Office of the Saskatchewan Information and Privacy Commissioner. Guide to LA FOIP, Chapter 4, Exemptions from the Right of Access. Updated 24 July 2025. 256 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.871 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. Subsection 21(b) Solicitor-client privilege 21 A head may refuse to give access to a record that: … (b) was prepared by or for legal counsel for the local authority in relation to a matter involving the provision of advice or other services by legal counsel; Subsection 21(b) of LA FOIP is a discretionary, class-based exemption. It permits refusal of access in situations where a record was prepared by or for legal counsel for a local authority in relation to the provision of advice or services by legal counsel. This provision is broader in scope than subsection 21(a) of LA FOIP. The following two-part test can be applied: 1. Were the records “prepared by or for” legal counsel for a local authority? The record must be “prepared”, as the term is understood, in relation to the advice or services or compiled or created for the purpose of providing the advice or services. Prepared means to be made ready for use or consideration.872 871 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]. 872 Pearsall, Judy, Concise Oxford Dictionary, 10th Edition at p. 1129 (Oxford University Press).
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