Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 288 Therefore, given the importance of solicitor-client privilege and litigation privilege, and to minimally infringe on these privileges, the Commissioner will only order production of records being withheld under solicitor-client or litigation privilege pursuant to subsection 22(a) of FOIP when it is absolutely necessary to decide the issues in dispute. Absolutely necessary is as restrictive a test as may be formulated short of an absolute prohibition in every case.993 As to when it would be appropriate to order production of records withheld under the solicitor-client or litigation privilege provision at subsection 22(a) of FOIP, the Commissioner will exercise discretion in the following circumstances: • Where there is some evidence that the party claiming privilege has done so ‘falsely” or inappropriately.994 • When the party claiming privilege fails to respond to a reasonable request by the Commissioner for additional information.995 A naked “trust me” that the records in dispute are subject to solicitor-client privilege or litigation privilege is not sufficient from the government institution when making the case that subsection 22(a) of FOIP applies.996 In a review, the Commissioner requests copies of records in order to conduct the review and determine whether exemptions have been appropriately applied. This includes requesting records which a government institution may have claimed solicitor-client privilege or litigation privilege over pursuant to subsection 22(a) of FOIP. The government institution may choose to make a “prima facie” case of solicitor-client or litigation privilege for those records pursuant to subsection 22(a) of FOIP. If it does so, it must still meet the “burden of proof” in demonstrating that subsection 22(a) of FOIP applies as required by section 60 of FOIP (see the Guide to FOIP, Chapter 2, “Administration of FOIP” for more on the burden of proof). 993 Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 SCR 32 at [20]. 994 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [53], [54] and [72]. 995 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [83]. 996 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [75].
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