Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 273 (2) For the purposes of conducting a review, the commissioner may summon and enforce the appearance of persons before the commissioner and compel them: (a) to give oral or written evidence on oath or affirmation; and (b) to produce any document or things; that the commissioner considers necessary for a full review, in the same manner and to the same extent as the court. (3) For the purposes of subsection (2), the commissioner may administer an oath or affirmation. In Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 SCR 860, Lamer J., on behalf of a unanimous Court, formulated four substantive rules to apply when communications between solicitor and client are likely to be disclosed without the client’s consent. The third substantive rule is relevant for the topic of production of solicitor-client or litigation records in an IPC Review. Rule number three reads as follows: … 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. … What this means is that the Commissioner will not interfere with the confidentiality of communications between solicitor and client “except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation [i.e., FOIP]”. While the courts have said that solicitor-client privilege must remain as close to absolute as possible, it is not absolute. It can be limited or abrogated by statute. A statute purporting to limit or abrogate the privilege must be interpreted restrictively. The Commissioner has the power, under section 54 of FOIP, to order production of records over which solicitor-client privilege or litigation privilege is claimed.947 The Commissioner 947 This has been confirmed by the Court of Appeal for Saskatchewan in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [47].
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