Access to the amount of legal fees paid by a public body: the Court of Appeal rules

This article first appeared in the October 2017 edition of Proforma, a publication of the Quebec City Young Bar Association.

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 that the consideration of issues involving professional secrecy was beyond the expertise of the Commission, thereby requiring the application of the correctness standard of judicial review to its decisions in this instance.

As the Court pointed out, the Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information⁴ (the “Act”) allows any person who files a request thereunder to have access to the documents of a public body⁵. The Act does however place several limitations on this general right of access, including that consisting of the lawyer’s professional secrecy privilege. Consequently, to the extent that the information or document requested is covered by the privilege, a public body can refuse to provide access to it.

The Court explained that In order to determine whether the requested information or document is protected by professional secrecy, a two-step and wholly independent analysis must be performed.

First of all, it must be determined if the information or document requested comes within the scope of the professional secrecy privilege. To do so, the legal context in which the information or document is being sought must be considered. It must then be determined if what is being requested would reveal the nature of the services rendered, the essence of the advice or opinion provided, or if the request jeopardizes the confidential nature of the professional relationship between the lawyer and the client.

If the information or document comes within the ambit of any of the foregoing, the conclusion must be that it is covered by the professional secrecy privilege, confidential and immune from disclosure.

In cases where the lawyer’s mandate is complex or long-term, as was evidently the case in this matter, a rebuttable presumption applies⁶ whereby all communications between the client and the lawyer and all related information are prima facie presumed confidential. The onus is then on the person seeking to obtain the information or document to show that it is not protected by the professional secrecy privilege. In order to rebut the presumption, the applicant must demonstrate that what is being sought falls within an exception to professional secrecy or that the holder of the privilege has waived it.

If the first step of the analysis indicates that the information or document does not come within the ambit of professional secrecy, the examination proceeds no further. The question of whether there is an applicable exception to the privilege, or whether the privilege has been waived, is no longer germane. Unless it is protected by the litigation privilege or some other exception under the Act, the requested information is public, and the person requesting it from the public body has the right to obtain it.

In this instance the Court of Appeal based itself in particular on the Supreme Court of Canada’s decision in Maranda⁷. In that case, the Supreme Court concluded that the total amount of professional fees billed is, as a general rule, not covered by professional secrecy.

In the case canvassed here, the Court of Appeal concluded that the presumption had been rebutted, as disclosing only the amount of professional fees incurred would reveal no confidential information, and thus the information requested is not protected by the professional secrecy privilege. Consequently, access to the total fee amounts billed by the lawyers involved had to be granted.     

Conclusion

In brief, it must be borne in mind that each case is sui generis, as the purpose of the request must be clearly identified, for in some situations the information requested may be protected. Thus, notwithstanding this decision, each and every access-to-information request for accounts for professional fees should not be automatically granted. For instance, if information on the steps taken or the services rendered by a lawyer would be apparent from a statement of account requested, a public body would be justified in refusing to disclose the document.