[22] Recently the Supreme Court of Canada has said that to ensure public confidence, access to justice, and the quality of justice within Canada, solicitor-client privilege must be as close to absolute as possible: Blood Tribe Department of Health v. Canada (Privacy Commissioner), 2008 SCC 44 at U 9.
[23] Solicitor-client privilege is substantive law applicable to all interactions between client and lawyer when the lawyer is providing legal advice or acting as a lawyer. The privilege belongs to the client and not the lawyer and a court will not permit a solicitor to disclose a client’s confidence: Blood Tribe, atfl 9, Andrews v. Law Society (British Columbia), [1989] 1 SCR. 143 at p. 173.
[24] It follows that a solicitor is legally and ethically bound to protect the privileged information that belongs to his or her client, and it is improper for a lawyer not to claim it without showing that it has been properly waived: Bell v. Smith, [1968] S.C.R. 664, Lavalee v. Canada (Attorney General), 2002 SCC 61 at fl 24 and 35. A breach of confidentiality can give rise to liability for damages or an injunction: Ott v. Fleishman (1983) 46 B.C.L.R. 321. Ipso facto, a breach of solicitor-client privilege can give rise to the same liability.
[25] Solicitor-client privilege survives the death of the client and inures to the next of kin, heirs or successors in title: Geffen v. Goodman Estate (1991), 81 D.L.R. (4th) 211 at U 55-57. [26] Of course, in the instant case, the Plaintiffs say that solicitor-client privilege has been effectively waived by the Estate. They cite authorities such as Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949, affd [2000] O.J. No. 1137 (Div. Ct.) and Monco Holdings Ltd. v. B.A.T. Development Ltd. 2001 ABQB 133 for the proposition that where a client impugns the conduct of his solicitor as negligent there is an implied waiver of solicitor-client privilege. Thus, commencement of the action by the executor of the will against the testator’s solicitor is waiver of the privilege and should be sufficient for the solicitor to waive the privilege and does so.
