On July 12th, the British Columbia Supreme Court held that a requester had not rebutted the presumption of privilege that applied to the total amount spent by government in an ongoing legal dispute. Here is the court’s argument for the withholding of such information:
[61] The Adjudicator’s reasoning, adopted by CCF on this review, is in brief that it is clear from the facts available in the public record that the amount of legal expenditure is high. Knowing how high could only confirm this, and no more. This echoes CCF’s submission to the Adjudicator, cited at para. 35 of the Decision, that “knowing whether the total cost to date are ‘$8 million or $12 million or $20 million’ may prove embarrassing for the Province, but will not reveal privileged communications”.
[62] In my view this line of reasoning is not sufficient to discharge the onus of proof to rebut the presumption of privilege, particularly in circumstances of ongoing litigation. I agree that the Cambie Litigation is an important constitutional case, that it is hard fought on both sides and that the amount of legal cost is undoubtedly substantial. However, in my view, an assiduous inquirer, aware of the background available to the public (which would include how many court days had been occupied both at trial and in chambers applications, the nature of those applications, the issues disclosed in the pleadings, and the stage of the litigation for the period covered by the request), would, by learning the legal cost of the litigation, be able to draw inferences about matters of instruction to counsel, strategies being employed or contemplated, the likely involvement of experts, and the Province’s state of preparation. To use the CCF submission quoted by the Adjudicator, the difference between an $8 million expenditure and a $20 million expenditure would be telling to the assiduous inquirer and would in my view permit that inquirer to deduce matters of privileged communication.
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