“If I am incorrect with respect to my conclusions pertaining to ostensible authority and a deeper analysis of Derrick’s instructions to Mr. Smith was required to deal with Derrick’s argument that Mr. Smith did not have instruction, then Mr. Smith’s evidence in this regard is highly relevant and I find an implied waiver of privilege with respect to discussions surrounding Derrick’s instructions to settle. In raising this issue, Derrick has placed Mr. Smith’s authority and conduct directly in issue, and Mr. Smith’s evidence bears directly on this question.
In making these findings I have considered the following legal principles:
- Solicitor-client privilege is a fundamental right, but not an absolute one: Laurent v. Laurent, 2019 ONSC 3535 (CanLII), paras. 35-36.
- Privilege may be waived expressly or impliedly by the client.
- The law governing waiver of privilege by implication focuses on (1) implied intention and (2) fairness and consistency: Lawless v. Anderson,2009 CanLII 58602 (ONSC), at para. 10.
- Intention is determined objectively, including when a party has taken a position that would make it inconsistent to maintain the privilege: Lawless v. Anderson,at para. 10; Froates v. Spears, [1999] O.J. No. 77, 1999 CarswellOnt 60 (Gen. Div.), at para. 12.
- Implied waiver has been found in circumstances where the relevance in question is high and the principles of fairness and consistency require disclosure to permit a party to defend itself or in the interests of justice, when the client puts the advice and conduct of the lawyer in issue, and when a party pleads reliance on legal advice for justify actions taken: Mathews, Dinsdale & Clark LLP v. 1772887 Ontario Limited et al., 2021 ONSC 2563 (CanLII), paras. 30 and 31, citing Martin v. GiesbreschtGriffin, 2018 ONSC 7794 (CanLII); Dramel Limited v. Multani, 2020 ONSC 4440, at para. 60; Laurent v. Laurent, at para. 37.
- Implied waiver has been found when a client alleges that his or her counsel did not have instructions to proceed with a course of action or accept terms of settlement. Denying that instructions were given to settle a matter puts that question into issue, thereby waiving privilege over communications related to any such instructions. Therefore, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter: Tsakiris v. Tsakiris, 2007 CanLII 44184 (ONSC), at paras. 21-22; Bentley v. Stone, 1998 CanLII 14710 (ONSC), at paras. 4-12; Laurent v. Laurent, at para. 38, citing Benson v. Kitt, 2018 ONSC 7552 at para. 16.”
Lamarche et al. v. Labrash, Labrash v. Lamarche et al., 2023 ONSC 4186 (CanLII) at 70-71