Responses to FOIs for legal fees show divergent approaches to access obligations
Published on March 15, 2024
Recently, I started a new job at The Globe and Mail. After nearly a decade on the investigative team, I’ve made the move to the Report on Business, where I’ll be covering corporate law. I have a lot of ideas for my new beat, but after spending two years reporting on access to information, one of the stories at the top of my list concerned the extent to which public bodies are hiring high-profile Bay Street firms to fight their access battles.
One of our first Secret Canada stories concerned Toronto doctor Brooks Fallis, who lost his job as interim medical director of critical care at William Osler Health System after speaking out about the provincial government’s handling of the pandemic. Dr. Fallis filed a series of freedom of information requests for records he believed may shed light on his termination.
The story highlights a litany of failures on the part of William Osler Health System with respect to how Dr. Fallis’s requests were handled, but one detail that has always stuck with me was the amount of money the hospital was spending on fighting Dr. Fallis’s appeals. Through an FOI request, Dr. Fallis learned that the hospital had paid Bay Street firm Borden Ladner Gervais LLP $132,092.46 to consult on FOI work between March 1, 2021, and March 31, 2022. The figure represents all of BLG’s work on FOI-related matters. (It’s not possible to obtain legal bills connected to one specific file, such as Dr. Fallis’s, as that information is protected by solicitor-client privilege.)
One of the first things I did in my new gig was file a dozen freedom of information requests with high-profile public bodies that are frequently targeted with access requests. Core governments – such as municipalities, ministries and departments – are unlikely to hire outside lawyers to handle access appeals, because they have lots of lawyers working on staff. I went through recent appeal decisions from Ontario’s information commissioner and made notes of public bodies that had faced multiple appeals in recent years that I thought were good candidates for hiring outside counsel.
I filed my requests on Nov. 29, 2023. This was the wording:
I am seeking access to invoices from external lawyers/firms that were generated in 2022 and 2023, relating to freedom of information/access to information work, such as consultation and advice or the handling of an appeal with the information commissioner. I am not seeking access to the legal advice itself, which would be protected under solicitor-client privilege. I am also not seeking access to invoices connected to a specific file, so you can redact any identifying information about what the given issue may be. My goal is to compile a total dollar amount paid to each firm over the given timeframe, as well as the name of the externally contracted firm(s) and lawyer(s).
The responses indicate all that is wrong with our freedom of information regime. Although all of the entities are in Ontario and are subject to the same law, many took widely divergent opinions on their legal obligations. Some institutions didn’t reply at all. The majority supplied the information without an additional fee, but two institutions – William Osler Health System and McMaster University – quoted The Globe $105 and $405 respectively for access to this public information.
Durham District School Board said “the total dollar amount paid to the law firm over the 2022-2023 timeframe is $71,454.41. The lawyer’s names are Scott Williams and Andrew Morvin at Hicks Morley Hamilton Stewart Storie LLP”.
Ontario Lottery and Gaming Corporation sent 128 pages of records of redacted copies of the raw invoices. The documents showed that OLG paid Gowling WLG a total of $150,705.60 over 36 invoices.
Ontario Power Generation sent 42 pages covering invoices from Torys LLP, however OPG redacted all the information including the dollar amounts.
Tribunals Ontario “did not receive invoices from external legal counsel which related to freedom of information/access to information requests, or Information and Privacy Commissioner (IPC) appeals during the above-noted time period.”
McMaster University replied that they had identified 258 pages of responsive records. The FOI coordinator said The Globe would be required to pay $405 for the information.
Queen’s University stated that no responsive records could be found. “While external counsel has been retained for assistance with appeals in the past (before a dedicated privacy officer was hired), Queen’s University relies on internal counsel for advice where required.”
Toronto Police said they could not locate any responsive records.
York Regional Police replied that they “did not consult or obtain advice from any external law firms or lawyers in relation to access to information matters in 2022 or 2023.”
Toronto District School Board reported that it spent $65,520.99 in the 2022-23 period. The fees were paid to Hicks Morley Hamilton Stewart Storie LLP and the lawyer was Scott T. Williams.
Kawartha Conservation did not respond.
Halton Health Care did not respond.
