Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 227 • A reasonable expectation by the party about the lawyer's role. • Legal advice given. • Any legal documents created for the party.786 The client can be an individual, corporation, or local authority. Solicitor-client privilege can apply in the context of an in-house local authority lawyer providing legal advice to the local authority.787 However, owing to the nature of the work of in-house counsel (i.e., having both legal and non-legal responsibilities), each situation must be assessed on a case-by-case basis to determine if the privilege arises in the circumstances.788 Communications can be written or verbal.789 The privilege does not necessarily apply to attachments to documents (e.g., attachments to emails) even those attached to genuine legal advice. On the other hand, an attachment that is an integral part of a legal opinion in the covering email or document could be privileged. For example, if the attachment would provide some basis for a reader to determine some or all of the opinion or advice. The party claiming privilege over an attachment must provide some basis for the claim. The point is that it is the content of the communication and who is communicating, not the form of the communication that determines privilege and confidentiality. Furthermore, it makes no practical sense to parse the contents of attachments in order to sever the parts that are privileged from the parts that are not. If some of the attachment is part of the legal advice, then all of it is protected by solicitor-client privilege.790 Written communications between officials or employees of a local authority, quoting the legal advice given orally by the local authority’s solicitor, or employee’s notes documenting the legal advice given orally by the solicitor could qualify. This includes notes “to file” in which legal advice is quoted or discussed.791 786 Jeffers v. Calico Compression Systems, 2002 ABQB 72 (CanLII) at [8]. 787 R. v Campbell, [1999] 1 SCR 565. 788 John Sopinka et al., The Law of Evidence in Canada, 5th Ed (Toronto: LexisNexis Canada Inc., 2018) at § 14.125. 789 Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353 at p. 33. 790 British Columbia (Minister of Finance) v. British Columbia (Information and Privacy Commissioner), 2021 BCSC 266 at [110] to [112]. 791 AB IPC Order 99-013 at [62] to [66].
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