Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 283 The dominant purpose for creating or obtaining the record must be to decide whether to initiate, or to prepare for, litigation. It cannot be standard operational procedure to prepare such records for various reasons, only one of which is to prepare for litigation.980 A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or “chamber” of privacy.981 Papers and materials created or obtained especially for the lawyer’s brief for litigation, whether existing or contemplated are privileged.982 A claim of litigation privilege will not be made out simply because litigation support is one of the purposes of a document’s preparation, even if it is a substantial purpose. Litigation must be the dominant purpose in order for litigation privilege to exist.983 Litigation privilege is a class privilege. Documents which fall into that class (i.e., those whose dominant purpose is preparation for litigation) will be protected by immunity from disclosure unless an exception applies. The exceptions include those which apply to solicitor-client privilege (i.e., criminal communications, innocence of an accused person, and public safety).984 Examples of litigation privilege records include: • Correspondence between counsel and the client(s). • Documents relevant to the issues pleaded in the lawsuit that were produced by the parties. • Witness statements. • Letters retaining experts or commenting on their reports. • Research memoranda and legal authorities. • Annotations on records written by the litigator. 980 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_21. Accessed September 20, 2019. 981 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 982 Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353 at p. 33. 983 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). 984 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).
RkJQdWJsaXNoZXIy MTgwMjYzOA==