The B.C. government is going to court to keep a lid on how much it has spent fighting Cambie Surgeries Corp.'s constitutional challenge of the Medicare Protection Act.
The Attorney General of British Columbia filed a petition in B.C. Supreme Court on September 25, naming the Office of the Information and Privacy Commissioner and the Canadian Constitution Foundation as respondents. The foundation, which touts itself as an "independent and non-partisan" charity run by former Stephen Harper advisor Howard Anglin, is "providing financial and legal support to the plaintiffs in the Cambie Litigation," the petition states.
In January 2017, the foundation submitted a Freedom of Information request to find out how much the government had spent fighting the case since 2009. In response, the government withheld the records claiming they were covered by solicitor-client privilege; which the foundation challenged this and requested a review by an adjudicator.
"The Ministry argued that the relevant British Columbian case law clearly established that interim legal costs are subject to solicitor client privilege and outlined a number of privileged inferences that could be extracted from the billing information," the petition states.
On August 14, 2018, the adjudicator "concluded that the Interim total cost was not subject to solicitor-client privilege" and ordered the government to hand over the records by September 26.
The Attorney General claims the same adjudicator on the same day "rendered a separate decision concerning a similar request for litigation costs in the Cambie litigation over a shorter time period" and "reached the opposite conclusion, confirming the Ministry's decision to withhold records. "
Lead counsel on the case for the government, Heather Lewis, claims in an affidavit that releasing cost information could shed light on "a number of privileged inferences" including the government's "state of preparation," "the amount of resources the Province is willing to spend on the litigation," "the Province's litigation strategy" and the "importance of the case to the Province."
"In her Reasons, the Adjudicator disregarded the risk that privileged information could be abstracted from the interim total cost," the petition states. "Her decision was based upon flawed reasoning."
The attorney seeks to set aside the adjudicator's decision requiring the release of the records under the Freedom of Information and Protection of Privacy Act. The petition's factual basis has not been tested in court and the Canadian Constitution Foundation and the Privacy Commissioner had not filed responses by press time.