Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 266 of that necessary exchange of information, the object of which is the giving or receiving of legal advice, it is protected by solicitor-client privilege.912 Legal advice means a legal opinion about a legal issue, and a recommended course of action, based on legal considerations, regarding a matter with legal implications.913 The second part of the test is satisfied where the person seeking advice has a reasonable concern that a particular decision or course of action may have legal implications and turns to their legal advisor to determine what those legal implications might be.914 The privilege applies not only to the records that actually give the legal advice but also to those that seek it and that provide factual information relative to which the advice is sought.915 Background information can be included as part of the definition of legal advice because it forms part of the “continuum of communication” between a solicitor and his or her client.916 Statements of fact are not themselves privileged. It is the communication of those facts between a client and a lawyer that is privileged.917 The privilege applies to records that quote or discuss the legal advice. For example, information in written communications between officials or employees of a government institution in which the officials or employees quote or discuss the legal advice given by the government institution’s solicitor.918 Business or policy advice provided by a lawyer will not attract the privilege. The Supreme Court of Canada in Campbell recognized this: It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of 912 Leo v. Global Transportation Hub Authority, 2019 SKQB 150 (CanLII) at [67], Canada (Public Safety and Emergency Preparedness) v Canada (Information Commissioner), 2013 FCA 104, 360 DLR (4th) 176; Redhead Equipment v Canada (Attorney General), 2016 SKCA 115, 402 DLR (4th) 649. 913 Definition originated from ON Order P-210 at p. 18. Adopted in SK OIPC Review Report F-2012-003 at [97]. Definition also adopted by AB IPC in Order 96-017. 914 AB IPC Order F2004-003 at [29]. 915 AB IPC Order F2004-003 at [31]. 916 AB IPC Order F2013-42 at [20]. 917 Stevens v. Canada (Prime Minister), [1984] 4 F.C. 89 (Fed. C.A.) at p. 109. 918 AB IPC Order 96-020 at [133] to [134]. Consistent with Mutual Life Assurance Co. of Can. v. Canada (Deputy Attorney General), [1988], 28 C.P.C. (2D) 101 (Ont. H.C.).
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