At questioning, the defendant's witnesses objected to questions about the communications between
ANALYSIS
I. Privilege extends to more than just advice
The Court of Appeal helpfully summarized the law on solicitor-client privilege, including Solosky v R, [1980] 1 SCR 821: when legal advice of any kind is sought from a professional legal adviser in that capacity, (a) "the communications relevant to that purpose" made in confidence by the client, are permanently protected from disclosure, (b) except if the client waives privilege. The Court emphasized that the phrase "communications relevant to that purpose" means that privilege protects the client's interests and attaches to more than just the advice that a professional legal adviser gives their client.
II. Privilege can be lost by the conduct of the holder—when putting the communication in issue
The Court covered two methods of losing privilege. The first is voluntary disclosure to a third party. The second method is waiver by operation of law, which involves weighing the fairness to both sides in upholding or denying solicitor-client privilege. The Court of Appeal concluded that a court should lift privilege when:
- Denying access to the privileged facts would impair the other side's ability to present its case.
- That harm would exceed the harm to the privilege holder by putting the otherwise protected facts into issue.
III. The language of pleadings affects privilege
The Court canvasses how a privilege holder should draft its pleadings to reduce the risk its pleadings will cause a court to lift privilege. The Court noted that pleadings are important, as they identify the issues a court must resolve. Thus, a privilege holder should be cautious when responding to an allegation in a pleading that the privilege holder's lawyer did something adverse. A defendant may safely plead that:
a. The privilege holder's lawyer did not do what the adversary alleges.
b. The lawyer had no apparent or ostensible authority (as opposed to actual authority) to do the alleged act.
When a defendant wishes to respond to an allegation in a Statement of Claim that the privilege holder's lawyer had actual authority to do something, as in this case, the defendant may safely plead that:
- The facts do not support the plaintiff's claim that the privilege holder's lawyer had actual or apparent authority.
- The plaintiff has pled facts subject to lawyer-client privilege, thereby invoking privilege.
Ultimately, if a defendant denies specific allegations subject to lawyer-client privilege, that brings risk that a court may conclude that the defendant has put these facts in issue, and so can be questioned on these facts. For example, here the defendant pled that it had given
- denied the allegation that
Torys notified the plaintiffs its client had agreed to an extension -
denied that the pleaded facts constituted
Torys' ostensible or actual authority to bind Macquarie -
invoked lawyer-client privilege over the allegation that
Torys had actual authority to bind Macquarie to a prospectus-filing extension.
Lesson: Do not bring your lawyer-client communications into issue in your pleadings
The Court dismissed the appeal, finding that the plaintiff could question on communications between
Some methods of drafting a pleading to protect solicitor-client privilege include:
- denying the allegation in a way that does not call into question the communications between the solicitor and client
- denying that the pled facts prove the conduct alleged
- invoking lawyer-client privilege.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Ms
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