Provincial tax authority cannot invoke Crown interests in access to information matters, rules commissioner

A produce retailer that was targeted by provincial tax authorities won a legal battle after the Quebec Access to information tribunal held that Revenu Quebec must turn over information to the company as “Crown priority” cannot be invoked by the agency in access to information matters.

The decision, a welcome development that took the tax legal community by surprise, appears at first glance to hand taxpayers, particularly those who have been charged or are facing criminal charges, with a tangible means to obtain information that the provincial tax authority may be reluctant or unwilling to share, according to tax lawyers.

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Total amount of legal fees not necessarily covered by solicitor-client privilege rules Quebec appeal court

The total amount of professional billings paid to lawyers working on a mandate for public bodies is not necessarily automatically protected by solicitor-client privilege ruled the Quebec Court of Appeal.

In what is described as a precedent-setting ruling, the Quebec appeal court decision provides much-needed guidance and strikes a delicate balance between professional secrecy and public access to documents, according to legal experts.

“The importance of this lies with the distinction the Quebec appeal court makes between professional secrecy and public access to documents regarding legal fees paid by public bodies to lawyers,” said Pierre Trudel, a former director of Université de Montréal’s Public Law Research Centre. “The decision provides helpful guidance over what should remain protected by professional secrecy and what should be accessible to ensure public access to documents.”

But Bernard Pageau, who successfully plead the case, is under no illusions. Even if a leave to appeal to the Supreme Court of Canada is not filed or if the decision is not overturned, Pageau expects the ruling to upend longstanding practices by Quebec public bodies and the provincial Access to Information Commission gradually and begrudgingly.

“If it is a final decision, it will take some time before public bodies react and implement the changes,” said Pageau, the senior director of legal affairs at Québecor Média inc. “There may be public bodies that erroneously interpret the ruling or who will refuse (to grant access to documents) and we will end up having to bring the matter before the Quebec Access to Information Commission. But having a hearing before the Commission takes up to a year. That is a denial of democracy which prevents a citizen from exercising his democratic rights.”

In a unanimous decision, the Quebec appeal court held that legal billings are prime facie protected by professional secrecy because it generally contains a description of accomplished tasks, services rendered and often advice given but the total amount of legal fees paid to a lawyer working on a mandate for public bodies, such as municipalities or school commissions, are not automatically covered by solicitor-client privilege.

In a bid to reconcile the fundamental importance of privilege attached to the solicitor-client relationship with the principle of public access to documents, Trudel points out that Quebec appeal court Justice Paul Vézina introduced a two-step test. The first part of the test involves determining the “scope of the secrecy, that is whether the information is covered by solicitor-client privilege,” said Justice Vézina in a 19-page ruling in Kalogerakis c. Commission scolaire des Patriotes, 2017 QCCA 1253. Justices Robert Mainville and Denis Jacques (ad hoc) concurred with the August 22nd decision.

If it is, then the second part of the test comes into play: “whether or not this is one of the rare cases where it is justified to dismiss and allow the disclosure of information that is otherwise inaccessible,” added Justice Vézina in a decision that overturned the judicial review by Quebec Superior Court Justice Suzanne Courchesne and restored a decision by Court of Quebec Justice Diane Quenneville in Kalogerakis c. Commission scolaire des Patriotes, 2014 QCCQ 4167.

“With this decision, citizens and taxpayers will have more access to the total amount of legal fees disbursed by public bodies,” said Pageau. “There will be exceptions. It will always depend on whether disclosing the total amount will disclose confidential information. But now the burden of proof rests with public bodies to prove that.”

The case dates back to 2010 when a journalist working for the tabloid Journal de Montréal sought to find out the amount that a Montreal suburb paid lawyers in a suit launched by a citizen. The newspaper also wanted to know how much four Quebec school commissions paid in legal fees in a class action suit that was filed against them. In both cases the Quebec Access to Information Commission refused to provide the information, holding that the amount of legal billings is information protected by solicitor-client privilege as per section 9 of the Canadian Charter of Rights and Freedoms. The Commission relied, as it has for more than a decade, on the decision Commission des services juridiques c. Gagnier, [2004] CAl 568 – a ruling that held that legal billings are automatically protected by professional secrecy. “Since 2004, we could obtain nothing,” said Pageau. “It was systematic. As soon as we made a request for an access to information document asking how much in legal fees was spent in a case, they would simply respond we cannot because it was covered by solicitor-client privilege.”

The City of Terrebonne, a Montreal bedroom community, and the four school commissions argued that disclosing legal billings would reveal the financial means it has to defend itself and could compromise its ability to reach an out-of-court settlements.

Justice Vézina dismissed the arguments as speculative and unconvincing. He said that disclosing the total amount of legal billings does not infringe solicitor-client privilege in these cases because it does not reveal the services or advice provided by lawyers.

Just as importantly, Justice Vézina held that the objective of the province’s Act respecting Access to documents held by public bodies and the Protection of personal information is to spur “informed debate” and that cities and elected officials are accountable to voters.

“Municipalities have public funds to manage, and it is in the public’s interest to know what kind of resources a municipality devotes to legal fees,” noted Trudel. “That can be an indicator of how a municipality is managed. That is of public interest.”

