Brief on relevance and materiality insufficient; no implied waiver of solicitor-client privilege
The Alberta Court of Appeal has reversed an order requiring a plaintiff to answer questions he claimed were protected by solicitor-client privilege.
The underlying actions in Rumancik v. Hardy, 2022 ABCA 345 involved defamation claims by Joel and Candice Rumancik against lawyer Michel Bates and his then-client Jacob Hardy. The alleged defamatory statements were contained in a statement of claim by Bates on behalf of Hardy against the Rumanciks.
At questioning, Bates and Hardy objected to answering a total of 178 questions based on multiple grounds, including privileged information, solicitor-client privilege, litigation privilege, common interest privilege, and settlement privilege.
The Rumanciks sought to compel Bates and Hardy to answer those questions. They submitted a brief focused on relevance and materiality, but without reference to privilege or any other objections.
The case management judge granted the Rumanciks’ application. He ruled that by the nature of the pleadings, the parties had impliedly waived solicitor-client privilege.
On appeal, Bates argued that the case management judge erred in finding any waiver of the solicitor-client privilege in his statement of defence.
The appellate court agreed.
Solicitor-client privilege must be expressly addressed
“Solicitor-client privilege is fundamental to the proper functioning of our legal system,” said the court, adding that any encroachments on such privilege must be kept to a minimum and only when absolutely necessary.
The appellate court found that the case management judge failed to expressly address Bates’ assertions of privilege and other objections and, instead, found an implied waiver of privilege. This error resulted in the reasons falling short of the standard of sufficiency, said the court.
The case management judge failed to distinguish and point out which parts of the pleadings led to his conclusion of implied waiver of privilege or to what extent, said the court.
Further, the case management judge failed to distinguish between the different forms of privilege and other objections raised by Bates, nor how each privilege was waived, said the court.
Lastly, while the judge stated the law on implied waiver, how the test was applied was unclear, said the court.
