Canada: Access To The Amount Of Legal Fees Paid By A Public Body: The Court Of Appeal Rules

Can the professional secrecy privilege be invoked to defeat an access-to-information request seeking to learn the amount of legal fees billed to a public body? That was the issue ruled on by the Quebec Court of Appeal in its decision in Kalogerakis v. Commission scolaire des Patriotes1 rendered on August 22, 2017.

That decision was pursuant to the denial of two access-to-information requests on the grounds that the requested information was protected by the professional secrecy privilege of a lawyer. In the first case, the plaintiff sought to learn the amount of legal fees paid by the respondent school boards in defending against a class action. In the second case, a private citizen wanted to find out the amount of legal fees paid by a municipality in defending against a civil liability lawsuit involving police ethics that the citizen himself had instituted against it.

The previous decisions

Quebec's access to information commission (the "Commission") confirmed the grounds for refusing the requests relied on by both public bodies. Basing itself on a previous judgment2, the Commission concluded that an account for professional services rendered is protected in its entirety by the professional secrecy privilege.

On appeal, the Court of Québec overturned, in a single judgment, both of the Commission's decisions. It held that the Commission erred by automatically concluding that the requested information was protected by the professional secrecy privilege, as it revealed nothing about confidential information imparted to the lawyers or the opinions received from them.

The school boards and the municipality then filed a motion for judicial review of the Québec Court's decision by the Superior Court of Quebec, which overturned it and upheld both of the Commission's decisions.

The decision of the Quebec Court of Appeal

For the reasons drafted by Justice Paul Vézina, the Court of Appeal reinstated the decision of the Court of Québec, concluding that the total amount of professional fees incurred would disclose no confidential information and was thus not protected by the professional secrecy privilege.

The Court began its analysis by stating that the "correctness" standard of judicial review was to be applied to the decisions of the Commission. The Court then emphasized the fundamental importance of the professional secrecy of a lawyer and the quasi-constitutional status of the privilege in our justice system3. In the Court's view it was evident that the consideration of issues involving professional secrecy was beyond the expertise of the Commission, thereby requiring the application of the correctness standard of judicial review to its decisions in this instance.

As the Court pointed out, the Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information4 (the "Act") allows any person who files a request thereunder to have access to the documents of a public body5. The Act does however place several limitations on this general right of access, including that consisting of the lawyer's professional secrecy privilege. Consequently, to the extent that the information or document requested is covered by the privilege, a public body can refuse to provide access to it.

The Court explained that In order to determine whether the requested information or document is protected by professional secrecy, a two-step and wholly independent analysis must be performed.

First of all, it must be determined if the information or document requested comes within the scope of the professional secrecy privilege. To do so, the legal context in which the information or document is being sought must be considered. It must then be determined if what is being requested would reveal the nature of the services rendered, the essence of the advice or opinion provided, or if the request jeopardizes the confidential nature of the professional relationship between the lawyer and the client.

If the information or document comes within the ambit of any of the foregoing, the conclusion must be that it is covered by the professional secrecy privilege, confidential and immune from disclosure.

In cases where the lawyer's mandate is complex or long-term, as was evidently the case in this matter, a rebuttable presumption applies6 whereby all communications between the client and the lawyer and all related information are prima facie presumed confidential. The onus is then on the person seeking to obtain the information or document to show that it is not protected by the professional secrecy privilege. In order to rebut the presumption, the applicant must demonstrate that what is being sought falls within an exception to professional secrecy or that the holder of the privilege has waived it.

If the first step of the analysis indicates that the information or document does not come within the ambit of professional secrecy, the examination proceeds no further. The question of whether there is an applicable exception to the privilege, or whether the privilege has been waived, is no longer germane. Unless it is protected by the litigation privilege or some other exception under the Act, the requested information is public, and the person requesting it from the public body has the right to obtain it.

In this instance the Court of Appeal based itself in particular on the Supreme Court of Canada's decision in Maranda7. In that case, the Supreme Court concluded that the total amount of professional fees billed is, as a general rule, not covered by professional secrecy.

In the case canvassed here, the Court of Appeal concluded that the presumption had been rebutted, as disclosing only the amount of professional fees incurred would reveal no confidential information, and thus the information requested is not protected by the professional secrecy privilege. Consequently, access to the total fee amounts billed by the lawyers involved had to be granted.


In brief, it must be borne in mind that each case is sui generis, as the purpose of the request must be clearly identified, for in some situations the information requested may be protected. Thus, notwithstanding this decision, each and every access-to-information request for accounts for professional fees should not be automatically granted. For instance, if information on the steps taken or the services rendered by a lawyer would be apparent from a statement of account requested, a public body would be justified in refusing to disclose the document.

This article first appeared in the October 2017 edition of Proforma, a publication of the Quebec City Young Bar Association.


1 2017 QCCA 1253

Commission des services juridiques v. Gagnier, [2004] CAI 568 (C.Q.)

3 Section 9, Charter of Human Rights and Freedoms, CQLR, c. C-12

4 R.L.R.Q., c. A-2.1.

5 Section 9, An Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, CQLR, c. A-2.1

6  Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc.,  2004 SCC 18, paras. 41-42

7 Maranda v. Richer, 2003 SCC 67

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions