Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 284 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).978 The following two-part test can be applied:979 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.980 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.981 A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or “chamber” of privacy.982 Papers and materials created or obtained especially for the lawyer’s brief for litigation, whether existing or contemplated are privileged.983 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.984 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 978 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). 979 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. 980 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at intro para. 3. 981 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. 982 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 983 Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353 at p. 33. 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).
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