Metrolinx: at the end of February — three months after my request was filed — the transit agency wrote to say they had notified “third parties” (which is likely the impacted law firms) about my request. Those parties have a month to respond, so Metrolinx said I would receive a response after March 29, 2024.
University of Toronto disclosed the total amount in a single document. In 2022, the school spent nothing on external FOI work. In 2023, it paid $33,630.16 to Borden Ladner Gervais LLP in legal fees, disbursements, and HST.
William Osler Health System took nearly two months to reply. When they did, an interim decision letter said the hospital would release the information “in part” but they wanted The Globe to pay $105 for that information.
Are legal fees public information?
Here are some handy cases where adjudicators and judges found that legal fees are public information, but there are many more.
British Columbia
White Rock (City) (Re), 2017 BCIPC 60 (CanLII)
“In my view, it would be difficult to acquire or deduce privileged communications based on the disclosure of this limited legal fee information which is in an aggregate amount. No detailed information about the legal services provided will be disclosed to the Applicant since I have already determined that this information is protected by privilege and the City’s own evidence establishes that the legal advice sought during this period pertains to a wide range of freedom of information matters.
“A series of OIPC orders and court decisions have considered whether the disclosure of legal fees would reveal privileged communications. The presumption of privilege was rebutted when the legal fee information was a total or aggregate amount and no other detailed billing information had been disclosed.[51] Other OIPC orders and court decisions have found that the presumption of privilege was not rebutted when the access applicant had in depth knowledge as a former employee and had some legal training[52] or when he or she had background information about the specific dispute for which legal advice was sought.[53]”
Alberta
Edmonton (Police Service) (Re), 2008 CanLII 88778 (AB OIPC)
“The case law establishes that lawyers’ bills of account are presumed to be subject to solicitor-client privilege. However, the presumption is rebuttable. In an access request, the burden lies on the applicant to rebut the presumption. To determine whether the presumption is rebutted in this case, I will apply the test adopted by the British Columbia Court of Appeal in Legal Services Society v. British Columbia (Information and Privacy Commissioner),2003 BCCA 278 (CanLII), 14 B.C.L.R. (4th) 67, and adopted by the Ontario Court of Appeal in Ontario (Ministry of the Attorney General): Is there a reasonable possibility that the assiduous inquirer, aware of background information available to the public, could use the information requested concerning the amount of fees paid to deduce or otherwise acquire communications protected by the privilege? If so, then the information is protected by solicitor-client privilege. While the burden of proof lies on the Applicant, an applicant is at a disadvantage in making arguments or presenting evidence in relation to records he or she is unable to see or know the contents of. I will therefore consider the evidence of the bills of account to determine whether the information the Applicant requested could enable him to acquire communications protected by privilege or is neutral information that would not. The Applicant has not in fact specifically requested Bennett Jones’ bills of account, but asked for records containing information relating to the amounts paid by the Public Body in relation to complaints made about him to the Law Society. From his request and arguments, it is clear that he is not seeking any information from the bills of account other than the amounts billed. Having reviewed the information in the bills of account, I am satisfied that disclosing the total amount due, the firm letterhead, and the name and address of the Public Body from each bill of account would not enable the Applicant to acquire privileged communications.”
Ontario
“The IPC decided that information concerning the amounts paid for legal fees by the Attorney General pursuant to the court orders was not subject to client/solicitor privilege. In reaching that conclusion, he drew a distinction between facts which were not protected by the privilege and communications about facts which could be protected by the privilege. He placed the amount paid for legal fees by the Attorney General into the former category. … We see no reasonable possibility that any client/solicitor communication could be revealed to anyone by the information that the IPC ordered disclosed pursuant to the two requests in issue on this appeal. The only thing that the assiduous reader could glean from the information would be a rough estimate of the total number of hours spent by the solicitors on behalf of their clients. In some circumstances, this information might somehow reveal client/solicitor communications. We see no realistic possibility that it can do so in this case. For example, having regard to the information ordered disclosed in PO-1952, we see no possibility that an educated guess as to the amount of hours spent by the lawyers on the appeal could somehow reveal anything about the communications between Bernardo and his lawyers concerning the appeal.”
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