Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 270 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.931 While solicitor-client privilege started out as a rule of evidence, it is now unquestionably a rule of substance.932 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 his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality. 3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. 4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively.933 By the nature of the records themselves, implicit confidentiality could be intended.934 Express statements of an intention of confidentiality on records may qualify. For example, email confidentiality clauses if they are specific to the communication (i.e., wording and content). Standard confidentiality clauses in the headers or footers of emails would not apply.935 931 Toronto-Dominion Bank v. Leigh Instruments Ltd., 1997 CanLII 12113 (ON SC). 932 Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 SCR 574, 2008 SCC 44 (CanLII) at [10]. 933 Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860 at p. 16. 934 AB IPC Orders F2004-003 at [30] and F2007-008 at [14]. Relied on in SK OIPC Review Report F2014-001 at [264]. 935 SK OIPC Review Report F-2012-003 at [80] to [81]. See also SK OIPC Review Report 051-2024 at [93] to [95] and [97].
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