“It is based on Ms. Beischer’s challenge to paragraph 64 of the Final Order of Justice Warren that Mr. Cournoyer seeks an order for disclosure of Ms. Schon’s file. Ms. Beischer is adamantly opposed to such an order, based on the sacrosanctity of solicitor/client privilege. It is trite law that solicitor-client privilege is “a principle of fundamental justice and civil right of supreme importance in Canadian law”Lavallee, Rackel & Heintz v. Canada (Attorney General); R. Fink, [2002] 3. S.C.R. 209, 2002 SCC 61, paragraph 36, including in the sphere of Family Law: Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ONSC), paragraph 16. It is also trite law that the privilege is not absolute: Lavallee, supra, paragraph 36, with reference to paragraphs 32 and 34-35 of R. v. McClure, [2001] 1 S.C.R.445, 2001 SCC 14 (CanLII). Mr. Cournoyer agrees that the contents of Ms. Schon’s file are privileged, but he takes the position that Ms. Beischer has waived her privilege in taking the position she has. I agree.
This case is, in my view, very much like that of Einstoss v. Starkman, 2010 CarswellOnt 4685, wherein the wife was seeking: “An order setting aside the equalization payment made pursuant to J. Chapnick [sic] dated May 2, 2000 and a determination of a proper equalization payment to the Respondent/Mother”: pargraph 8. Although not properly plead in these proceedings, this is essentially exactly what Ms. Beischer is seeking.
In Einstoss, the wife’s position was that she did not receive full disclosure at the time of the settlement, and that the husband was hiding something. Ms. Starkman denied that “in advancing this position she is questioning the legal advice provided to her by Torkin Manes at the time.”: paragraph 29.
Ms. Beischer is taking the position in this case that the fault lies with Mr. Cournoyer and/or his counsel in British Columbia, Mr. Cote and Mr. Sekhon. She submits that she and her counsel were materially mislead (she goes so far as to suggest knowingly and purposely so) by Mr. Sekhon, in particular, in relation to his “on the fly” calculation of the value of Mr. Cournoyer’s pension on August 29, 2017, which he confirmed by email to Ms. Schon on August 30, 2019. Ms. Beischer suggests that her position with respect to the faulty nature of her waiver has nothing whatsoever to do with Ms. Schon, but everything to do with this alleged material misrepresentation by Mr. Sekhon. Her position is that access to Ms. Schon’s file is irrelevant, and the privilege she enjoys in respect thereto should not therefore be interfered with.
However, as Justice Kelly stated in Einstoss, at paragraph 32 of the judgment:
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- Where a client puts in issue his or her state of mind or knowledge with respect to matters on which she alleges a breach of duty by his or her solicitors, the client will be deemed to have waived privilege as to all communications and advice received by him or her relating to such matters.”
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