Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 285 privilege (i.e., criminal communications, innocence of an accused person, and public safety).985 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. • Miscellaneous public documents such as newspaper clippings, press releases and investigator’s reports.986 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.987 Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification.988 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.989 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 985 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). 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 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. 988 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [34]. 989 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at para. 1.
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