Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 269 Not every record dropped off, funneled through or otherwise given to a government institution’s solicitor has been given in confidence for the purpose of giving or seeking legal advice. Just because a solicitor may have been involved is not enough to find that privilege applies to records.924 For example, copying the solicitor in emails does not automatically make them subject to solicitor-client privilege. 3. Did the parties intend for the communication to be treated confidentially? There must be an expectation on the part of the government institution that the communication will be confidential. “Not every aspect of relations between a lawyer and a client is necessarily confidential”.925 Conduct which is inconsistent with an expectation of confidentiality can constitute a waiver of privilege. Confidentiality is the sine qua non of privilege.926 Without confidentiality there can be no privilege and when confidentiality ends so too should the privilege.927 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.928 Intended confidentiality, though necessary, is not sufficient to attach protection to communications between a lawyer and the government institution – legal advice must be involved.929 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.”930 924 AB IPC Order 2000-019 at [38] to [39]. 925 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., [2004] 1 SCR 456, 2004 SCC 18 (CanLII) at [37]. 926 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 927 Dodek, Adam, Solicitor-Client Privilege, 2014 (LexisNexis Canada Inc.: Markham, Ontario) at p. 189. 928 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. 929 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.” 930 Straka v. Humber River Regional Hospital, (2000), 193 DLR (4th) 680 at [59].
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