13/12/2021 – Jurisdiction Ontario
Part 77 published on 01/03/2022
Records must be redacted for information protected by solicitor-client privilege and litigation privilege
The owner had made a request to see Board Minutes. At the relevant time, the condominium corporation was considering a Court proceeding against the owner. The Condominium Authority Tribunal (CAT) was therefore required to consider the following question: How much of the information (contained in the minutes) relating to the contemplated Court proceeding should be redacted from the minutes that were to be provided to the owner?
The owner argued that only the actual communications from the corporation’s legal counsel (about the contemplated litigation) should be redacted – not other details such as communications between Board members discussing the contemplated litigation.
The CAT held that all of the details about the contemplated litigation should be redacted (and therefore should not be seen by the owner).
First and foremost, the CAT found that any communications protected by solicitor-client privilege should not be disclosed to the owner. The CAT said:
…any direct communication between the lawyer and the board (representing, in this case the client) would be protected from disclosure under solicitor client privilege.
The CAT went on to state as follows:
Subsection 55(4)(b) does provide a broader exception to the right of examination than solicitor-client privilege. It extends the exception to records “relating” to actual or contemplated litigation. To be exempt from examination under s. 55(4)(b) records need not contain direct communications between counsel and client, they need only contain information that relates to actual or contemplated litigation.