) of the Alberta Rules of Court in full, and any defects in a CFA are strictly construed against  
the lawyer, with Courts having limited discretion to alleviate only minor technical oversights without  
import. Given the requirements set out in the Alberta Rules of Court and the limited judicial  
oversight role for CFAs, and based on the assumption the CFA in this case is in compliance with  
Rule 10.7(2), the First Applicant argues that there are several of the terms contained in the  
Records at Issue are unrelated to legal advice.”  
30. In addition, the First Applicant, citing para. 26 of the Blank decision in the SCC, submits that  
disclosure of the financial arrangements between a solicitor and a client in the CFA would not offend