Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 18 Oct 2023. 248 The privilege applies not only to communications involving offers of settlement, but also to communications that are reasonably connected to the parties’ negotiations.865 If settlement privilege is established, it belongs to both parties and cannot be unilaterally waived.866 The existence of the privilege is determined by the following three-part test:867 1. Is there the existence or contemplation of a litigious dispute? The litigious dispute requirement is satisfied where parties are in a dispute or negotiation, even if they have not commenced legal proceedings.868 However, settlement privilege does not apply where parties are simply negotiating the terms of a commercial contract. This because, without having entered into a contract, there are no legal obligations between the parties that could form the basis for a litigious dispute.869 2. Were the communications made with the intention they remain confidential if negotiations failed? The context and the substance of the communications can assist in this determination. 3. Was the purpose of the communications to achieve a settlement? The context and the substance of the communications can assist in this determination. 865 Middelkamp v. Fraser Valley Real Estate Board, 1992 CanLII 4039 (BC CA) at [20]; Union Carbide, supra note 830 at [31]; Sable, supra note 830 at [2] and [17]; Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd., 2013 ABCA 10 at [26] and BC IPC Order F20-21 at [57]. 866 Reum Holdings Ltd. v. 0893178 B.C. Ltd., 2015 BCSC 2022 at [56], citing Sinclair v. Roy, 1985 CanLII 559 (BC SC) at 222. See also BC IPC Order F20-21 at [59]. 867 CB, HK & RD v Canadian Union of Public Employees, Local No. 21, 2017 CanLII 68786 (SK LRB) at [35]. 868 Langley (Township) v. Witschel, 2015 BCSC 123 at [34] to [40], applying Belanger v. Gilbert, 1984 CanLII 355 (BC CA). See also BC IPC F20-21 at [65]. 869 Maillet v. Thomas Corner Mini Mart & Deli Inc., 2017 BCSC 214 at [1] to [17]; Jeffrie v. Hendriksen, 2012 NSSC 335 at [25] to [40]. See also BC IPC Order F20-21 at [65].
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