Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 242 A claim of litigation privilege will not be made out simply because litigation support is one of the purposes of a document’s preparation, even if it is a substantial purpose. Litigation must be the dominant purpose in order for litigation privilege to exist.848 Litigation privilege is a class privilege. Documents which fall into that class (i.e., those whose dominant purpose is preparation for litigation) will be protected by immunity from disclosure unless an exception applies. The exceptions include those which apply to solicitor-client privilege (i.e., criminal communications, innocence of an accused person, and public safety).849 Examples of litigation privilege records include: • Correspondence between counsel and the client(s). • Documents relevant to the issues pleaded in the lawsuit that were produced by the parties. • Witness statements. • Letters retaining experts or commenting on their reports. • Research memoranda and legal authorities. • Annotations on records written by the litigator. • Miscellaneous public documents such as newspaper clippings, press releases and investigator’s reports.850 2. Is the litigation ongoing or anticipated? Litigation must be ongoing, or there must be a reasonable expectation of litigation (e.g., the litigator has been notified that he or she will be served with notification of litigation). The litigation cannot be a mere vague anticipation or possibility.851 848 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). 849 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). 850 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. 851 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.
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