Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 284 • Miscellaneous public documents such as newspaper clippings, press releases and investigator’s reports.985 2. Is the litigation ongoing or anticipated? Litigation must be ongoing, or there must be a reasonable expectation of litigation (e.g., the litigator has been notified that he or she will be served with notification of litigation). The litigation cannot be a mere vague anticipation or possibility.986 Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification.987 The privilege may retain its purpose and its effect where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended. This enlarged definition of litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action or juridical source. Proceedings that raise issues common to the initial action and share its essential purpose would qualify as well.988 The point in time a grievance is filed, “litigation” has commenced for the purposes of litigation privilege. Grievance arbitration proceedings qualify as litigation. They are adversarial in nature. Litigation encompasses the continuum from the filing of the grievance to the arbitration hearing.989 IPC Findings In Review Report 005-2017, 214-2015 – Part II, the Commissioner considered litigation privilege. The Saskatchewan Health Authority (SHA) asserted that litigation privilege applied to some of the records requested. Upon review, the Commissioner found that the records were prepared for the purpose of litigation and that litigation was ongoing between the SHA and the applicant. 985 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. 986 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. 987 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [34]. 988 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at para. 1. 989 BC IPC Orders F11-29 at [13] to [14] and F15-12 at [52] to [53].
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