Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 268 privilege.925 Without confidentiality there can be no privilege and when confidentiality ends so too should the privilege.926 As a general rule, the client (usually a government institution) must not have disclosed the legal advice (either verbally or in writing) to parties who are outside of the solicitor-client relationship.927 Intended confidentiality, though necessary, is not sufficient to attach protection to communications between a lawyer and the government institution – legal advice must be involved.928 This distinction was emphasized by the Ontario Court of Appeal in Straka v. Humber River Regional Hospital, where the Court states “[it] has long been established that confidentiality alone, no matter how earnestly desired and clearly expressed, does not make a communication privileged from disclosure.”929 Wide circulation of internal communications by in-house counsel or communications with inhouse counsel that do not clearly reflect an intention that those communications be kept confidential will not be protected by privilege.930 While solicitor-client privilege started out as a rule of evidence, it is now unquestionably a rule of substance.931 In Descoteaux et al. v. Mierzwinski, (1982), Justice Lamer set out the substantive rule as follows: 1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent. 2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with 925 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 926 Dodek, Adam, Solicitor-Client Privilege, 2014 (LexisNexis Canada Inc.: Markham, Ontario) at p. 189. 927 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.1. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_21. Accessed September 18, 2019. 928 Solosky v R. (1979), [1980] 1 SCR 821, 105 DLR (3d) 745 at [752]: “It is not every item of correspondence passing between a solicitor and client to which privilege attaches, for only those in which the client seeks the advice of counsel in his professional capacity, or in which counsel gives advice, are protected.” 929 Straka v. Humber River Regional Hospital, (2000), 193 DLR (4th) 680 at [59]. 930 Toronto-Dominion Bank v. Leigh Instruments Ltd., 1997 CanLII 12113 (ON SC). 931 Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 SCR 574, 2008 SCC 44 (CanLII) at [10].
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