Case Report – BCCA considers proportionality and waiver of privilege by implication

In a leave to appeal application decided on December 4th, Smith J. of the British Columbia Court of Appeal rejected an argument that proportionality is not part of the test for implicit waiver of solicitor-client privilege.

The respondent was 15 days late in complying with a court order to serve an affidavit. The applicant brought on contempt proceedings based on the respondent’s pattern of conduct. As part of its defence, the respondent addressed the 15 day delay by claiming his solicitor did not make him aware of the deadline until too late. He served a second affidavit along with an e-mail from his counsel as evidence.

The applicant unsuccessfully applied for production of other related communications between the respondent and his counsel. The applications judge held that the 15 day delay was not central to the contempt proceeding so an order for production would not be “proportional.”

Smith J. held that the applications judge did not err by applying an inappropriate test for waiver. She held that “proportionality” was concept that is consistent with the fairness aspect of the test for waiver by implication – a rule by which privilege will be waived in communications related to those in which there is an intention to waive privilege where fairness and consistency demand a broader waiver. According to Smith J., “Fairness dictates that requests for access to non-material information do not satisfy the waiver test.”

Hub International Limited v. Tolsma, 2008 BCCA 500.

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