Canada Case Law

De Longte v. De Longte

Court

Court of Appeal for Ontario

The intervener (solicitor) was added as a party because he has a recognized interest and is the only party able to answer the appellant's allegations of ineffective assistance of counsel; his participation will complete the record and assist the appellate panel, there is no prejudice or delay, and the appellant has waived solicitor-client privilege in respect of the matters in dispute; responsive materials may be filed sealed and the court set a schedule for fresh evidence and cross-examinations.

Source excerpt

• Ineffective assistance of counsel
• Intervention as added party
• Solicitor-client privilege waiver
• Fresh evidence on appeal

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Picciano v. Picciano

Court

Supreme Court of British Columbia

The court found the claimant waived solicitor-client privilege by swearing selective affidavit evidence and exhibiting emails, and ordered limited production of his former counsel’s file.

• Solicitor-client privilege waiver
• Document production
• Affidavit evidence
• Costs
• Solicitor-client-privilege-waiver
• Document-production

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Caledon (Town) v. Darzi Holdings Ltd.

Court

Court of Appeal for Ontario

The appellants are ordered to produce the two recordings because they were located in former counsel's file and the appellants waived privilege over communications relating to the subject-matter by producing most of the file; a breach of professional conduct rules does not automatically make evidence inadmissible and admissibility will be decided by the appeal panel; however, to preserve the appellants' right to challenge admissibility, all references to the recordings and related pre-hearing examinations are confined to materials filed on the sealed fresh evidence motion; former counsel is g…

Source excerpt

• Ineffective assistance of counsel
• Fresh evidence
• Solicitor-client privilege waiver
• Admissibility of recordings
• Intervention

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Sequoia Mergers & Acquisitions Corp. v. Camacc Systems Inc.

Court

Supreme Court of British Columbia

The court ordered full indemnity costs to Sequoia, but held the amount should be assessed by the registrar rather than fixed summarily by the trial judge.

• Contingency fee
• Indemnity costs
• Summary assessment vs registrar assessment
• Solicitor-client privilege waiver
• Proportionality of disclosure
• Indemnity-costs

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R. v. White

Court

Newfoundland and Labrador Court of Appeal

Trial counsel failed to obtain informed instructions from the accused regarding the election as to mode of trial (s.536 Criminal Code); that failure undermined the fairness of the proceedings and amounted to a miscarriage of justice entitling the appellant to a new trial.

Source excerpt

• Ineffective assistance of counsel
• Mode of trial election (s.536 criminal code)
• Miscarriage of justice
• Fresh/additional evidence
• Solicitor-client privilege waiver

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Boissonnault v. Marler

Court

Supreme Court of British Columbia

The court awarded special costs for post-order obstruction of a condominium sale, but declined special costs for the earlier litigation and granted limited uplift costs.

• Co-ownership
• Beneficial ownership
• Sale of property
• Special costs
• Increased (uplift) costs
• Breach of court order (conduct of sale)

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R. v. W.F.

Court

Supreme Court of Nova Scotia

The application to withdraw the prior admission is denied: the court found the accused's evidence not credible or reliable, defence counsel provided competent advice and acted within reasonable strategic bounds, the accused expressly and/or implicitly waived solicitor-client privilege to the limited extent necessary, the admission was not shown to be made by mistake or without authority, and withdrawal would prejudice the Crown; accordingly the voluntariness voir dire remains waived.

Source excerpt

• Voluntariness of statement
• Withdrawal of admissions
• Solicitor-client privilege waiver
• Voir dire procedure
• Credibility and reliability

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Canadian Security Intelligence Services Act (CA) (Re)

Court

Federal Court

Federal Court reasons on CSIS warrant applications, the duty of candour, and how to treat information likely collected unlawfully.

• Duty of candour in ex parte proceedings
• Crown immunity
• Illegally collected information
• Warrant issuance and invalidation
• Remedial orders regarding intelligence material
• Solicitor-client privilege waiver

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RE/MAX LLC v. Save Max Real Estate, Inc.

Court

Federal Court

The Federal Court dismissed an appeal from a production order, holding that defendants waived solicitor-client privilege when their counsel swore a substantive affidavit.

• Trademark infringement
• Passing off
• Solicitor-client privilege waiver
• Production of documents
• Cross-examination
• Bifurcation of issues

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Sales v. Fisher

Court

Supreme Court of British Columbia

An attorney under an enduring power of attorney obtained orders for a solicitor’s file and related communications, while preserving solicitor-client privilege.

• Enduring power of attorney
• Joint retainer
• Production of solicitor's file
• Solicitor-client privilege waiver
• Authority of attorney to access records
• Costs for privilege review

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