Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 291 The existence of the privilege is determined by the following three-part test:1003 1. Is there the existence or contemplation of a litigious dispute? The litigious dispute requirement is satisfied where parties are in a dispute or negotiation, even if they have not commenced legal proceedings.1004 However, settlement privilege does not apply where parties are simply negotiating the terms of a commercial contract. This because, without having entered into a contract, there are no legal obligations between the parties that could form the basis for a litigious dispute.1005 2. Were the communications made with the intention they remain confidential if negotiations failed? The context and the substance of the communications can assist in this determination. 3. Was the purpose of the communications to achieve a settlement? The context and the substance of the communications can assist in this determination. Subsection 22(b) Solicitor-client privilege 22 A head may refuse to give access to a record that: … (b) was prepared by or for an agent of the Attorney General for Saskatchewan or legal counsel for a government institution in relation to a matter involving the provision of advice or other services by the agent or legal counsel; Subsection 22(b) is a discretionary, class-based exemption. It permits refusal of access in situations where a record was prepared by or for legal counsel (or an agent of the Attorney General) for a government institution in relation to the provision of advice or services by legal 1003 CB, HK & RD v Canadian Union of Public Employees, Local No. 21, 2017 CanLII 68786 (SK LRB) at [35]. See also SK OIPC Review Report 051-2024 at [111] to[117]. 1004 Langley (Township) v. Witschel, 2015 BCSC 123 at [34] to [40], applying Belanger v. Gilbert, 1984 CanLII 355 (BC CA). See also BC IPC F20-21 at [65]. 1005 Maillet v. Thomas Corner Mini Mart & Deli Inc., 2017 BCSC 214 at [1] to [17]; Jeffrie v. Hendriksen, 2012 NSSC 335 at [25] to [40]. See also BC IPC Order F20-21 at [65].
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