In McGraw v. Southgate (Township), 2021 ONSC 2785 the Ontario Superior Court of Justice considered the appropriateness of disclosing a recording of a closed council meeting. The disclosure was sought in a wrongful dismissal suit brought by a former employee of the Township and the recording contained discussions related to the Township’s decision to terminate the Plaintiff’s employment. The Township opposed the disclosure of the recording on a number of grounds of privilege. The judge assessed the merits of each claim of privilege over the recording before ultimately ordering the disclosure of a part of the recording.
This decision is a good reminder to local governments that even discussions which occur during closed meetings may not remain confidential in all circumstances. As such, it is important to remain conscious that any recordings or notes of the closed meeting may one day be put before a Court. It is therefore prudent on local governments to maintain appropriate record-keeping practices in order to preserve as much confidentiality as possible.
The Plaintiff was employed by the Township as an emergency services administrative assistant and further served as a volunteer fire captain with the local fire department. Her employment with the Township was terminated at a closed council meeting on February 7, 2021. During the lawsuit over the termination, it came to light that there was a previously undisclosed recording of the February 7th meeting. Thereafter, the Plaintiff brought a court application seeking an order for disclosure of the recording in the within action.
The Township opposed the disclosure of the recording on the basis that it constituted a privileged communication and on the grounds that the communication was protected by one of:
- Solicitor-Client Privilege: protects confidential communications between a client and a lawyer for the purpose of seeking or providing legal advice, whether or not litigation is pending (Huang v. Silvercorp Metals Inc. 2017 BCSC 795 at para. 79);
- Litigation Privilege: protects any communications or other documents created or obtained for the dominant purpose of anticipated litigation (Huang v. Silvercorp Metals Inc. 2017 BCSC 795 at para. 79);
- Confidential Communication Privilege: requires an assessment on a case-by-case basis as to whether the communication was made in the confidence it would not be disclosed, whether confidentiality was integral to the relationship between the parties, and whether there are policy reasons for excluding the otherwise relevant evidence from disclosure (R v. Gruenke,  3 SCR 263).
The impugned recording was provided under seal to the court to determine its admissibility. The recording was reviewed and considered by the judge, who identified four parts of the recording in his reasons:
Part 1: Irrelevant discussions unrelated to the litigation matter;
Part 2: Statements relating to the intention of the Township to terminate the Plaintiff’s employment;
Part 3: Anticipated negotiations with the Plaintiff; and
Part 4: Questions and answers regarding the termination of the Plaintiff from Council.
The decision of the Court was ultimately a mixed result for both parties. It was acknowledged that Parts 3 and 4 of the recording were protected by privilege. However, Part 2 of the recording did not attract a claim of privilege and it was ordered that this part be disclosed in the proceedings.
In assessing the recording, the Court engaged in the four-part Wigmore test. This test is applied where a standard category of privilege, such as solicitor-client or litigation privilege, is not applicable. The test stipulates that the Court must balance the public interest in maintaining confidentiality in certain circumstances against the interests of the Court in full disclosure which may assist in the pursuit of the truth.
The Four components of the Wigmore test are as follows:
- The communications must originate in a confidence that they will not be disclosed;
- This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;
- The relationship must be one which in the opinion of the community ought to be sedulously fostered; and
- The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.
In apply the test to the parts of the closed meeting recording, Part 3 of the tape was ultimately found to be protected by a claim for Confidential Communication Privilege. In applying the Wigmore test, the Court concluded that those discussions pertained to anticipated negotiations with the plaintiff following their termination and that policy reasons supported it being kept confidential.
With regard to Part 4, the Court held that that part of the recording was protected by a claim of Solicitor-Client Privilege as it included discussions related to advice that human resources for the Township had received from legal counsel in relation to the termination of the Plaintiff. As there was a recognized category of privilege which applied, it was not necessary to apply the Wigmore test.
In respect of Part 2, the Court applied the Wigmore test and ultimately concluded that this portion of the recording ought to be disclosed on the basis that it provided the Township’s justification for the termination. The action was premised on an allegation of discrimination resulting in the termination. This part of the recording was therefore relevant to the issues at hand in the within action.
Accordingly, the need for disclosure of Part 2 outweighed the harm that disclosure of this part of the recording would cause to the relationship among municipal councillors and municipal staff. The same could not be said of Parts 3 and 4 of the recording. Discussions of legal advice, the anticipated negotiations, and the impact the Plaintiff’s termination would have on the fire department were all matters for which privilege was found to attach. It was found that compelling disclosure of those types of communications could significantly injure the relationship among municipal councillors and staff with little to no probative value gained.
Takeaways for Local Governments
The fine balancing act that is required in assessing the need for disclosure of relevant evidence against a claim for privilege was summarized by the former Chief Justice of Canada, Beverly McLachlin, in M. (A.) v. Ryan,  1 SCR 157 as follows:
Everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.”
Justice McLachlin further set out a practical compromise intended to maintain this balance by allowing limited disclosure of relevant information with irrelevant or privileged portions being protected.
…an order for partial privilege will more often be appropriate in civil cases where, as here, the privacy interest is compelling. Disclosure of a limited number of documents, editing by the court to remove non-essential material, and the imposition of conditions on who may see and copy the documents are techniques which may be used to ensure the highest degree of confidentiality and the least damage to the protected relationship, while guarding against the injustice of cloaking the truth.
Local governments should be aware that discussions which occur during closed meetings may not necessarily remain confidential in all circumstances. There is always the risk of such records being ordered disclosed by the Court when those discussions pertain to issues relevant to the litigation of a matter.
Further, even if parts of a record contain privileged matters, such as discussions of litigation risk or legal advice, the Court may exercise its discretion to separate portions of the record that do not fall within the claim for privilege.
As demonstrated by this Court case, closed-door discussions or other meetings that are presumed to occur in confidence may become a piece of the evidentiary record in a legal proceeding. However, the success of any application for disclosure will ultimately turn on an assessment of the claims for privilege in conjunction with the issues at hand in the suit.
As a best practice, it is beneficial for local governments and other public authorities to establish internal processes to review and identify records that may legitimately attract a claim for privilege early on in a lawsuit. This file management system should at a minimum aim to:
- Identify potential claims for privilege: Ask whether the communication involves legal advice or the creation of documents and records for the dominant purposes of litigation.
- Flag documents as privileged and confidential when identified: Doing so will minimize the risk of inadvertent disclosure of privileged communications in the early stages of an action.
- Have all identified records reviewed by internal or external legal counsel at the outset of a suit: an experienced lawyer will be best suited for assessing a claim for privilege and can identify any confidentiality or privacy concerns that may arise from the disclosure of a local government’s records.
- Manage the dissemination of documents in respect of which privilege may be asserted: This will ensure that the necessary element of confidentiality is not lost and avoid inadvertent disclosure of sensitive materials.
Such proactive measures and document management systems can streamline the litigation process and assist in maintaining privilege over confidential information.