Privilege was not ‘expressly’ waived

When can solicitor-client privilege be waived by implication? That was the question at the heart of a motion Superior Court Justice Douglas Gray said raises, “significant issues of policy.”

The question arose in Leggat v. Jennings. After entering into a settlement agreement in a car dealership dispute, Brian Leggat and Kelly Jennings came to court over whether the agreement should be upheld. The Jennings parties told the court the agreement should fail, partly on the basis they signed it after relying on “misrepresentations” made by the Leggat parties.

In response, the Leggat parties argued it’s only fair the Jennings parties reveal the advice they received from their counsel prior to signing the agreement. Their lawyer, Rocco DiPucchio, argued the legal advice is relevant because, “It will be important to know whether or not they acted on the basis of legal advice, rather than any alleged misrepresentations, in acting as they did,” Gray wrote.

But to Gray, that argument wasn’t enough to conclude solicitor-client privilege can be set aside.

“Ordinarily, it can be waived only by a conscious, deliberate decision by the client. To the extent that the client can be said to have put his or her reliance on legal advice squarely in issue in litigation, it comes closest to the making of a conscious, deliberate decision to waive privilege,” Gray said in a ruling this week.

“Anything beyond that, in my view, runs the risk that solicitor-client privilege may be lost inadvertently. For the reasons articulated by the Supreme Court of Canada in the cases to which I referred earlier, that is not in the public interest.”

Gray also said the Jennings parties haven’t made the legal advice they received an issue in this matter.

“They say they relied on misrepresentations by the Leggat parties,” he said. “If the Jennings parties relied on legal advice, it cannot be said that they have raised reliance on legal advice as an issue in the case.”

According to Gray, the fact that a party has waived privilege on a specific document also does not mean solicitor-client privilege is waived in its entirety.

The judge got it right says Davis LLP lawyer Gavin MacKenzie.

“I thought it was very well-reasoned judgment. It emphasizes the importance of solicitor-client privilege and how it must be preserved even if disclosure of privileged advice would be relevant in the case,” MacKenzie says. “It’s not enough merely to show the privileged communication is relevant to the issue; it has to be shown also that privilege was expressly or impliedly waived.”

Gowling Lafleur Henderson LLP corporate and commercial dispute lawyer Duncan Boswell says privilege is waived by implication when a party is pleading they relied on legal advice before acting in a certain way.

“The other party can’t force you to waive your own privilege,” Boswell says, unless your pleading is based on the legal advice you’ve received.

This is important, adds Boswell, because “you have to let clients have an area where they can bare their soul and ask questions and get advice from a professional. That’s the whole basis of privilege so you don’t let the other side get into that sphere of privacy or cone of silence.”

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