“In Guelph (City) v. Super Blue Box Recycling Corp., (2004) 2004 CanLII 34954 (ON SC), 2 C.P.C. (6th) 276, at paras. 74-100, Justice Corbett, summarized various principles regarding the law of privilege which include the following:
• Solicitor-client privilege is a “fundamental civil and legal right”;
• The functional purpose of solicitor-client privilege goes to the very heart of the administration of the legal system. All persons, whether natural, corporate, or governmental, must have access to expert legal counsel without fear that this recourse may be used to their detriment;
• Where legal advice of any kind is sought from a professional legal advisor in [his or her] capacity as such, the communications relating to the purpose made in confidence by the client are at [its] instance permanently protected from disclosures by [the client] or by the legal advisor; except that the protection be waived;
• There are limited circumstances where privileged communications may nonetheless be compelled from a party asserting its privilege – waiver, furtherance of unlawful conduct, risk to public safety, wrongful conviction, abrogation by statute;
• Once it is established that a communication is subject to solicitor-client privilege, the onus rests on the party seeking to overcome the privilege to establish that the communication ought to be compelled from the party asserting the privilege;
• Privilege may be waived expressly or implicitly. When privilege is waived, the waiver applies to the entire subject-matter of the communications: a party may not “cherry-pick” privileged communications, disclosing what is helpful for that party and claiming privilege over the rest; and
• Two circumstances may give rise to implicit waiver : (1) waiver by disclosure – once the privileged communication has been disclosed, the privilege that attaches to it is said to be lost; (2) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings.”