Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 255 Settlement Privilege Settlement privilege is privilege that applies to the discussions leading up to a resolution of a dispute in the face of litigation as well as the content of the successful negotiation.864 It promotes the settlement of lawsuits.865 The purpose of settlement privilege is to promote settlement by allowing parties to negotiate without fear that the concessions they offer, and the information they provide, will be used against them in subsequent proceedings.866 The rule is that communications and documents exchanged by parties as they try to settle a dispute cannot be used in subsequent proceedings, whether or not a settlement is reached. The privilege applies not only to communications involving offers of settlement, but also to communications that are reasonably connected to the parties’ negotiations.867 If settlement privilege is established, it belongs to both parties and cannot be unilaterally waived.868 The existence of the privilege is determined by the following three-part test:869 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.870 864 865 Service Alberta, FOIP Guidelines and Practices: 2009 Edition, Chapter 4 at p. 201. 866 Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35 at [3] and [31]; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at [12]. See also BC IPC Order F20-21 at [57]. 867 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]. 868 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]. 869 CB, HK & RD v Canadian Union of Public Employees, Local No. 21, 2017 CanLII 68786 (SK LRB) at [35]. See also SK OIPC Review Report 051-2025 at [110] to [118]. 870 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].
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