Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 237 confidential”.808 Conduct which is inconsistent with an expectation of confidentiality can constitute a waiver of privilege. Confidentiality is the sine qua non of privilege.809 Without confidentiality there can be no privilege and when confidentiality ends so too should the privilege.810 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.811 Intended confidentiality, though necessary, is not sufficient to attach protection to communications between a lawyer and the local authority – legal advice must be involved.812 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.”813 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.814 While solicitor-client privilege started out as a rule of evidence, it is now unquestionably a rule of substance.815 In Descoteaux et al. v. Mierzwinski, (1982), Justice Lamer set out the substantive rule as follows: 808 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]. 809 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 810 Dodek, Adam, Solicitor-Client Privilege, 2014 (LexisNexis Canada Inc.: Markham, Ontario) at p. 189. 811 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. 812 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.” 813 Straka v. Humber River Regional Hospital, (2000), 193 DLR (4th) 680 at [698]. 814 Toronto-Dominion Bank v. Leigh Instruments Ltd., 1997 CanLII 12113 (ON SC). 815 Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 SCR 574, 2008 SCC 44 (CanLII) at [10].
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