Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 225 other adjudicative process. Generally speaking, participation in mediation is voluntary, and this reality underlies the public policy rationale for maintaining confidentiality over mediation processes.776 • Statutory privilege: a legal privilege established by an act or by a regulation.777 Solicitor-client privilege The purpose of solicitor-client privilege is to assure clients of confidentiality and enable them to speak honestly and candidly with their legal representatives.778 The privilege has long been recognized as “fundamental to the proper functioning of our legal system”779 and a cornerstone of access to justice. It has evolved from a rule of evidence to a substantive rule that is more nuanced than simply any communications between lawyer and client. In Solosky v. The Queen, (1980), Justice Dickson regarded the rule of solicitor-client privilege as a “fundamental civil and legal right” that guaranteed clients a right to privacy in their communications with their lawyers. Furthermore, that solicitor-client privilege must be claimed document by document, and that each document must meet the three-part test. The following three-part test can be applied:780 1. Is the record a communication between solicitor and client? In Descoteaux et al. v. Mierzwinski, (1982), Justice Lamer outlined a very liberal approach to the scope of the privilege by extending it to include all communications made “within the framework of the solicitor-client relationship.” The protection is very strong, as long as the person claiming the privilege is within the framework. A communication is the process of bringing an idea to another’s perception; the message or ideas so expressed or exchanged; the interchange of messages or ideas by speech, writing, gestures or conduct.781 776 CB, HK & RD v Canadian Union of Public Employees, Local No. 21, 2017 CanLII 68786 (SK LRB) at [43]. See also SK OIPC Review Report 171-2019 at [110]. 777 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 201. 778 Smith v Jones, [1999] 1 SCR 455 at [46]. 779 Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 SCR 574, 2008 SCC 44 (CanLII) at [9]. 780 Established by Justice Dickson in Solosky v The Queen,[1980] 1 SCR 821, 1979 CanLII 9 (SCC) at [28]. This test has consistently been applied and the case has not been overturned or overtaken by subsequent jurisprudence. 781 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 348.
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