Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 281 In order to fall within the scope of legislative privilege, the matter at issue must meet the necessity test. The test requires that to qualify it must be “so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body…that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency”.969 Examples of areas previously considered subject to legislative privilege include: • Immunity of members of the legislative assembly for their speech insofar as it relates to their mandate. • The legislative assembly’s autonomy in controlling its debates or proceedings. • Its power to exclude strangers from proceedings. • Immunity of members from subpoenas during a legislative session. • Its authority to discipline its members as well as non-members who interfere with the discharge of legislative duties.970 The party seeking to rely on legislative privilege bears the burden of proof in establishing its necessity. It must demonstrate that the scope of the protection it claims is necessary in light of the purposes of legislative privilege.971 Legislative privilege does not apply to the management of security guards. The privilege to exclude strangers does not protect the decision to dismiss employees.972 Litigation Privilege Litigation privilege is the non-disclosure protection imposed on documents, which come into existence after litigation commenced or in contemplation, and where they have been made with a view to such litigation.973 969 Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 SCR 687, 2018 SCC 39 (CanLII) at [29] referencing Canada (House of Commons) v. Vaid, 2005 SCC 30 (CanLII), [2005] 1 S.C.R. 667 at [46]. 970 Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 SCR 687, 2018 SCC 39 (CanLII) at [31] referencing Canada (House of Commons) v. Vaid, 2005 SCC 30 (CanLII), [2005] 1 S.C.R. 667 at [29(10)]. 971 Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 SCR 687, 2018 SCC 39 (CanLII) at [32]. 972 Chagnon v. Syndicat de la fonction publique et parapublique du Québec, [2018] 2 SCR 687, 2018 SCC 39 (CanLII) at [51] and [57]. 973 Duhaime’s Law Dictionary, available at http://www.duhaime.org/LegalDictionary/L-Page1.aspx. Accessed September 20, 2019.
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