ABCA overturns Alberta OIPC’s lawyer invoices decision

Onus weighs heavily in resolving an access request for information in lawyer invoices. Given the presumption of privilege established by the Supreme Court of Canada in Maranda v Richer, an institution need only identify the information at issue as information in lawyer invoices and ride the Maranda v Richer presumption.

The University of Calgary did just that in claiming that “narrative information” in certain legal invoices was exempt from the right of public access. The OIPC rejected the University’s claim, relying on the basic statutory onus embedded in section 71(1) of the Alberta Freedom of Information and Protection of Privacy Act and noting that the University provided no affidavit evidence. Regarding Maranda v Richer, the adjudicator said:

A common law principle such as that articulated in Maranda and one which is not clearly applicable in a circumstance other than when the state is contemplating exercising a search warrant in a law office, cannot serve to supplant the clear statement of Legislative intent set out in section 71(1) – that a public body must prove its case.

The Court held that this reasoning invited a reversible error. Long live Maranda v Richer.

University of Calgary v Alberta (Information and Privacy Commissioner), 2019 ABQB 950 (CanLII).