Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 282 The purpose of litigation privilege is to create a “zone of privacy” in relation to pending or apprehended litigation.974 To achieve its purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.975 Conceptually distinct from solicitor-client privilege, litigation privilege differs in at least three respects: 1. Solicitor-client privilege protects a relationship, litigation privilege protects the efficacy of the adversarial process; 2. Solicitor-client privilege is permanent; litigation privilege is time-limited and expires with the end of the litigation in question; and 3. Unlike solicitor-client privilege, litigation privilege applies to unrepresented parties and non-confidential documents.976 Litigation privilege aims to facilitate a process (namely, the adversary process), while solicitorclient privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).977 The following two-part test can be applied:978 1. Has the record or information been prepared for the dominant purpose of litigation? Litigation privilege attaches to documents created for the dominant purpose of litigation.979 974 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [34]. 975 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [27]. 976 Britto v University of Saskatchewan, 2018 SKQB 92 (CanLII) at [66], R v Husky Energy Inc., 2017 SKQB 383 at [22], Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 SCR 521, Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII). 977 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [28] referencing Sharpe J.A. in “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164 and 165). 978 Legal requirements or ‘the two-part test’ originates from Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.2. Available at https://www.canada.ca/en/treasury-boardsecretariat/services/access-information-privacy/access-information/access-informationmanual.html#cha11_21. Accessed September 20, 2019. 979 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at intro para. 3.
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