Can a party waiver solicitor's client privilege by putting their state of mind in issue?

Alberta, Canada


The following excerpt is from Scott & Associates Engineering Ltd. v. Ghost Pine Windfarm, LP, 2011 ABQB 339 (CanLII):

In order for a party to waive solicitor‑client privilege by putting his or her state of mind in issue, that party must give evidence to the effect that he or she simply adopted the solicitor's advice without any independent reflection. Kent, J. explained the requirement in Freyberg v. Fletcher Challenge Oil and Gas Inc., 2007 ABQB 80 at para. 3: ...When clients are given advice, it is precisely for the purpose of making decisions so as to instruct counsel. That invokes their state of mind. To create a waiver, it cannot be as simple as obtaining confirmation that a person received legal advice on the issue at hand and acted upon it. If that was the case, then the first two questions in any cross‑examination in any action would be to create that waiver. There must be evidence from the party about whose privilege is in issue that they simply adopted their solicitor's advice without any independent reflection.

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