“Under the law of privilege, there are authorities that hold where a party’s knowledge is in issue, that party must reveal what he knows, even if the knowledge is from his solicitor. At the same time, those authorities recognize that disclosing this knowledge from that source is inherently problematic as the solicitor-client communication itself is privileged unless it falls within an exception. One such exception is where the initiating party contesting disclosure has put into issue the question of what legal advice he did or did not receive, thus waiving the solicitor-client privilege that might otherwise applied. See Jonas v. Pacitto, 2020 ONCA 727 (CanLII).
When determining whether privilege has been or should be deemed to be waived, the court must find the balance between the interests of full disclosure to the parties involved in the adversarial process to ensure a fair trial (or motion for summary judgment), and the preservation of solicitor and client privilege. When a party places her or his state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice. This waiver can arise where the document (or evidence) is used as the basis for a claim or defence: James v. Maloney, 1972 CanLII 518 (SCJ).”