Canada Case Law

Hope v. Comeau

Court

Supreme Court of Nova Scotia

No implied waiver: the Hope Affidavit was responsive to the amendment motion and merely referenced communications with counsel without disclosing privileged content or reliance on legal advice; the state of mind formed by legal advice was not shown to be material to the core issues of the action; compelling production would be unfair and risk prejudicing co-client privilege; accordingly the motion to compel production was dismissed.

Source excerpt

• Implied waiver of solicitor-client privilege
• Amendment of pleadings
• Production order
• Competence and compellability of counsel
• Costs

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Genesis Mortgage Investment Corp. v. Blais

Court

British Columbia Court of Appeal

Leave to appeal was granted and a stay ordered because the issue of whether a lender awarded indemnity costs in foreclosure can be compelled to disclose privileged legal invoices and submit to an assessment before redemption is novel and important, the appeal has arguable merit, Genesis would suffer irreparable harm from an immediate waiver of solicitor‑client privilege, and the balance of convenience favoured a stay given the respondents' protections and concessions.

Source excerpt

• Indemnity costs
• Assessment of costs
• Right of redemption
• Stay of execution
• Waiver of privilege

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Tritt v. Tritt

Court

Supreme Court of British Columbia

The application was dismissed because the solicitor's file was not shown to be relevant to the distinct legal issue of capacity to enter a spousal relationship (which has a lower threshold than testamentary or POA capacity), and the executor's authority under s.142(1) WESA does not permit unrestricted waiver of solicitor-client privilege or production of a non-party solicitor's file for purposes unrelated to administering the estate; Rule 7-1(18) requires relevance which was not established.

Source excerpt

• Standing
• Capacity to enter relationship
• Production of documents from non-party
• Wills exception
• Executor authority to waive privilege
• Costs

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One York Street Inc. v. 2360083 Ontario Limited

Court

Court of Appeal for Ontario

Ontario Court of Appeal held that the respondents’ pleadings and litigation conduct supported deemed waiver of solicitor-client privilege over lease-negotiation advice.

• Deemed waiver of privilege
• Misrepresentation
• Commercial lease dispute
• Standard of review for mixed fact and law
• Solicitor-client-privilege
• Deemed-waiver

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Opsal Estate (Re)

Court

Supreme Court of British Columbia

The court refused to convert the petition to a trial or adjourn for expanded discovery because the respondents failed to show a good reason, unjustified delay and a fishing expedition; the proponent established formal execution and presented overwhelming independent evidence (medical and witnessing attestation) that the deceased had testamentary capacity and knew and approved the 2021 will; suspicious circumstances and undue influence were not proven; counsel's file remained privileged because counsel was retained after execution for litigation, not for estate planning; therefore the 2021 wil…

Source excerpt

• Testamentary capacity
• Knowledge and approval of will
• Undue influence
• Conversion of petition to trial/hybrid trial
• Adjournment
• Production of legal files

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Liu v. Borden Ladner Gervais LLP

Court

British Columbia Court of Appeal

The application for review is dismissed because the appellants failed to demonstrate reversible error in the chambers justice's discretionary denial of leave; the proposed appeal raised no issue of significance to the practice beyond application of established law to the case's facts, carried limited utility to the action, and had no realistic prospect of success; Dhillon does not displace solicitor-client privilege and the common interest exception was not established on the record.

Source excerpt

• Leave to appeal
• Common interest exception to privilege
• Duty of care to non-clients
• Discovery
• Sealing orders
• Interests of justice

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Sorace v. Sorace

Court

Supreme Court of British Columbia

The court found that plaintiff effectively waived privilege over documents in former counsel's file that attest to plaintiff's knowledge in 2020-2021 because plaintiff relied on privileged communications and the former lawyer swore affidavits that went beyond mere factual recounting and 'entered the fray', presenting an incomplete and at times inconsistent account on the central issue; fairness and consistency therefore required production of those documents.

Source excerpt

• Waiver of privilege
• Implied waiver
• Limitation act s.6 and s.12(2)
• Summary trial
• Costs

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Liu v. Borden Ladner Gervais LLP

Court

Supreme Court of British Columbia

Appeal dismissed in a discovery and privilege dispute over whether BLG, under a court-ordered sale, held documents in a trustee-like role.

• Production of documents
• Discovery
• Beneficiaries' access to trustee legal advice
• Withholding tax s.116 income tax act
• Order for sale
• Standard of review

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Barbieri Estate v. White

Court

Supreme Court of British Columbia

Application over disclosure of estate legal invoices was partly dismissed and partly granted. The court required redacted production of five invoices but rejected requests framed against counsel and broader document requests against the former executor.

• Document disclosure
• Solicitor-client privilege and waiver
• Inadvertent disclosure
• Estate accounting
• Removal of executor
• Procedural drafting of notices

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Thomson v. A.R. Thomson Group

Court

Supreme Court of British Columbia

The court dismissed a disclosure application, holding the plaintiff had not impliedly waived solicitor-client privilege over former counsel’s file.

• Waiver of solicitor-client privilege
• Implied waiver
• Document production
• Examination for discovery
• Abuse of process
• Solicitor-client-privilege

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