Case information

Civil procedure — Privilege — Solicitor client privilege — Implied waiver — Correct test for determining whether litigant impliedly waived solicitor client privilege — Can waiver be implied where party’s state of mind is in issue and privileged communications may potentially be relevant or must litigant rely on legal advice or its legal understanding before solicitor client privilege may be deemed to be waived?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Nevsun Resources Ltd. pleads that actions brought against it are time barred by limitations periods. The plaintiffs plead in common that the start of any limitation periods are postponed until each met with Canadian counsel because, prior to that date, they did not have the requisite understanding of their legal rights to commence an action. Nevsun applied for a declaration in part that, as a result of the common plea, each plaintiff waived solicitor client privilege over all communications and documents relating to the actions during those first meetings with Canadian counsel. A case management judge found in part that implied waiver of solicitor client privilege by the plaintiffs should include their first meetings with counsel. The Court of Appeal dismissed an appeal.