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Evidence - Privilege - Waiver of Privilege
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. One York Street Inc. v. 2360083 Ontario Limited
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 role of pleadings regarding 'state of mind' - "which asserted a certain understanding of their legal position, the respondents could not shield legal advice they received at the time of entering into the lease" [para 92] - in deeming a waiver of privilege:[92] I acknowledge that near the end of her reasons, the motion judge stated that the respondents could not attempt to “unwaive” privilege by amending the pleading. In doing so, she was addressing an argument made below and in this court by the appellant. However, the motion judge’s reasons as a whole are clear that the basis on which she found deemed waiver was that the substance of the respondents’ defence and counterclaim relied on their state of mind with respect to their understanding of their legal position under the lease by asserting that they relied on alleged extra-contractual misrepresentations by the appellant guaranteeing a certain level of foot traffic in the shopping centre. Even after the June 2023 amendments, the respondents’ pleading still alleges that the respondents did not understand the terms of the lease. Having taken that position, which asserted a certain understanding of their legal position, the respondents could not shield legal advice they received at the time of entering into the lease.
[93] Because I conclude that the motion judge did not err in finding a deemed waiver of privilege based on the conduct of the respondents in the litigation and the amended statement of defence and counterclaim, it is not necessary to consider the appellant’s argument that if the original pleading gave rise to a deemed waiver of privilege, the waiver could not be undone by amending the pleading.
4. Summary of legal principles
[94] Consideration of whether there has been a deemed waiver in the context of a party placing reliance on their state of mind with respect to their legal position can be difficult. Professor Dodek notes: “‘State of mind’ is the most confusing area of implied waiver jurisprudence”: at §7.131.
[95] I provide the following summary to assist motion and trial judges considering such claims at first instance.(1) The fact that a party has received legal advice on an issue relevant to the claim or defence does not give rise to a deemed waiver of privilege. Nor does the fact that a party received legal advice at the time they entered into a contract.
(2) An allegation of misrepresentation or a party putting their state of mind in issue in a general sense does not give rise to a deemed waiver of privilege.
(3) For a deemed waiver to arise, a party must place reliance in its claim or defence on its understanding (or lack of understanding) of its legal position about an issue in the litigation. This type of reliance places in issue a party’s state of mind about its legal position.
(4) In the specific circumstances of a party placing reliance on its state of mind about its understanding of its legal position on an issue in the litigation and where the party obtained legal advice on that issue at a time relevant to its asserted state of mind, the party’s choice to rely on its understanding or lack of understanding of its legal position makes it inconsistent and unfair for the party to maintain privilege over legal advice received regarding the issue on which it injected its understanding of its legal position into the litigation.
(5) The burden to establish waiver rests on the party claiming there has been a waiver. . One York Street Inc. v. 2360083 Ontario Limited [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 extensively (and usefully) canvasses the law of waiver of solicitor-client privilege:1. Legal principles applicable to waiver of solicitor-client privilege
[32] Solicitor-client privilege is fundamental to the operation of our legal system. The privilege protects the right of a client to seek and obtain legal advice. In order to obtain legal advice, a client must be able to communicate freely and fully with their counsel for the purpose of obtaining advice, secure in the knowledge that the communications will not be divulged without their consent: Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at pp. 833-35; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at paras. 45-50; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 26.
[33] The privilege is not absolute. But this case does not concern exceptions to privilege; rather, it concerns when privilege will be treated as being waived by the client.
[34] Solicitor-client privilege can be waived. As with any claim of waiver of privilege, the burden to establish waiver rests on the party claiming there has been a waiver of solicitor-client privilege: Smith v. Jones, at para. 46.
[35] There are two types of waiver: express waiver and deemed or implied waiver. I use the term deemed waiver throughout these reasons.
[36] An express waiver arises where the privilege holder knows of the existence of the privilege and voluntarily conveys their intention to waive it: Matthew Gourlay et al., Modern Criminal Evidence, ed by Brian H. Greenspan & Vincenzo Rondinelli (Toronto: Emond, 2022), at p. 497; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 292.
[37] By contrast, deemed waiver does not require that the holder intend to waive privilege. Deemed waiver will be established when a party’s conduct of litigation is inconsistent with an intention to maintain confidentiality: Gourlay, at p. 497; Paciocco, at p. 293; Nova Scotia (Attorney General) v. Cameron, 2019 NSCA 38, 434 D.L.R. (4th) 521, at para. 51, leave to appeal refused, [2019] S.C.C.A. No. 214.
