British Columbia Information and Privacy Commissioner Upholds Solicitor-Client Privilege in Whistler Resort Municipality Case

The British Columbia Information and Privacy Commissioner has issued a decision upholding the Resort Municipality of Whistler's decision to withhold information under solicitor-client privilege. The decision responds to an access request from a registered strata corporation seeking information related to a rezoning assessment for a specific piece of land.

Key Takeaways:

• The decision applies the test for solicitor-client privilege as expressed by the Supreme Court of Canada in Pritchard v Ontario (Human Rights Commission).
• The Municipality was found to have established that all the information it withheld under s. 14 is subject to solicitor-client privilege.
• The information in dispute was contained in five emails and two email attachments sent between two Municipality employees and a lawyer.
• The Municipality's Manager provided an affidavit outlining the factors considered in exercising discretion under s. 14, including previous decisions of the courts and the OIPC interpreting section 14 of FIPPA.
• The Commissioner declined to order the Municipality to reconsider its discretion in this case.

Statistics:

• The total number of pages of responsive records was 374 pages.
• The Municipality withheld 11 pages of emails and email attachments under s. 14.
• The emails and attachments were written communications between the Municipality and its legal advisors.
• The Municipality's Manager stated that the information in dispute was comprised of written communications directly related to the seeking, formulating, or giving of legal advice.

Sources:

• British Columbia Information and Privacy Commissioner, 2024 BCIPC 27, "Order F24-21, THE RESORT MUNICIPALITY OF WHISTLER" (2024-03-21)
• Pritchard v Ontario (Human Rights Commission), [1999] 2 S.C.R. 1, Supreme Court of Canada