Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 245 What this means is that the Commissioner will not interfere with the confidentiality of communications between solicitor and client “except to the extent absolutely necessary in order to achieve the ends sought by the enabling legislation [i.e., LA FOIP]”. While the courts have said that solicitor-client privilege must remain as close to absolute as possible, it is not absolute. It can be limited or abrogated by statute. A statute purporting to limit or abrogate the privilege must be interpreted restrictively. The Commissioner has the power, under section 43 of LA FOIP, to order production of records over which solicitor-client privilege or litigation privilege is claimed.855 The Commissioner exercises this authority cautiously and with restraint given the clear direction by the courts that a reviewing body’s decision to examine privileged documents must never be made lightly or as a matter of course.856 Therefore, given the importance of solicitor-client privilege and litigation privilege, and to minimally infringe on these privileges, the Commissioner will only order production of records being withheld under solicitor-client or litigation privilege pursuant to subsection 21(a) of LA FOIP when it is absolutely necessary to decide the issues in dispute. Absolutely necessary is as restrictive a test as may be formulated short of an absolute prohibition in every case.857 As to when it would be appropriate to order production of records withheld under the solicitor-client or litigation privilege provision at subsection 21(a) of LA FOIP, the Commissioner will exercise discretion in the following circumstances: • Where there is some evidence that the party claiming privilege has done so ‘falsely” or inappropriately.858 • When the party claiming privilege fails to respond to a reasonable request by the Commissioner for additional information.859 855 This has been confirmed by the Court of Appeal for Saskatchewan in University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [47]. 856 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [73], [76], and [83]. 857 Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 (CanLII), [2006] 2 SCR 32 at [20]. 858 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [53], [54] and [72]. 859 University of Saskatchewan v Saskatchewan (Information and Privacy Commissioner), 2018 SKCA 34 (CanLII) at [83].
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