Solicitor-client privilege is a principle that helps encourage and foster open and honest communications between legal counsel and their client. Therefore, legal advisors must refrain from disclosing communications between themselves and their clients unless the client provides consent. But can a party choose to waive privilege with respect to only specific information?

This issue was recently before the British Columbia Supreme Court in a family law matter. The Court was asked to determine whether a party had waived solicitor-client privilege concerning all communications relating to certain subjects included in a previously filed affidavit.

Respondent seeks to set aside marriage agreement

In F.C.A.S. v C.E.S, the claimant husband and the respondent wife started living together in 2012 and married in 2015. In 2016, the parties entered into a marriage agreement. Over the years, the parties had two children but later separated in 2020. After the separation, the wife sought to set aside the marriage agreement on the basis of duress.

In December 2022, the wife filed an application with the Court seeking to amend her pleadings. Accompanying this application was an affidavit that enclosed various email correspondence between herself and her former lawyer that concerned family violence, parenting time, and biological parentage of the children.

Claimant seeks declaration that respondent waived privilege of email correspondence

The husband sought a declaration from the Court that the wife had waived privilege concerning the file from her former lawyer, in addition to all communications with the previous firm regarding parenting time arrangements, family violence, the date of separation, and the wife’s drug test reports and results. The husband also sought a Court order requiring the wife’s previous law firm to produce counsel copies of these communications.

The husband argued that the wife waived solicitor-client privilege with respect to all areas of the communications that were appended to her affidavit, as she could not pick and choose what correspondence and information to reveal.

Parties cannot pick and choose when to claim privilege

The Court began its analysis by noting that waiver of privilege can be either express or implied. Further, the Court noted that privilege will be deemed to be waived when a party “where a party takes a position inconsistent with the maintenance of privilege or makes legal assertions that make it unfair for them to rely on privilege.” The Court commented on the longstanding rule that “where privilege is waived, production of all documents relating to the acts contained in the communication will be ordered.”

The Court also spoke to the prohibition against “cherry-picking” and that parties are not able to use privilege as “both a “sword and a shield”.”

Party’s intentions are irrelevant to the determination of waiver

The husband claimed that the wife waived privilege with respect to the documents. Therefore, he stated, fairness dictates that he should be entitled to see all communications concerning the topics disclosed in the wife’s application.

The wife argued that she did not waive the privilege of these communications, nor did she intend to. To support this claim, she referenced a clause in her affidavit which stated that:

“I do not generally waive privilege between my former counsel and me and only provide this correspondence to prove that the errors in the pleadings were inadvertent errors on the part of my counsel and me.”

The Court stated that “rarely would privilege be found to have been waived if the question rested solely on a privileged person’s stated intention.” The Court also cited the case of Brown v. Clark Wilson LLP, which found that one’s intention to abandon privilege is irrelevant when determining whether privilege was waived.

Court orders law firm to disclose copies of communications

The Court noted that when a party has the choice of disclosing or withholding privileged communications, and they choose to disclose certain information, they cannot withhold the rest. Ultimately, once a party reaches a certain point of disclosure, their intention to retain privilege does not matter, as fairness to all parties is required.

The Court found that the wife expressly waived her privilege over all communications with her former lawyer concerning the subjects included in the emails that she disclosed in her application to amend pleadings. The Court also specified that the records ordered to be disclosed would be used exclusively for the present litigation and awarded costs to the husband.

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