Mediation or case-by-case privilege
In the Commissioner’s Review Report 065-2020, he considered if mediation or case-by-case privilege applied to the records in question. The public body had claimed mediation or case-by-case privilege pursuant to subsection 22(a) of The Freedom of Information and Protection of Privacy Act (FOIP).
The Commissioner considered orders issued by the Office of the Information and Privacy Commissioner for Prince Edward Island (PEI IPC) and the Office of the Information and Privacy Commissioner of Alberta (AB IPC) in his analysis of the public body’s claim of mediation or case-by-case privilege. I will briefly describe the orders by PEI IPC and AB IPC.
In Order FI-09-005, the PEI IPC summarized what the Ontario Superior Court of Justice Divisional Court and the Supreme Court of Canada has said on mediation privilege and how it is considered on a case-by case basis:
In Rudd v. Trossacs Investments Inc. 2006 CanLII 7034 (Ont. S.A.), Swinton, J. reviewed the case law in respect of mediation privilege. At pp. 25-30, the justice says:
 Common law principles have recognized a privilege for confidential communications in certain important societal relationships. In Slavuytych v. Baker (1975), 1975 CanLII 5 (SCC), 55 D.L.R. (3d) 224, the Supreme Court of Canada held that the four conditions from Wigmore on Evidence should be applied to determine whether communications are privileged (at 228):
(1) The communications must originate in a confidence that they will not be disclosed.
(2) The element of confidentiality must be essential to the maintenance of the relationship in which the communications arose.
(3) The relationship must be one which, in the opinion of the community, ought to be “sedulously fostered”.
(4) The injury caused to the relationship by disclosure of the communications must be greater than the benefit gained for the correct disposal of the litigation.
 In Slavuytych, the Court held that a document submitted in a university tenure process was privileged – in part because the document was labeled “confidential”, and in part because of the importance of confidentiality in the tenure process, where individuals are asked to give their frank opinion of colleagues.
Swinton, J. also refers to a more recent case from the Supreme Court of Canada, saying:
 In M.(A.) v. Ryan 1197 CanLII 403 (S.C.C.), (1997), 1997 CanLII 403 (SCC), 143 D.L.R. (4th) 1 (S.C.C.), the Supreme Court reaffirmed the approach in Slavuytych, making it clear that privilege is to be determined on a case by case basis (at para. 20).
In my opinion, the Supreme Court of Canada’s views on the existence of legal privilege, outside of solicitor-client privilege or parliamentary privilege, still prevails. Thus, it is a matter of determining whether, on the facts of the case, the conditions set out in Wigmore on Evidence have been met.
Further, in Order 96-020, the AB IPC provides that case-by-case privilege can apply to two types of records: 1) private records, or 2) Crown records. Different criteria will apply to each type of records in determining whether case-by-case privilege applies. If the records are “private records”, then the “Wigmore criteria” as set out in PEI IPC’s Order FI-09-005 (quoted above) can be used to determine if case-by-case privilege applies. If the records are Crown records, then AB IPC indicated that the Crown “must put forth a proper claim based on the criteria for public interest immunity” in determining if case-by-case privilege applies. AB IPC said:
[79.] For a case-by-case privilege to attach to Crown records, the Court in Carey v. Ontario said that the Crown must put forth a proper claim based on the criteria for public interest immunity. Those criteria, which have been adopted by Leeds v. Alberta (Minister of the Environment) (1990), 69D.L.R. (4th) 681 (Alta. Q.B.), are:
(1) The nature of the policy concerned.
(2) The particular contents of the documents.
(3) The level of the decision-making process.
(4) The time when a document or information is to be revealed.
(5) The importance of producing the documents in the administration of justice, with particular consideration to:
(i) the importance of the case
(ii) the need or desirability of producing the documents to ensure that the case can be adequately and fairly represented
(iii) the ability to ensure that only the particular facts relating to the case are revealed.
(6) Any allegation of improper conduct by the executive branch towards a citizen.
In Review Report 065-2020, the Commissioner determined that the records were private records. As such, he applied the Wigmore criteria to determine if mediation or case-by-case privilege applied to the records. To see the Commissioner’s analysis, findings, and recommendations, check out the report here.
In Review Report 171-2019, the Commissioner determined that records were Crown records. Therefore, he adopted the public interest immunity criteria set out in AB IPC Order 96-020.
When considering if mediation or case-by-case privilege applies to records, public bodies should do the following:
- Determine if the records are “private records” or “Crown records”.
- If the records are “private records”, then apply the Wigmore criteria to determine if mediation or case-by-case privilege applies.
- If the records are “Crown records”, then apply the public interest immunity criteria.
In either case, if public bodies are claiming the records fall into either category, then the public body should be ready to make the case in the event a review by our office is undertaken as the burden of proof rests with the public body.