How have courts considered the doctrine of waiver in relation to privileged documents?
British Columbia, Canada
The following excerpt is from Kamengo Systems Inc. v. Seabulk Systems Inc., 1998 CanLII 4548 (BC SC):
The short answer to this objection is that the doctrine of waiver raises different policy considerations from those underpinning the rule of solicitor/client privilege. By the time the question of waiver falls to be considered, it has already been determined that the party in question enjoys a solicitor/client privilege. The privilege is an important right which should not be set aside lightly: Descoteaux v. Mierzwinsky (1982), 1982 CanLII 22 (SCC), 141 D.L.R. (3d) 590 (S.C.C.). The doctrine of waiver is concerned with the question of when, and in what circumstances, it will be fair and appropriate to hold that a party has given up a right it formerly possessed. The fact that a privileged document is being disclosed to an outsider to induce the outsider to enter into a commercial relationship, and not in anticipation of litigation or for the purpose of giving legal advice, is not a bar to the continued existence of the privilege. Waiver requires an intention to waive; the motive for publishing the privileged document is not determinative of this.
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