Access To The Amount Of Legal Fees Paid By A Public Body: The Court Of Appeal Rules
Can the professional secrecy privilege be invoked to defeat an access-to-information request seeking to learn the amount of legal fees billed to a public body? That was the issue ruled on by the Quebec Court of Appeal in its decision in Kalogerakis v. Commission scolaire des Patriotes1 rendered on August 22, 2017.
That decision was pursuant to the denial of two access-to-information requests on the grounds that the requested information was protected by the professional secrecy privilege of a lawyer. In the first case, the plaintiff sought to learn the amount of legal fees paid by the respondent school boards in defending against a class action. In the second case, a private citizen wanted to find out the amount of legal fees paid by a municipality in defending against a civil liability lawsuit involving police ethics that the citizen himself had instituted against it.
The previous decisions
Quebec's access to information commission (the "Commission") confirmed the grounds for refusing the requests relied on by both public bodies. Basing itself on a previous judgment2, the Commission concluded that an account for professional services rendered is protected in its entirety by the professional secrecy privilege.
On appeal, the Court of Québec overturned, in a single judgment, both of the Commission's decisions. It held that the Commission erred by automatically concluding that the requested information was protected by the professional secrecy privilege, as it revealed nothing about confidential information imparted to the lawyers or the opinions received from them.
The school boards and the municipality then filed a motion for judicial review of the Québec Court's decision by the Superior Court of Quebec, which overturned it and upheld both of the Commission's decisions.
The decision of the Quebec Court of Appeal
For the reasons drafted by Justice Paul Vézina, the Court of Appeal reinstated the decision of the Court of Québec, concluding that the total amount of professional fees incurred would disclose no confidential information and was thus not protected by the professional secrecy privilege.
The Court began its analysis by stating that the "correctness" standard of judicial review was to be applied to the decisions of the Commission. The Court then emphasized the fundamental importance of the professional secrecy of a lawyer and the quasi-constitutional status of the privilege in our justice system3. In the Court's view it was evident...
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