Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 231 While solicitor-client privilege started out as a rule of evidence, it is now unquestionably a rule of substance.814 In Descoteaux et al. v. Mierzwinski, (1982), Justice Lamer set out the substantive rule as follows: 1. The confidentiality of communications between solicitor and client may be raised in any circumstances where such communications are likely to be disclosed without the client’s consent. 2. Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person’s right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality. 3. When the law gives someone the authority to do something which, in the circumstances of the case, might interfere with that confidentiality, the decision to do so and the choice of means of exercising that authority should be determined with a view to not interfering with it except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation. 4. Acts providing otherwise in situations under paragraph 2 and enabling legislation referred to in paragraph 3 must be interpreted restrictively. By the nature of the records themselves, implicit confidentiality could be intended.815 Express statements of an intention of confidentiality on records may qualify. For example, email confidentiality clauses if they are specific to the communication (i.e. wording and content). Standard confidentiality clauses in the footers of emails would not apply.816 Communications made in order to facilitate the commission of a crime or fraud will not be confidential, regardless of whether or not the lawyer is acting in good faith.817 An applicant is entitled to general identifying information, such as the description of the document (for example, the “memorandum” heading and internal file identification), the name, title and address of the person to whom the communication was directed, the subject 814 Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 SCR 574, 2008 SCC 44 (CanLII) at [10]. 815 AB IPC Orders F2004-003 at [30] and F2007-008 at [14]. Relied on in SK OIPC Review Report F2014-001 at [264]. 816 SK OIPC Review Report F-2012-003 at [80] to [81]. 817 Descôteaux et al. v. Mierzwinski, [1982] 1 SCR 860, 1982 CanLII 22 (SCC).
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