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Implied, voluntary waiver of privilege alive and well

Although the Supreme Court of Canada has confirmed that solicitor-client privilege has to remain “as absolute as possible,” the doctrine of “waiver of privilege” is alive and well, Toronto commercial and civil litigator John Philpott writes in Lawyers Weekly.

While voluntary or intentional waiver takes place when a client knows the existence of the privilege and shows an intention to waive it, Philpott, associate with Brauti Thorning Zibarras LLP, explains that with “implied waiver,” a party “cannot assert a position based on legal advice, and then seek to hide the particulars of that advice behind the cloak of solicitor-client privilege. Once that position is asserted, the cloak drops away.”

The 2012 decision in Creative Career Systems v. Ontario sets a high bar on what constitutes implied waiver, writes Philpott, namely that the party must use and rely on legal advice in a material part of their claim or defence.

But, he adds, subsequent jurisprudence “has fostered uncertainty and also created some surprising distinctions,” effectively creating new rules based on where and when evidence is given.

“Everyone will be better served if clear and separate tests for voluntary and implied waiver are reestablished. Until then, counsel should not take their clients ‘near absolute’ rights for granted,” writes Philpott.

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