Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 241 ii) Solicitor-client privilege is permanent; litigation privilege is time-limited, and expires with the end of the litigation in question; and iii) Unlike solicitor-client privilege, litigation privilege applies to unrepresented parties and non-confidential documents.841 Litigation privilege aims to facilitate a process (namely, the adversary process), while solicitorclient privilege aims to protect a relationship (namely, the confidential relationship between a lawyer and a client).842 The following two-part test can be applied:843 1. Has the record or information been prepared for the dominant purpose of litigation? Litigation privilege attaches to documents created for the dominant purpose of litigation.844 The dominant purpose for creating or obtaining the record must be to decide whether to initiate, or to prepare for, litigation. It cannot be standard operational procedure to prepare such records for various reasons, only one of which is to prepare for litigation.845 A self-represented litigant is no less in need of, and therefore entitled to, a “zone” or “chamber” of privacy.846 Papers and materials created or obtained especially for the lawyer’s brief for litigation, whether existing or contemplated are privileged.847 841 Britto v University of Saskatchewan, 2018 SKQB 92 (CanLII) at [66], R v Husky Energy Inc., 2017 SKQB 383 at [22], Lizotte v Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 SCR 521, Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII). 842 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [28] referencing Sharpe J.A. in “Claiming Privilege in the Discovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65). 843 Legal requirements or ‘the two-part test’ originates from Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.2. Available at https://www.canada.ca/en/treasury-boardsecretariat/services/access-information-privacy/access-information/access-informationmanual.html#cha11_21. Accessed September 20, 2019. 844 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at intro para. 3. 845 Treasury Board of Canada Secretariat, Access to Information Manual, Chapter 11.21.2. Available at https://www.canada.ca/en/treasury-board-secretariat/services/access-information-privacy/accessinformation/access-information-manual.html#cha11_21. Accessed September 20, 2019. 846 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [32]. 847 Susan Hosiery Limited v. Minister of National Revenue, [1969] 2 Ex. C.R. 27, [1969] C.T.C. 353 at p. 33.
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