Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 273 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.944 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.945 Communication of privileged information between ministries or departments is not a waiver.946 FOIP does not provide for a burden of proof when waiver is claimed. Where an applicant has asserted that solicitor-client privilege has been waived, the applicant bears the burden of proving the privilege has been waived.947 IPC Findings In Review Report F-2005-002, the Commissioner considered whether solicitor-client privilege had been waived. The Commissioner found that even where a government institution releases some documents, dissemination of some information related to a litigation does not constitute a waiver by the government institution’s privilege. As such, the Commissioner found that the Saskatchewan government had not waived its privilege. Process During a Review by IPC In the wake of The University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34, the IPC revised its procedures in relation to government institutions asserting solicitor-client privilege over responsive records. For more on the procedures see, Part 9: Solicitor-Client or Litigation Privilege in The Rules of Procedures. In addition, see the Commissioner’s blog, Solicitor-Client Privilege/Litigation Privilege. 944 SK OIPC Review Report F-2005-002 at [41]. 945 BC IPC Order F15-09 at [20]. 946 Stevens v. Canada (Prime Minister), [1997] 2 FC 759, 1997 CanLII 4805 (FC). 947 SK OIPC Review Report F-2005-002 at [39].
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