Guide to LA FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 229 The privilege applies to records that quote or discuss the legal advice. For example, information in written communications between officials or employees of a local authority in which the officials or employees quote or discuss the legal advice given by the local authority’s solicitor.801 Business or policy advice provided by a lawyer will not attract the privilege. The Supreme Court of Canada in Campbell recognized this: It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected…Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.802 Not all communications between a lawyer and his or her client are privileged. For example, provision of purely business advice by in-house counsel or purely social interactions between counsel and their clients will not constitute privileged communications.803 Documents that are provided to a lawyer or “which simply come into the possession of a lawyer that are not related to the provision of legal advice are not privileged”.804 Documents do not become subject to solicitor-client privilege simply because they were provided to a lawyer.805 Not every record dropped off, funneled through, or otherwise given to a local authority’s solicitor has been given in confidence for the purpose of giving or seeking legal advice. Just because a solicitor may have been involved is not enough to find that privilege applies to 801 AB IPC Order 96-020 at [133] to [134]. Consistent with Mutual Life Assurance Co. of Can. v. Canada (Deputy Attorney General), [1988], 28 C.P.C. (2D) 101 (Ont. H.C.). 802 R. v Campbell, [1999] 1 SCR 565. 803 Canada (Information Commissioner) v. Canada (Public Safety and Emergency Preparedness), 2012 FC 877 (CanLII) at [17]. 804 Redhead Equipment v Canada (Attorney General), 2016 SKCA 115 (CanLII) at [33], citing General Accident Assurance Company v. Chrusz, 1999 CanLII 7320 (ON CA). 805 West v Saskatchewan (Health), 2020 SKQB 244 (CanLII) at [77].

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