Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 265 counsel (i.e., having both legal and non-legal responsibilities), each situation must be assessed on a case-by-case basis to determine if the privilege arises in the circumstances.905 Communications can be written or verbal.906 The privilege does not necessarily apply to attachments to documents (e.g., attachments to emails) even those attached to genuine legal advice. On the other hand, an attachment that is an integral part of a legal opinion in the covering email or document could be privileged. For example, if the attachment would provide some basis for a reader to determine some or all of the opinion or advice. The party claiming privilege over an attachment must provide some basis for the claim. The point is that it is the content of the communication and who is communicating, not the form of the communication that determines privilege and confidentiality. Furthermore, it makes no practical sense to parse the contents of attachments in order to sever the parts that are privileged from the parts that are not. If some of the attachment is part of the legal advice, then all of it is protected by solicitor-client privilege.907 Written communications between officials or employees of a government institution, quoting the legal advice given orally by the government institution’s solicitor, or employee’s notes documenting the legal advice given orally by the solicitor could qualify. This includes notes “to file” in which legal advice is quoted or discussed.908 The privilege does not attach to advice provided by someone who is not a lawyer; the advice must be sought from a professional legal advisor in his or her capacity as such.909 Where the communication itself, between client and solicitor, constitutes a criminal act, or counsels someone to commit a crime, the privilege will not apply.910 2. Does the communication entail the seeking or giving of legal advice? The scope of solicitor-client privilege is broad. It applies to all communications made with a view of obtaining legal advice.911 If a communication falls somewhere within the continuum 905 John Sopinka et al., The Law of Evidence in Canada, 5th Ed (Toronto: LexisNexis Canada Inc., 2018) at § 14.125. 906 Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353 at p. 33. 907 British Columbia (Minister of Finance) v. British Columbia (Information and Privacy Commissioner), 2021 BCSC 266 at [110] to [112]. 908 AB IPC Order 99-013 at [62] to [66]. 909 Solosky v. The Queen, [1980] 1 SCR 821, 1979 CanLII 9 (SCC). 910 Stevens v. Canada (Prime Minister), [1998] 4 FC 89, 1998 CanLII 9075 (FCA). 911 Leo v. Global Transportation Hub Authority, 2019 SKQB 150 (CanLII) at [67], Maranda v Richer, 2003 SCC 67, [2003] 3 CR 193.
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