[38] This appeal involves an allegation of deemed waiver of privilege. For this reason, I turn now to more detail on what is required to establish deemed waiver.
[39] Wigmore explains the conceptual basis for deemed waiver as follows. In deciding whether there is a deemed waiver of privilege,regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. A privileged person would seldom be found to waive, if his intention not to abandon [privilege] could alone control the situation. There is always also the objective consideration that when his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. See John T. McNaughton, Wigmore on Evidence, vol. 8 (Boston: Little, Brown and Company, 1961), §2327 at p. 636.
[40] The “voluntary intention” or “implied intention” referred to by Wigmore and in the deemed waiver jurisprudence does not require an intention to waive privilege. Rather, it refers to the voluntary decision by a party to rely on the receipt of legal advice as part of their claim or defence or to rely on their understanding (or lack of understanding) of their legal position as part of their claim or defence: Creative Career, at para. 29; S. &. K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd. (1983), 1983 CanLII 407 (BC SC), 45 B.C.L.R. 218 (S.C.), at para. 10; Nova Scotia v. Cameron, at para. 61; Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), at paras. 14.168-14.170. Where a party has voluntarily relied in their claim or defence on receipt of legal advice or their understanding of their legal position, that reliance gives rise to a deemed waiver of privilege because it would create an unfair litigation advantage to allow the party to inject their understanding of their legal position into the claim or defence while shielding legal advice that bears on those assertions. The party’s reliance on legal advice, or on their understanding (or lack of understanding) of their legal position when they, in fact, received legal advice on the relevant issue, is inconsistent with maintaining privilege over that advice.
[41] In Creative Career, Perell J. framed the analysis as follows, at para. 30:Thus, a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence. [42] The second branch carries the weight of the analysis, as Perell J. went on to emphasize at para. 31 of Creative Career:Waiver does 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 as a substantive element in his or her claim or defence. [43] The requirement of reliance on legal advice or the absence of legal advice is also explained in Paciocco, at p. 293:The issue of implied waiver often arises when one party puts their state of mind into issue and explains that state of mind by mentioning the legal advice they may or may not have received – for example, by claiming to have signed an agreement without legal advice when there is evidence that they in fact obtained advice, or by alleging that they acted in good faith upon the advice of legal counsel. [Emphasis added.] [44] Relevance alone is not sufficient to overcome the protection of solicitor-client privilege. If it were, the privilege would have no substance: see for example R. v. Dosanjh, 2022 ONCA 689, 163 O.R. (3d) 401, at paras. 150-52. In other words, by its nature, the doctrine of solicitor-client privilege protects otherwise relevant information from disclosure because of countervailing values, in particular, the need for parties to litigation to be able to speak freely to counsel to obtain legal advice: Paciocco, at pp. 287, 298; Gourlay, at pp. 483, 485-86.
[45] The assessment of whether a party has relied on legal advice or their understanding (or lack of understanding) of their legal position such that consistency and fairness require it be treated as a deemed waiver of privilege is necessarily a case-specific analysis. This is so because the analysis is based on a party’s conduct of the litigation, the nature of the legal claims and defences and factual basis for them, and whether in the particular circumstances it would be unfair to maintain the privilege because the party’s actions are inconsistent with maintaining the privilege: Gourlay, at p. 497; Paciocco, at pp. 292-93; Roynat Capital Inc. v. Repeatseat Ltd., 2015 ONSC 1108, 125 O.R. (3d) 596 (Div. Ct.), at para. 84.
[46] Much of the jurisprudence in relation to deemed waiver of privilege considers situations where a party relies on the fact that they received legal advice as an aspect of their claim or defence. Usually, where a party is relying on the fact of having received legal advice as part of their claim or defence, they do so expressly.
[47] This appeal, by contrast, involves circumstances where it is argued that the respondents relied in their defence and counterclaim on a lack of understanding of their legal position, but in fact, had received legal advice. As a result, there is no express reliance by the respondents on having received legal advice. Further, after the June 2023 amendments to the statement of defence and counterclaim, there is no express statement in the respondents’ pleadings to not understanding the lease extension and not having received legal advice. Consequently, the issue is whether the respondents’ defence and counterclaim asserts a lack of understanding of their legal position at the time they signed the lease and extension, and if so, whether that position gives rise to a deemed waiver in relation to legal advice received at that time.
