26/05/2020 – Jurisdiction Ontario
Part 70 published on 01/06/2020
Tribunal confirms that general solicitor-client privilege applies to condominium records
The Tribunal determined that general principles of solicitor-client privilege apply to condominium records (thereby preventing disclosure of such privileged records to owners, quite separate and apart from the exclusions set forth in Section 55 (4) of the Condominium Act, 1998). The Tribunal said:
The question is whether the wording of subsection 55(4)(b) is sufficiently specific to extinguish solicitor-client privilege for the purpose of record requests. I conclude that it is not. As can be seen in the Blank and Nabi cases cited above, the statutes being considered contained very specific wording that excluded common law privilege. These cases gave the framers of the Act precedents for the sort of wording that would be effective to extinguish, or subsume, the common law privilege had they wished to do so. They did not expressly exclude the solicitor-client privilege and I conclude that was by design.
The Tribunal also held that solicitor-client privilege had not been waived in this case. The Tribunal said:
The question of whether the solicitor-client privilege has been waived must be considered on the facts of each case. Reviewing each of what Ms. Landau submits are instances of waiver, I conclude that the privilege has not been waived. Having a lawyer speak at a unit owners meeting is not a waiver of any advice MTCC757 received prior to the meeting. Among other reasons, it is not open to the lawyer to waive the privilege. Only the client may do so and inviting the lawyer to speak does not constitute a waiver of privilege for all communications between lawyer and client on the subject. As MTCC757 submits, the client in this case is the Board of MTCC757. Concerning the alleged comments of the Property Manager, unless he was an authorized officer of the condominium, and MTCC757 submits he was not, he cannot waive the privilege. The statement that the package of proposed Rules has been vetted by lawyers and found to be in compliance with the law is not specific enough to constitute a waiver of the privilege that protects any communications between MTCC757 and its lawyers, up to and including the 2018 Legal Opinion. I conclude that MTCC757 has not waived its privilege. Given that conclusion, I find that the solicitor-client privilege applies in this case to protect MTCC757 from having to disclose the 2018 Legal Opinion which it obtained from its lawyers.