The Office of the Information Commissioner stated July 25 that the Department of Justice has the option to withhold its litigation costs from taxpayers by invoking “solicitor-client privilege.”
Members of Parliament have demanded that all expenditures and expenses incurred by federal lawyers and the justice department be disclosed, according to Blacklock’s Reporter.
“The Department of Justice indicated legal billing information is subject to solicitor-client privilege which is derived from the fact these amounts provide a summary or history of what counsel has done in preparation for a case,” the Commissioner’s office wrote. “They also form part of the continuum of communication between client and solicitor for the purpose of seeking or giving legal advice.”
According to the statement, federal lawyers have the right to exercise “discretion” when it comes to concealing expenses. The Department of Justice views itself as the solicitor representing various “client” departments and agencies in civil court.
The decision by the Commissioner concerned an Access to Information request regarding legal fees incurred by federal lawyers in an Ontario property dispute. Privileged records such as legal advice have privacy protections under the Act.
“Litigation privilege generally expires when the litigation ends except when related litigation is pending or is reasonably expected to occur,” wrote the Commissioner’s office.
However, litigation costs have been disclosed on past occasions. In 2018, the justice department reported that it spent $946,622 in a dispute with the owners of a restaurant in Nanaimo, B.C., that had been falsely accused by the Canada Revenue Agency of tax fraud. Eventually, the restaurant owners were acquitted and the judge ruled that the CRA had been “high-handed, reprehensible, and malicious.”
“The presumption of innocence appeared to be meaningless,” a British Columbia Supreme Court justice wrote in the case.
Parliamentarians have derided the decision to hide the justice department’s legal fee expenditures.
“The department cannot speak to a specific amount,” staff told the Commons government operations committee April 13 following a request from B.C. New Democrat MP Gord Johns for information about the cost of 16 years of Indigenous child welfare litigation.
In a June 20 report, “The State of Canada’s Access to Information System,” the Commons Access to Information committee said all costs covered by the taxpayer, including legal fees, must be disclosed.
“The recommendations that are in this report are meant and designed to fix what is a broken system,” Conservative MP John Brassard, committee chair, said.
“We recognize there is always more to do,” said Mr. Trudeau. “Transparency is an important part of building confidence for Canadians in their governments.”
