Case information

Civil Procedure — Pleadings — Discovery — Solicitor-client privilege — What is the core inquiry to determine the implied waiver of solicitor-client privilege — In what circumstances will a defendant be held to have implicitly waived solicitor-client privilege by denying a claim made by a plaintiff.

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The applicant terminated an underwriting agreement with the respondents on the basis that the latter failed to file a final prospectus before the set deadline. The respondents commenced an action in damages, alleging that the applicant and its external legal counsel had agreed to extend the prospectus-filing deadline. During questioning, the applicant’s senior management employees refused to answer questions about communications between it and external counsel concerning the alleged deadline extension, claiming solicitor-client privilege. On application, a Master found that through its written pleadings the applicant had waived its privilege by putting in issue the authority of and instructions given to counsel. An Order directed the applicant’s representatives to answer most of the questions. Appeals to the Court of Queen’s Bench of Alberta and the Court of Appeal of Alberta on that issue were dismissed.