Does a waiver of privilege need to include the privilege holder’s conduct?
British Columbia, Canada
The following excerpt is from 625536 BC Ltd. v The Owners, Strata Plan LMS 4385, 2017 BCSC 1250 (CanLII):
Other examples the court discussed involved no mention of the privilege-holder’s conduct. For example, the court (at paras. 43-45) discussed Do Process LP v. Infokey Software Inc., 2015 BCCA 52, and noted that the court there held that a pleading of duress, standing alone, would not have been sufficient for an implied waiver of privilege; however, the more specific pleading that the party entered the agreement in question without legal advice was sufficient to do so. There was no discussion in Soprema (or, indeed, Infokey) of any act by the party completing, or being required to complete, the waiver.
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