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Evidence - Privilege - Solicitor-Client (2). Laliberté v. Monteith
In Laliberté v. Monteith (Div Ct, 2021) the Divisional Court considered solicitor-client privilege and the doctrine of implied waiver of that privilege:[20] Solicitor-client privilege is a principle of fundamental justice and a cornerstone of the Canadian justice system. It protects the fundamental and legal right of citizens to communicate in confidence with their lawyers. Solicitor client privilege has been elevated to a fundamental and substantive rule of law. The Supreme Court of Canada has made clear that solicitor client privilege “must be as close to absolute as possible to ensure public confidence and retain relevance. As such it will yield in only certain, clearly defined circumstances and does not involve a balancing on a case-by-case basis.”(R.v.McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at para.35; Descoteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 at 875; Soprema Inc.v.Wolrige Mahon LLP, 2016 BCCA 471 (CanLII (BCCA) at para.50.)
[21] The Motion Judge was alive to the importance of the principle of solicitor and client privilege as is apparent from paragraph 19 of her Endorsement.
[22] The Motion Judge correctly set out the test for implied waiver at paragraphs 20 to 23 of her Endorsement:[20] In determining whether privilege should be deemed to have been waived, the court must balance the interests of full disclosure for the purposes of a fair trial against the preservation of solicitor-client privilege: Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949 (Sup. Ct.), at para. 5. The onus lies on the party seeking to overcome the privilege to establish that the communication ought to be compelled from the party asserting the privilege: Super Blue Box[1], at para. 76.
[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.
[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.
[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15.
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