[48] In my view, the same principles apply in circumstances where a party: (i) relies on receipt of legal advice about an issue in the litigation as an element of their claim or defence; or (ii) relies on their lack of understanding of their legal position about an issue in the litigation as an element of their claim or defence, but they, in fact, received legal advice on that issue at the relevant time.
[49] Both situations involve a party relying in their claim or defence on their state of mind or knowledge in relation to their understanding of their legal position about an issue in the litigation. It is this reliance by a party on their state of mind in relation to their understanding of their legal position that gives rise to a deemed waiver of privilege as a matter of consistency and fairness. This is because a party who injects their understanding of their legal position into a case by relying on it in their claim or defence cannot then shelter legal advice which might be used to challenge their assertions about their understanding of their legal position.[2]
[50] Three cases help illustrate this point.
[51] The first case is Rogers v. Bank of Montreal (1985), 1985 CanLII 141 (BC CA), 62 B.C.L.R. 387 (C.A.). Rogers was cited with approval by the Supreme Court in R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 69. In Rogers, the bank put a defaulting customer into receivership. The customer sued both the bank and the receiver. The bank and the receiver launched third-party proceedings against each other. The bank claimed it relied on advice from the receiver in putting the customer into receivership. The receiver denied detrimental reliance on its advice and argued that it was entitled to know what other professional advice the bank had received at the relevant time, and in particular, what legal advice the bank had received from its own lawyers when it put the customer into receivership. The British Columbia Court of Appeal rejected the bank’s claim of solicitor-client privilege. In relying on a defence that its decision to put the customer into receivership had been made based on legal advice provided by the receiver, the bank voluntarily injected the issue of its legal knowledge at the relevant time into the case.
[52] Justice Binnie, writing for the court in Campbell, summarized the holding in Rogers as follows:It appears the court in Rogers found that any privilege with respect to correspondence with the bank’s solicitors had been waived as necessarily inconsistent with its pleading of reliance, even though the bank itself had not referred to, much less relied upon, the existence of advice from its own solicitors. [Emphasis added.] [53] Thus, in Rogers, there was a deemed waiver of privilege of the bank’s legal advice from its own lawyers because the bank chose to rely in its defence on an asserted lack of understanding of its legal position induced by its reliance on the receiver’s advice regarding legal matters. Despite the bank not having relied on or referred to its own legal advice, the pleading of reliance on other legal advice in circumstances where the bank also had its own legal advice, gave rise to a deemed waiver of privilege over its own legal advice.
[54] The second case is Roynat. In Roynat, the litigation arose out of a financial transaction in which the plaintiffs loaned money to the defendant corporation on certain conditions. One of the conditions required the defendant corporation to raise additional equity funds before the loan funds were advanced. The plaintiffs also sued the law firm who had acted for the corporate defendant on the transaction, alleging negligent misrepresentation. The plaintiffs claimed that a lawyer at the firm confirmed to them that the equity fund condition had been met, and that the plaintiffs relied on that representation in advancing the loan funds. At his examination for discovery, the representative of the plaintiffs refused to answer questions about the advice the plaintiffs received from their own lawyers about the alleged confirmation of the equity fund condition.
[55] The Divisional Court upheld the finding by the motion judge (reversing the decision of an associate judge) that the plaintiffs’ allegation of reliance on a representation by the defendant corporation’s law firm gave rise to a deemed waiver of privilege regarding legal advice from the plaintiffs’ own lawyers about the confirmation of the equity fund condition. By pleading reliance on the alleged confirmation of the equity fund condition by the defendant’s law firm, the plaintiffs put in issue their state of mind in relation to their legal position about the confirmation. Maintaining privilege over legal advice that the plaintiffs received from their own lawyers about whether the equity fund condition had been satisfied would be inconsistent with the plaintiffs’ assertion that they relied on the defendant’s law firm’s representation because, if the plaintiffs’ own lawyers provided them with legal advice on the same issue, their reliance on the defendant’s law firm’s alleged confirmation would not be reasonable: see, in particular, at paras. 58-59.
