Can your client placing reliance on their understanding of their legal position about an issue in litigation give rise to a deemed waiver of solicitor – client privilege over any legal advice they received?
Short answer – yes.
In One York Street Inc. v. 2360083 Ontario Limited, 2026 ONCA 176, the issue arose because the defendants in their defence of a claim brought by their landlord relied on their understanding of their legal position about an issue in the litigation. This reliance placed their state of mind about their legal position in issue. In Paragraph 95 of its decision, the Court in summarizing the applicable legal principles stated:
In the specific circumstances of a party placing reliance on its state of mind about its understanding of its legal position on an issue in the litigation and where the party obtained legal advice on that issue at a time relevant to its asserted state of mind, the party’s choice to rely on its understanding or lack of understanding of its legal position makes it inconsistent and unfair for the party to maintain privilege over legal advice received regarding the issue on which it injected its understanding of its legal position into the litigation.
Getting legal advice on its own does not give rise to a deemed waiver of privilege nor does the party putting their state of mind into issue in a general sense. But placing reliance on one’s understanding of their legal position about an issue in the litigation may.
It is to be noted that in this matter the client was not asserting a claim against their lawyer. If they had been, we would have argued (as we always do) that waiver was waived voluntarily or by implication (see Watkins v. Faught, 1999 CanLII 1868 (NSSC) where the Court stated “The issue herein by virtue of the pleadings makes the state of the plaintiff’s knowledge an issue. Knowledge implies a consideration of the advice obtained from her solicitor…”)
Solicitor-client privilege must be properly protected, given its fundamental importance, but, just as the Watkins decision did years ago, the recent One York Street decision makes clear a client, through their pleadings, can unintentionally waive that privilege. Solicitor client privilege is not an absolute.