Can a waiver of solicitor-client privilege occur when the client puts his mind in issue and legal knowledge?

British Columbia, Canada


The following excerpt is from 1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd., 2013 BCSC 2578 (CanLII):

The respondents say that a waiver of solicitor-client privilege can occur when a person puts his state of mind in issue and legal knowledge or where fairness and consistency require it, and cite, for example, Biehl v. Strang, 2011 BCSC 1373. The relevant cases were summarized as follows, and I think correctly a summary not challenged by petitioner’s counsel.

In Biehl v. Strang, the court reviews the principles when waiver of privilege has occurred, including the relevant principles to the case at bar: a) solicitor-client privilege should be interfered with only to the extent necessary to achieve a just result; b) where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that evidence is lost; c) a party waives the protection of solicitor-client privilege when it voluntarily injects into the proceeding the question of its state of mind, and, in doing so, uses as a reason for its conduct the legal advice it has received; d) privilege is waived where part but not all of the communication between the client and the solicitor has been set out in what is before the court.

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