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Evidence - Privilege - Solicitor-Client - Appellate SOR. One York Street Inc. v. 2360083 Ontario Limited [appellate SOR of waiver of solicitor-client privilege]
In One York Street Inc. v. 2360083 Ontario Limited (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here involving "the issue of whether the respondents’ conduct in litigation gives rise to a deemed waiver of solicitor-client privilege over legal advice received when they entered into a commercial lease".
Here the court considers the appellate SOR categorization of an issue of waiver of privilege [here, solicitor-client privilege], and generally that for issues of privilege:[67] As I explain below, a question of whether a deemed waiver of privilege has occurred is an issue of mixed fact and law. Applying Housen leads to the following conclusion about the standard of review. Whether the motion judge applied the correct legal standard or test for deemed waiver of privilege is reviewable on a correctness standard. If a motion judge applied the correct legal standard, their findings of fact are entitled to deference. The findings of fact and ultimate conclusion of whether a deemed waiver has occurred are reviewable on the palpable and overriding error standard.
[68] In R. v. Delchev, 2015 ONCA 381, 126 O.R. (3d) 267, this court considered the standard of review applicable to an issue of whether settlement privilege applied to certain communications. The court described the standard of review as follows, at para. 23:The question of whether evidence is privileged involves the identification of legal principles, and the application of those principles to the facts as drawn from the evidence. The trial judge’s identification of the applicable legal principles will be assessed on a correctness standard, though deference is owed to her application of those principles to the facts[.] [69] In my view, the same standard of review applies to whether there has been a waiver of solicitor-client privilege.
[70] The appropriateness of the application of the palpable and overriding error standard of review is particularly clear with respect to questions of whether a deemed waiver of solicitor-client privilege has occurred. As I have outlined above, the jurisprudence is clear that the analysis requires a case-specific assessment of all of the circumstances. Gordon D. Cudmore aptly describes why the mixed fact and law palpable and overriding error standard of review is appropriate to issues of deemed waiver in the Civil Evidence Handbook, release no. 1 (Toronto: Thomson Reuters, 2026), at §6:36:The question of whether privilege has been implicitly waived requires identification of matters of substance by reference to the material facts and the law that governs the client’s claim or defence, as well as an examination of considerations of fairness and consistency, and any litigation advantage that may arise from the enforcement of the privilege. That assessment takes place in the context of the legal standards that govern the rule of solicitor-client privilege. Thus, whether there has been an implied waiver of privilege is a question of mixed fact and law, reviewable on a standard of palpable and overriding error[.] [71] Although the decisions of appellate courts across Canada are not uniform, several appellate courts have concluded that the palpable and overriding error standard of review applies in appellate review of the application of the law of privilege to particular documents or communications: Nova Scotia v. Cameron, at paras. 26-27; Thomson v. University of Alberta, 2013 ABCA 391, 561 A.R. 391, at para. 11; The Blood Tribe v. Canada (Attorney General), 2010 ABCA 112, 487 A.R. 71, at para. 12; R. v. Matthews, 2022 ABCA 115, 413 C.C.C. (3d) 178, at para. 33; Girouard v. Canadian Judicial Council, 2019 FCA 252, at para. 15.[5]
[72] In sum, while a judge at first instance must apply the correct legal principles to the assessment of whether there has been a deemed waiver of privilege, their findings of fact that are the basis of a finding that a deemed waiver has or has not occurred are entitled to deference.
[73] I would add that in this case, the motion judge was particularly well-placed to make the case-specific factual findings required for the deemed waiver analysis. The motion judge was also the case management judge. Her ongoing supervision of this case placed her in an advantageous position to engage in the case-specific assessment of whether there was a deemed waiver of privilege by the respondents.
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