[56] A deemed waiver was found in Roynat despite the plaintiffs not pleading reliance on their own legal advice because they relied in their claim on their state of mind with respect to their legal position. Allowing the plaintiffs to shield their own legal advice on the issue of the equity fund confirmation would be unfair to the defendant law firm and inconsistent with the plaintiffs’ claim that it relied on a representation from that firm.[3]
[57] The third case is Soprema Inc. v. Wolrige Mahon LLP, 2016 BCCA 471, 90 B.C.L.R. (5th) 318. In Soprema, the plaintiff sued the defendant, an auditor, for negligent misrepresentation. The plaintiff alleged that the defendant made false representations about the accuracy of certain financial statements that the plaintiff relied on in deciding whether to purchase shares in a company. A required element of the plaintiff’s claim of negligent misrepresentation was that the plaintiff reasonably relied on the defendant’s misrepresentations. The defendant denied that the plaintiff relied on its representations and that any reliance was reasonable. The defendant argued that the plaintiff had waived privilege over the legal advice it received in relation to the share purchase by putting its state of mind in issue.
[58] In the result, the British Columbia Court of Appeal found there was not a waiver of privilege. The factual basis for this conclusion is important. The plaintiff had put in issue its state of mind in a general sense by pleading negligent misrepresentation because reasonable reliance on the representation is an element of that cause of action. However, it was common ground between the parties that the plaintiff had not pleaded reliance on the defendant for legal advice or that the representations by the defendant had affected the plaintiff’s understanding of its legal position: at para. 6. The Court of Appeal held that there was no waiver because the plaintiff’s reliance on state of mind in general (arising from the pleading of negligent misrepresentation) was not sufficient to ground a deemed waiver of privilege in the absence of the plaintiff putting in issue its state of mind in relation to legal advice or its understanding of its legal position.
[59] The reasoning of the court in Soprema is helpful on the distinction between a party putting in issue their state of mind in a general sense and putting in issue their state of mind regarding their understanding of their legal position about an issue in the litigation at the relevant time. The former does not suffice to ground a deemed waiver. Only reliance on state of mind in relation to a party’s understanding of their legal position can ground a deemed waiver of privilege. Harris J.A. stated the principle as follows, at para. 28:I am of the view it is apparent that the cases which actually find waiver typically involve a party voluntarily making its own understanding of the law, or its reliance on legal advice it received, a material issue…. Indeed, on my review of the cases, there is a weighty argument that underlying the reasoning in those cases is the view that a party will impliedly waive privilege only if it has voluntarily put in issue its understanding of its legal position. It is in those circumstances that it would be inconsistent with the conduct of the party to maintain privilege and unfair to do so, because in those circumstances maintaining privilege would indeed confer an “unfair” litigation advantage. [Emphasis added.] [60] In sum, the issue that a court assessing a claim of deemed waiver must consider is not whether a party has expressly or explicitly referred to legal advice or the absence of legal advice in a pleading or some other step in a proceeding. Rather, the question is whether the party relies in its claim or defence on its understanding of its legal position. Although such reliance is likely to be easier to see where a party expressly or explicitly relies on the receipt of legal advice, the reliance need not be express. If a party relies in its claim or defence on its state of mind or understanding (or lack of understanding) with respect to its legal position about an issue in the litigation and it obtained legal advice on that issue at a time relevant to its asserted state of mind, then as a matter of fairness, the party’s choice to rely on its understanding or lack of understanding of its legal position makes it inconsistent and unfair for the party to maintain privilege over legal advice received regarding the issue on which it injected its understanding of its legal position into the litigation.
[61] I note that some of the jurisprudence on deemed waiver refers to a party “putting its state of mind in issue” as shorthand for a party relying in its claim or defence on its state of mind in relation to its legal position. The motion judge used similar shorthand in places in her reasons. There is nothing wrong with such shorthand, but one must not lose sight of the legal principle: a party putting in issue their state of mind in some general sense does not give rise to a deemed waiver. Rather, what is required is that the party put in issue in their claim or defence their state of mind with respect to their legal position about an issue in the litigation.
