Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 230 records.806 For example, copying the solicitor in emails does not automatically make them subject to solicitor-client privilege. 3. Did the parties intend for the communication to be treated confidentially? There must be an expectation on the part of the local authority that the communication will be confidential. “Not every aspect of relations between a lawyer and a client is necessarily confidential”.807 Conduct which is inconsistent with an expectation of confidentiality can constitute a waiver of privilege. Confidentiality is the sine qua non of privilege.808 Without confidentiality there can be no privilege and when confidentiality ends so too should the privilege.809 As a general rule, the client (usually a local authority) must not have disclosed the legal advice (either verbally or in writing) to parties who are outside of the solicitor-client relationship.810 Intended confidentiality, though necessary, is not sufficient to attach protection to communications between a lawyer and the local authority – legal advice must be involved.811 This distinction was emphasized by the Ontario Court of Appeal in Straka v. Humber River Regional Hospital, where the Court states “[it] has long been established that confidentiality alone, no matter how earnestly desired and clearly expressed, does not make a communication privileged from disclosure.”812 Wide circulation of internal communications by in-house counsel or communications with inhouse counsel that do not clearly reflect an intention that those communications be kept confidential will not be protected by privilege.813 806 AB IPC Order 2000-019 at [38] to [39]. 807 Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) inc., [2004] 1 SCR 456, 2004 SCC 18 (CanLII) sy [37]. 808 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 809 Dodek, Adam, Solicitor-Client Privilege, 2014 (LexisNexis Canada Inc.: Markham, Ontario) at p. 189. 810 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.1. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_21. Accessed September 18, 2019. 811 Solosky v R. (1979), [1980] 1 SCR 821, 105 DLR (3d) 745 at [752]: “It is not every item of correspondence passing between a solicitor and client to which privilege attaches, for only those in which the client seeks the advice of counsel in his professional capacity, or in which counsel gives advice, are protected.” 812 Straka v. Humber River Regional Hospital, (2000), 193 DLR (4th) 680 at [698]. 813 Toronto-Dominion Bank v. Leigh Instruments Ltd., 1997 CanLII 12113 (ON SC).
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