Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 243 Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification.852 The privilege may retain its purpose and its effect where the litigation that gave rise to the privilege has ended, but related litigation remains pending or may reasonably be apprehended. This enlarged definition of litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action or juridical source. Proceedings that raise issues common to the initial action and share its essential purpose would qualify as well.853 The point in time a grievance is filed, “litigation” has commenced for the purposes of litigation privilege. Grievance arbitration proceedings qualify as litigation. They are adversarial in nature. Litigation encompasses the continuum from the filing of the grievance to the arbitration hearing.854 IPC Findings In Review Report 005-2017, 214-2015 – Part II, the Commissioner considered litigation privilege. The Saskatchewan Health Authority (SHA) asserted that litigation privilege applied to some of the records requested. Upon review, the Commissioner found that the records were prepared for the purpose of litigation and that litigation was ongoing between the SHA and the applicant. Process During a Review by IPC In the wake of The University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34, the IPC revised its procedures in relation to local authorities asserting litigation privilege over responsive records. For more on the procedures see, Part 9: Solicitor-Client or Litigation Privilege in The Rules of Procedures. In addition, see the Commissioner’s blog, Solicitor-Client Privilege/Litigation Privilege. 852 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at [34]. 853 Blank v. Canada (Minister of Justice), [2006] 2 SCR 319, 2006 SCC 39 (CanLII) at para. 1. 854 BC IPC Orders F11-29 at [13] to [14] and F15-12 at [52] to [53].
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