Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 271 Waiver of Privilege Confidentiality is the sine qua non of privilege.938 Without confidentiality there can be no privilege and when confidentiality ends, so too should the privilege.939 Where a client authorizes the solicitor to reveal a solicitor-client communication, either it was never made with the intention of confidentiality, or the client has waived the right to confidentiality. In either case, there is no intention of confidentiality and no privilege attaches. For example, it has been held that documents prepared with the intention that they would be communicated to a third party, or where on their face they are addressed to a third party, are not privileged.940 Waiver of privilege means the voluntary relinquishing of a right, exemption or immunity.941 Solicitor-client privilege belongs to the client and persists unless it is waived by the client. To constitute a valid waiver, two essential prerequisites are generally necessary: i) The client knows of the existence of the privilege; and ii) The client demonstrates a clear intention to forego the privilege.942 Waiver of privilege can be express, inadvertent, by implication or where fairness requires. There must be an intention manifested from either the client’s voluntary disclosure of confidential information or from objective consideration of the client’s conduct.943 Disclosing that legal advice was received and relied on, or revealing the mere gist, summary or conclusion of that advice (i.e., public announcements) is not sufficient to imply a waiver over the whole of the privileged communications absent any unfairness. Furthermore, this approach reflects the fundamental purposes of freedom of information legislation because it recognizes the need for accountability on the part of public bodies without impinging on their right to maintain confidentiality over privileged communications.944 938 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 939 Dodek, Adam, Solicitor-Client Privilege, 2014 (LexisNexis Canada Inc.: Markham, Ontario) at p. 189. 940 Stevens v. Canada (Prime Minister) (T.D.), 1997 CanLII 4805 (FC), [1997] 2 F.C. 759, p. 8. 941 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 1895. 942 Western Canada Investment Company, Limited v. McDairmid, (1922), 15 Sask. L.R. 142 (QL) (Sask CA) at [146]. Drawn from Solicitor-Client Privilege in Canadian Law (Toronto: Butterworths, 1993) at p. 187. Relied on in SK OIPC Review Report F-2005-002 at [40]. 943 SK OIPC Review Report F-2005-002 at [41]. 944 BC IPC Order F15-09 at [20].
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