Can privilege be waived through inadvertent disclosure?

Ontario, Canada


The following excerpt is from Martin & Profile Legal Services v. Cordiano, 2011 ONSC 5724 (CanLII):

Whether or not privilege has been waived through inadvertent disclosure depends on the circumstances. The court will consider three factors: i. Whether the error was in fact inadvertent and thus excusable; ii. Whether an immediate attempt was made to retrieve the documents; and iii. Whether preservation of the privilege in the circumstances would cause unfairness to the receiving party. See Chan v. Dynasty Executive Suites Ltd., (2006) CanLii 23950

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