Solicitor-Client Privilege and Records: A Reminder

A recent decision from the Condominium Authority Tribunal (CAT) confirmed how solicitor-client privilege applies to communications between a condominium Board and its legal counsel (when an owner makes a request to see those communications).

In Reva Landau v. Metropolitan Toronto Condominium Corporation No. 757, the owner had challenged the condominium corporation’s authority to add costs to the common expenses of individual unit owners for alleged violations of the condominium’s Rules, and had sought to obtain a copy of the legal opinion provided by MTCC 757’s lawyers relating to this matter. MTCC 757 refused to provide the requested legal opinion, citing both solicitor-client privilege and section 55(4)(b) of the Condominium Act, 1998 (which states that owners are not entitled to see records relating to actual or contemplated litigation). The owner then argued that solicitor-client privilege did not apply to record requests under section 55 of the Act or, alternatively, that the privilege had been waived by the Corporation in this case.

The CAT held that solicitor-client privilege is a broad common law principle that continues to apply separately from the exceptions outlined under section 55(4) of the Act. Relying on the Ontario Divisional Court’s decision in Fisher v. MTCC 596, the Tribunal found that section 55(4) of the Act does not exclude the general application of solicitor-client privilege. Put another way, general principles of solicitor-client privilege apply in addition to the specific exclusions listed in Section 55 (4). The Tribunal therefore concluded that the legal opinion from MTCC 757’s lawyers was protected by the common law principle of solicitor-client privilege.

The Tribunal also considered the owner’s argument that MTCC 757 had waived solicitor-client client privilege based on:

  • a statement made by MTCC 757’s lawyer at an owners’ meeting;
  • an alleged conversation between the condominium’s property manager and other owners where the property manager commented that the contested provision (about adding costs to the common expenses) could be added to the Rules because it had been deemed legal by MTCC 757’s lawyers; and
  • a statement by the Board that the notice package (including the contested provision) “has been vetted by the corporation’s lawyers and is in compliance with the applicable law”.

The Tribunal held had the privilege had not been waived. The Tribunal noted that solicitor-client privilege could, in this case, only be waived by MTCC 757’s Board of Directors (not by the condominium’s lawyer or by the property manager), and held that the statement by the Board relating to the notice package was not precise enough to constitute a waiver.

The CAT’s findings in this decision are a reminder that the robust common law principle of solicitor-client privilege applies to communications between a condominium Board and its legal counsel, and that this principle is separate and apart from the specific exclusions contained in section 55(4) of the Condominium Act.