[62] Some passages of the Divisional Court reasons could be read as suggesting that for a party to put in issue its state of mind in relation to its legal position such that it can give rise to a deemed waiver of privilege, the party must do so explicitly. It is not clear that the Divisional Court was stating an “explicitness” requirement as a matter of law. It may be that the Divisional Court’s references to “explicit” reliance on legal advice or the absence of legal advice were simply addressing the factual matrix in this case – that after the pleading was amended, it no longer contained an explicit reference to the respondents not understanding the lease extension and not having obtained legal advice prior to signing it. In any event, for the reasons explained above, it is not a necessary requirement for deemed waiver of privilege that the party alleged to have waived privilege explicitly refer to legal advice or the lack of legal advice in a pleading or other step in litigation. What is required is that the party rely on their understanding of their legal position as an element of their claim or defence. . Qualizza v. Canada
In Qualizza v. Canada (Fed CA, 2025) the Federal Court of Appeal grants a motion to set aside a partial appellate notice of discontinuance.
The court consider waiver of privilege, here in a solicitor-client context:[15] Secondly, privilege arises between a lawyer and their client and belongs to the client, not the lawyer: Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 at para. 35. The appellants seem to recognize that the client is entitled to waive privilege, while counsel can do so only with the client’s authorization. Any assertion by the appellants that Mr. Lolacher received privileged information in this case would seem to amount to an acknowledgement that he was a client at the time he received it. Any intentional disclosure of privileged information to someone other than a client would constitute a waiver of privilege by the person disclosing it.If Mr. Lolacher was not a client, as the appellants assert, then information disclosed to him could not remain privileged.
[16] Moreover, any allegation that Mr. Lolacher received privileged information belonging to other appellants and handled it improperly is irrelevant to this motion. It also has not properly been put to this Court. If the appellants wish to have measures put in place to shield allegedly privileged information from the public, they should bring a separate motion in that regard and include therein sufficient detail to identify the allegedly privileged information and demonstrate how it has been mishandled. . De Longte v. De Longte
In De Longte v. De Longte (Ont CA, 2025) the Ontario Court of Appeal allowed an intervention (as an 'added party') in a family law appeal, here by the appellant's former counsel where the appellant raised 'ineffective assistance of counsel' grounds.
The court also allowed the intervenor to augment the record (which is rare for intervenors), here by a sealed affidavit - and issued a declaration that solicitor-client privilege had been waived:[1] The proposed intervener seeks to be added as a party to this appeal. Other than filing an affidavit in response to Mr. De Longte’s allegations of ineffective assistance of counsel and a 15-page factum, he does not seek to augment the record on the appeal. He asks to be able to seek costs and shall be liable for costs. Ms. De Longte consents to the motion. Mr. De Longte opposes it.
[2] The proposed intervener is the former trial lawyer for Mr. De Longte in this family law dispute (“the solicitor”). The trial judge granted his removal as counsel of record prior to the end of the trial because of a breakdown in his relationship with Mr. De Longte.
[3] In his submissions respecting the trial costs and as grounds for his appeal of the trial judgment, Mr. De Longte alleges that he received ineffective assistance from the solicitor during his trial. These allegations include that the solicitor was ineffective in his examination and cross-examination of witnesses, failed to proffer relevant exhibits and did not object to all of the respondent’s tendered exhibits.
[4] On September 17, 2024, Mr. De Longte commenced an action against the solicitor and his firm for professional negligence based on essentially the same allegations of ineffective assistance as he relied on during his trial costs submissions and as he puts forward on his appeal.
[5] Mr. De Longte will seek to file fresh evidence on the appeal in relation to the ineffective assistance of counsel ground. He has asserted other grounds of appeal that are intertwined with the ineffective assistance of counsel allegations.
[6] Rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prescribes the criteria for intervention as an added party:13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceedings; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. [7] As interpreted by this court, the nature of the dispute between the parties on appeal is crucial to the determination of whether the intervention should be permitted. Where the intervention is sought in a private dispute, “the standard to be met by the proposed intervener is more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
[8] Further, the nature of the contribution to be made by the proposed intervener is another important consideration. The proposed intervener’s contribution to the litigation must be useful and more than “mere repetition of the position advanced by a party”: Jones, at para. 29.
[9] Applying these principles to the present case, I am satisfied that the solicitor should be added as a party to the appeal. He does not seek to intervene in the matrimonial issues in dispute between the parties. Rather, he wishes to intervene in the issue of ineffective assistance of counsel that Mr. De Longte pursues on appeal. The trial judge declined to determine this issue, leaving it to be adjudicated on appeal.
