By: Paul Emanuelli
This article is an extract from the 5th edition of Government Procurement.
In its March 2020 decision in Corner Brook (City) v. Newfoundland and Labrador (Information and Privacy Commissioner), the Supreme Court of Newfoundland and Labrador determined that the advice given to the City by its solicitor in connection with a procurement dispute remained privileged and protected from public access requests. The dispute dealt with a series of allegations raised by a backhoe contractor who was on the City’s contractor roster and challenged the lack of business it was awarded under that arrangement.
While that contractor’s various challenges and complaints proved unsuccessful, it subsequently filed a public access request to obtain access to the advice provided to the City by its solicitor in the course of the litigation. The provincial Information and Privacy Commissioner ordered the release of that information, but the City challenged that order. While the Court ruled that the litigation privilege disclosure exemption recognized under the provincial public access laws had expired once the litigation in question had concluded, it also ruled that the solicitor-client privilege that also protected that information did not expire at the end of the litigation and that the advice in question remained protected from public access disclosures. As this case illustrates, notwithstanding the high level of transparency that applies to public institutions under public access laws, information that falls under solicitor-client privilege will typically remain shielded from those disclosure duties so that public institutions can access confidential advice from their lawyers in relation to procurement disputes and other legal matters.
