February 7, 2014

The recent Ontario Superior Court decision of Lamoureux v Lamoureux illustrates the care with which clients and counsel must take when submitting evidence to court. Without proper forethought, a party may unintentionally waive solicitor-client privilege.

André Lamoureux brought an action against Charles Lamoureux in 2007 (unfortunately, the recent decision does not explain what the originating action was about, nor whether, as their names suggest, André and Charles were related). At a case conference held in 2010, a timetable was imposed on the parties which included the requirement that the action be set down for trial by October 2011.

October 2011 came and went without a trial date being set. On December 2012 an order was made dismissing the action for delay.

André subsequently changed counsel. In mid-2013, André’s new lawyer brought a motion to set aside the Registrar’s order dismissing the action for delay. André swore an affidavit in support of his motion alleging that he instructed his former lawyers to move the action forward, that his former lawyers never made him aware of the timetable, and that he always relied on his lawyers to take the necessary steps to advance the action. In essence, André blamed the delay in setting the matter down for trial on the actions (or inaction) of his former lawyers.

In response, Charles brought the present motion for a declaration that André had waived his solicitor-client privilege with his previous lawyers. In addition, Charles sought an order that André’s former lawyers re-attend for examination and answer questions with regards to the allegations raised in André’s affidavit.

André took the position that his affidavit did not have the effect of waiving solicitor-client privilege. The Court did not agree.

In order to convince a court to exercise its discretion to set aside a dismissal order, a party must first offer an explanation for the delay. In this case, André’s explanation was that the delay was caused by the inattentiveness of his former lawyers. As a result, Justice Smith held that the evidence of André’s former lawyers was highly relevant in the present motion.

In addition, Justice Smith found that it is possible for a client to waive privilege either expressly or by implication, in whole or in part. André’s affidavit put the advice he received from his former lawyer’s in issue. As a result, the interests of justice and fairness required that André’s former lawyers be available for examination.

The Court held that by “blaming” his former solicitors in his affidavit, André had put their advice and his instructions to them in issue. However, André’s implied waiver of privilege was limited to communications relating to the advancement of the action. As a result, André’s former lawyers were ordered to re-attend for examination and to answer the questions they had previously refused to answer.