HMB Holding Ltd v Replay Resorts Inc 2018 BCCA 263 reviewed the law relating to implied waiver of solicitor client privilege and restricted it’s application.
Communications with respect to legal advice between a lawyer and the client is generally speaking a near absolute protection that cannot be disclosed.
In the ordinary course of litigation, the question of waiver of solicitor client privilege will arise in one of two ways:
1. a litigant will challenge a list of documents that asserts privilege over documents, and bring an application in relation to particular documents listed, but not disclosed;
2. a litigant may refuse to answer a question based on the assertion of privilege, permitting a narrow order to be sought together to the question asked on the scope of the waiver claimed.
The two leading cases on implied waiver of privilege prior to this decision were Doman Forest Products LTD v GMAC Commercial Credit Canada 2004 BCCA 512 and Soprema inc v Woldridge Mahon LLP 2016 BCCA 471.
In Soprema the BCCA explain the starting point for understanding the test for implied waiver at paragraph 50:
“ The starting point of an articulation of the test for implied waiver must recognize with the Supreme Court of Canada has made clear about the importance of solicitor client privilege. In R. v McClure 2001 SCC 14 at paragraph 35, the court said that solicitor client privilege must be as close to absolute is possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis. Furthermore, the court said at paragraph 17 that solicitor client privilege is part of the fundamental Canadian legal system-it has evolved into a fundamental than substantial of rule of law. This view was affirmed in Goodis v Ontario 2006 SCC 31 at paragraphs 20 – 21, where the Supreme Court of Canada made clear that communications protected by privilege should be disclosed only where absolutely necessary, applying as restrictive a test is may be formulated short of an absolute prohibition in every case quote”
In an Ontario judgment Creative Career Systems, Inc. v. Ontario 2012 OH NSC 649 at paragraph 31, cited Sopinka : The Law of Evidence in Canada, fifth edition, at4,159:
“waiver is not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice is a substantial development of his or her claim or defence “
In Soprema the BCCA explained that voluntarily injecting into the litigation requires more than a statement of the litigants understanding of the law. It normally would require a pleading of reliance on legal advice (or the absence of legal advice as in Do Process LP v Infokey Software Inc 2015 BCCA 52).
In a proper case, evidence of such reliance. If it goes to a material issue may be sufficient, and even argument that the evidence shows reliance on legal advice can give rise to an implied waiver R. V Campbell (1999) 1 SCR 565
The appeal court in HMB Holdings overturned the Chambers Judge decision on the basis that the correct test for waiver was improperly applied when the judge concluded that by asserting that the conspiracy claim had been filed when it was filed to protect limitation period that the plaintiff was waiving privilege over solicitor client communications on the subject.
The court adopted the language in paragraph 51 of Soprema that the test relied on by the judge does not automatically give effect to the near absolute protection of solicitor client privilege mandated by the Supreme Court “