“The functional purpose of the solicitor-client privilege goes to the very heart of the administration of the legal system. All persons must have access to expert legal counsel without fear that this recourse may be used to their detriment: Jones v. Smith, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at para. 46.
The onus rests on the party asserting privilege to establish that the communications in question are in fact, privileged: Davies v. American Home Assurance Co., 2002 CanLII 62442 (ON SCDC), 60 OR (3d) 512 (Div. Crt.) at para. 37. Once that is established, the burden then shifts to the party wishing to overcome the privilege and compel disclosure of communication between solicitor and client: Guelph (City) v. Super Blue Box Recycling Corp., 2004 CanLII 34954 (ON SC), 2 CPC (6th) 276 (Ont. S.C), at para 76.
In Laliberté v. Monteith, 2021 ONSC 4133, at para. 22, the Divisional Court approved the lower court’s statement of the circumstances in which privilege can be waived:
[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.
[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.
[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15.”