Ontario Children’s Lawyer v Ontario Information and Privacy Commissioner [Privacy of OCL Records]
Court: Ontario Court of Appeal, 2018
JFCY intervened in this case.
The background to this case is that a child was represented in a custody and access dispute before the family court by the Children’s Lawyer for Ontario (Children’s Lawyer). Following the family court process, the father made an application to the Ministry of Attorney General (MAG) under the Freedom of Information and Protection of Privacy Act (FIPPA) for a copy of his child’s records.
Decision making history:
- The Children’s Lawyer took the position that FIPPA does not apply to private litigation files involving their provision of services to children.
- MAG advised the father that they did not have custody or control of the records and FIPPA did not apply.
- The father appealed to the Information and Privacy Commissioner (IPC) and the IPC found that the Children’s Lawyer was a branch of MAG, that MAG had custody and control of the Children’s Lawyer records, and ordered MAG to issue an access decision to the father.
- The decision of the IPC was appealed by the Children’s Lawyer to the Divisional Court, who upheld the IPC’s decision.
- This was appealed again to the Ontario Court of Appeal (this decision).
The Court of Appeal overturned the earlier decisions and held that the records of the Children’s Lawyer were not subject to FIPPA, noted the unique role Children’s Lawyer in the judicial process, and the relationship between the child and the Children’s Lawyer required a heightened degree of protection.
JFCY is pleased that the Court held that the UN Convention on the Rights of the Child “requires that children be afforded special safeguards, care and legal protection by the courts on all matters involving their best interests, including privacy” and that our submissions were reflected in their decision.
Overview of JFCY’s submissions:
- Children are individual rights holders entitled to form fully protected solicitor-client relationships independent of adult involvement;
- Children’s inherent vulnerabilities entitle them to a heightened level of protection in the justice system;
- Solicitor-client privilege does not cover all client records in the possession of a lawyer, but all client records in the possession of a lawyer (both privileged and non-privileged) are covered by a lawyer’s professional, ethical, and fiduciary duties of confidentiality and loyalty; and
- Intrusion into the fiduciary duties of lawyers amounts to a fundamental erosion of the solicitor-client relationship, which in turn undermines the integrity of the administration of justice as a whole.
The significance of this case is that the records of the Children’s Lawyer are confidential and privileged; and can not be subject to FIPPA requests. Ensuring that the child’s voice will be heard, respected, and protected throughout the process of litigation.
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