Case Report – BCCA considers implied waiver of solicitor-client privilege and non-party production

25 Jul

The British Columbia Court of Appeal has recently published a June 11th oral judgement on an implied waiver of privilege claim and a motion for production of non-party documents.

On the implied waiver claim, the Court held that a pleading by a plaintiff that alleged it would not have entered a settlement agreement had it known about certain fraudulent conduct did not give rise to an implied waiver of solicitor-client privilege in communications related to the settlement. It stressed that a mere allegation as to a state of affairs on which a party may have received legal advice does not warrant setting aside solicitor-client privilege.

On the affirming the chambers judge’s refusal to order production from a non-party, the Court stated, “A chambers judge has a discretion to refuse production of documents that are of marginal relevance where other documents relevant to the same issue have already been produced: see Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770.”

Procon Mining & Tunnelling Ltd. v. McNeil, 2009 BCCA 281.

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