On January 11th, the Ontario Superior Court of Justice ordered solicitor-client communications to be returned to the exclusive possession of a defendant to a constructive dismissal action and denied the plaintiff a declaration that privilege had been waived based on an alleged “reckless” disclosure.
The plaintiff obtained the communications through her husband, who took them from her employer when he was given access to the employer’s computer to conduct some maintenance.
The Court’s privilege waiver denial is not surprising given the privilege waiver doctrine offers relatively strong protection for solicitor-client communications. Justice Arell also suggested that the administration of justice would be brought into disrepute if stolen communications were to be used in support of an action. This is a more novel idea, though it was expressed in obiter.