March 25, 2025
We have written before about the dangers of accidentally waiving solicitor-client privilege.
THE ISSUE
This privilege is often considered almost absolute, but when does an exception arise?
THE CASE
In Khani v. Araghi, a dispute over whether or not a separation agreement was binding, the Ontario Court of Appeal visits two types of waiver:
- Waiver of privilege
- Waiver of an escrow condition by conduct
On both issues, they found in favour of the party alleging waiver.
The escrow arose when Dr. Araghi’s family law lawyer sent Dr. Khani’s lawyer a draft agreement to be signed and returned, but on condition that it not be binding on Dr. Araghi until her commercial lawyer approved the agreement.
There was evidence that the commercial lawyer had been consulted, but Dr. Araghi relied on solicitor-client privilege in her claim that the agreement was not final. Both the trial judge and the court of appeal ruled that the privilege was waived “when she put the issue of communication with her commercial counsel as a defence to the summary judgment motion.”
No evidence from the lawyer was brought forward, so the courts made an adverse inference – assuming that the evidence of the commercial lawyer would be harmful to Dr. Araghi’s position.
That alone was probably enough to decide the appeal, but the court goes on to consider waiver by conduct.
In this case, the parties both behaved as if they had a binding agreement for some time, until Dr. Araghi tried to say otherwise. Though waiver by conduct requires a “stringent test” showing that:
- The party waiving had a full knowledge of the deficiency that might be relied on and
- Showing an unequivocal and conscious intention to abandon the right to rely on it. The intention to relinquish the right must be communicated. Communication may be formal or informal the evidence supported that finding.
TAKEAWAYS
- it is easy to accidentally waive solicitor-client privilege.
- waiver may be found based on conduct.
- waiver will occur when you rely upon the advice in your pleadings.
- failure to produce evidence from the lawyer may be fatal to your case if waiver is found.
WHAT WEILERS LLP CAN DO TO HELP YOU
The litigation team at Weilers LLP have had significant specific experience in arguing issues of privilege before the courts. Our in-depth experience in this area may give you an advantage if privilege is going to be an important issue in your case. It also demonstrates the depth and range of expertise available at Weilers LLP. We also encourage our clients to approach resolving disputes using common sense. Give us a call and see if we are the right lawyers for you.