Legal counsel for both the City of Terrebonne and the school commissions did not return calls.

This article originally appeared in The Lawyer’s Daily, published by LexisNexis Canada Inc.

Quebec chips away at government transparency

Quebec, once a pioneer that lead the movement towards greater government transparency, is now among the least transparent provinces in Canada after successive provincial governments introduced more than 150 legislative exemptions that undermined the province’s access to information legislation, according to a recently published comprehensive report by Quebec’s Commission d’accès à l’information.

With Quebec ranking 10th out of 14 jurisdictions in Canada, and 57th in the world, behind Honduras and Romania, the Quebec government should overhaul the provincial access to information legislation to compel all public bodies, even those partially financed by the provincial government, to be subjected to the access to information law, noted the 214-page, five-year report that issued 67 recommendations. The Commission, which also oversees provincial privacy legislation, also called on the Quebec government to beef up privacy protection measures.

“The access to information law has not been the subject of a thorough reform in 35 years, and the privacy legislation in 22 years,” remarked Diane Poitras, the Commission’s vice-president. “It’s time to re-establish the balance between the rights of citizens — who are calling for greater transparency and stronger privacy protection measures — and the needs of business and government organizations to collect and use” — and in some cases safeguard — information.

The Quebec government last year published a 191-page discussion paper that pledged to curb the culture of secrecy that is seemingly well-entrenched within the public sphere by relaxing restrictions and vowing to taking a proactive approach towards releasing information. But the Commission said the government’s proposals do not go far enough to close the loopholes that currently exist and nor does it introduce measures to strengthen the province’s privacy legislation, both of which should be “modernized” simultaneously to ensure the harmonization of rules and concepts, said the report.

The paramountcy of public interest should be at the heart of reforms to access to information legislation, asserts the Commission. Access to documents in the hands of public bodies should be the rule rather than the exception, something that is not the case. Legislative exemptions are often scripted in very broad terms, noted Poitras. In many cases exemptions allow a public body to deny access to a document simply because it corresponds to a certain category of information. In other cases, a public body can reject a request for a government report if the report is less than 10 years old. In yet others, the decision rests in the hands of civil servants who do not have to provide any justification for their refusal.

“Little by little, stroke by stroke, law after law there were exemptions that were added, and faced with these restrictions judges took a conservative approach and themselves added yet more restrictions,” said Vincent Gautrais, a Université de Montréal law professor and chair holder of the L.R. Wilson Chair in Information Technology and E-Commerce Law. “Even interpretations by the Commission’s  administrative adjudicators at times added to the restrictive jurisprudence.”

The Commission’s report recommends that public bodies should only be allowed to refuse access to information requests only if there is a “real” risk of harm. “Why should a report that contains advice or recommendations be in itself confidential,” asked rhetorically Poitras. “One must evaluate the context and possible consequences of divulging the information to decide whether or not it should be accessible.”

The Commission also “invites” the provincial government to close loopholes now in existence that grant professional corporations “quasi absolute” discretion to decide what documents it can release. And it urges the government to clarify access to information provisions surrounding professional secrecy because a growing number of public bodies are invoking professional secrecy to deny access to documents prepared by professionals covered by Quebec’s Professional Code. Though all Quebec professionals subjected to the Code can invoke professional secrecy, the report believes that professional secrecy should be summoned only in exceptional circumstances when refusing access to information.

On the privacy front, the Commission recommends following in the footsteps of the federal government and make it a mandatory requirement for organizations to give notice to affected individuals and the Commission when a data breach takes place. (The federal Digital Privacy Act received royal assent more than a year ago but is still not in force because the federal government has to complete the drafting of data breach notifications and reporting regulations). The Commission is also calling on the provincial government to bolster consentment requirements around the collection, use or disclosure of personal information by including the notion of “sensitive” information.

All in all, the Commission’s 67 recommendations fall broadly into three distinct categories, remarked Loïc Berdnikoff, an access to information and privacy expert with Montreal law firm Lavery, de Billy. Some of the recommendations essentially seek to legislate certain rules that were developed over the years by jurisprudence to “eliminate any ambiguities,” other recommendations such as data breach notifications strive for a “certain homogeneity” with Canadian jurisdictions, and yet others will impose new obligations on public and private organizations alike, said Berdnikoff. “The report seeks to address some of the difficulties the Commission has faced over the past few years or expects to face in the future,” said Berdnikoff. “The Commission is hoping for greater transparency within public bodies while providing greater protection around the collection and use of personal information. Obviously this was a very strong statement by the Commission that something needs to be done, and it’s not just a general statement. They have been able to identify at least 67 problems.”

Gautrais believes that the Commission’s recommendations are far too fussy and not nearly as ambitious and bold as they should have been. He also warns that careful thought should be given to a legislative overhaul as legislators, albeit with good intentions, end up creating more problems than solving them when trying to address issues sparked by new technologies.

“What the Commission is doing with this very long report is patch things up,” said Gautrais. “Almost all of the recommendations are centred on details. But judges on the whole already do a good job of adapting changes into current legislation. Each time legislators decide that because there are new technologies the legislation should be changed, there are new difficulties and challenges. As a general rule, jurisprudence does a relatively good job of adapting to new realities.”

This story was originally published in The Lawyers Weekly.