[10] The proposed intervention is not novel and has been permitted on appeals in the context of ineffective assistance of counsel allegations. The solicitor has a recognized interest in the subject matter of the ineffective assistance of counsel allegations and is the only party who is in a position to respond to them. As such, the solicitor will be able to complete the record before the appeal panel which will assist in the proper adjudication of this issue. See: Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.); SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291.
[11] Amicus queried the necessity of the intervention. First, the solicitor can provide a full response to Mr. De Longte’s allegations in the existing solicitor’s negligence action. Second, as the claim of ineffective assistance of counsel in a civil context is rarely available, the appeal on that ground may be dismissed as frivolous: W.(D.) v. White (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486; 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115.
[12] Strathy C.J.O. addressed the same concerns about necessity in SMTCL Canada Inc. and concluded at para. 10 of his reasons that intervention was warranted in order to have a full record because “the search for the truth should be an over-arching concern” and “the interests of justice favour a complete evidentiary record.” I would apply the same reasoning to this case.
[13] Moreover, this court’s determination of the issue of ineffective assistance of counsel may resolve all or at least part of Mr. De Longte’s claim against the solicitor, one way or the other. If so, this will benefit the administration of justice and the parties to avoid a multiplicity of proceedings and be in keeping with “the just, most expeditious and least expensive determination of every civil proceeding on its merits” in accordance with the general principles enshrined in r. 1.04 of the Rules.
[14] As for prejudice, there is none. As earlier noted, Ms. De Longte has consented to the intervention. Mr. De Longte was not able to raise any possibility of prejudice. The appeal has not yet been scheduled for hearing and will not be scheduled for some time until Mr. De Longte’s pending motion in the Superior Court to set aside the trial judgement under r. 25(19) of the Family Law Rules, O. Reg. 114/99, has been scheduled and disposed of.
[15] The proposed intervener also requests a declaration that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute. I make that declaration. By his trial costs submissions and grounds of appeal, he has clearly waived that privilege.
[16] While I do not agree with Mr. De Longte’s suggestion that the materials submitted by the solicitor go beyond what was necessary to respond to the allegations of ineffective assistance of counsel, I do agree that, as proposed fresh evidence, they should be filed in a sealed envelope and not form part of the record until the appeal panel accepts the fresh evidence.
[17] Accordingly, order to go as follows:1. The solicitor is granted leave to intervene in Mr. De Longte’s fresh evidence motion and the appeal;
2. I declare that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute;
3. Mr. De Longte shall serve and file his fresh evidence motion in relation to the allegations of ineffective assistance of counsel within 30 days of the release of these reasons;
4. The solicitor may serve and file a responding affidavit in response to the fresh evidence motion and appeal within 30 days of delivery of Mr. De Longte’s fresh evidence motion;
5. The solicitor may cross-examine Mr. De Longte on his affidavit respecting the allegations of ineffective assistance of counsel;
6. Mr. De Longte may cross-examine the solicitor on his responding affidavit;
7. The parties shall agree on the order and schedule for cross-examinations to be completed within 30 days of the delivery of the solicitor’s responding affidavit;
8. The solicitor shall be entitled to deliver a factum not to exceed 15 pages in length;
9. The solicitor shall be entitled to seek costs and shall be liable for costs, in the discretion of the panel hearing the appeal; and
10. If any adjustments need to be made to this schedule, the parties may seek a case conference before Lauwers J.A. [18] The parties shall file any materials related to the fresh evidence motion in a sealed envelope or as directed otherwise by Lauwers J.A. . Air Passenger Rights v. Canada (Attorney General)
In Air Passenger Rights v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the waiver of privilege that arises when a party raises otherwise privileged communications in support of their position:[41] I turn next to the issue of waiver. A client may waive privilege either intentionally or by implication, which will occur if it puts an otherwise privileged communication in issue in support of its position in litigation (see, e.g., Simcoff v. Simcoff, 2009 MBCA 80 at paras. 25–30, 179 A.C.W.S. (3d) 218; Verney v. Great-West Life Assurance Co., 1998 CanLII 14668 (ON SC), 38 O.R. (3d) 474, 77 A.C.W.S. (3d) 1154 (O.N.S.C.); R. v. Smithen-Davis, 2021 ONCA 731, 175 W.C.B. (2d) 142; R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 at paras. 46–48, 171 D.L.R. (4th) 193; and Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis Canada, 2022) at § 14.163).
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