Solicitor-Client Privilege – Another Piece of the Puzzle

In the case of Gale v. Halton Condominium Corporation No. 61, the condominium corporation wrote to all owners advising that a “small group of owners” had caused the condominium corporation to incur extra legal costs by making numerous requests for records, which requests required input from the corporation’s legal counsel.

The Board said that, as a result, funds were not available for other projects. Given the size of the condominium, the members of the “small group” would apparently be evident to at least some of the other owners. One of the owners in the “small group” asked to see the corporation’s legal bills.

The condominium corporation refused to provide the legal bills, based on solicitor-client privilege and litigation privilege, and also based on the exception in Section 55 (4) of the Condominium Act applying to records relating to contemplated litigation. The condominium corporation also asserted that the owner’s reason for requesting the legal bills was not “solely related to his interest as an owner” as required by subparagraph 13.3(1)(a) of Regulation 48/01.

The owner applied to the Condominium Authority Tribunal (CAT). The CAT ordered the condominium corporation to produce the requested legal bills (with redacting – see below).  Among other things, the CAT held that by writing to all owners, the condominium corporation had waived some of the solicitor-client privilege applying to the legal bills.

The CAT went on to say that HCC 61 could still redact (from the legal bills) “information that refers to the legal advice given”. On this issue, the CAT stated as follows:

HCC61 advises that the invoices contain references to the legal advice that was given. That legal advice remains subject to solicitor-client privilege. It has not been waived by HCC61. Similarly, under subsection 55(6) of the Act, HCC61 did not disclose the legal advice. HCC61 may, therefore, continue to claim an exemption from disclosing the legal advice under subparagraph 55(4)(a), to the extent that this subparagraph applies. Therefore, HCC61 is entitled to redact from the legal invoices references to the substance of the legal advice given. HCC61 should be careful not to over-redact. Information that does not relate to the advice given but which prevents Mr. Gale from determining which records request the invoice relates to would be inconsistent with the intent of the records provisions.

The condominium corporation appealed to the Divisional Court. [CAT decisions can be appealed to the Divisional Court on alleged errors of law.]  The Divisional Court held that there was no basis (no error of law) on which to overturn the CAT’s decision and dismissed the appeal. As a result, the owner is entitled to receive the redacted legal bills.

I’m not all that surprised by this decision. I’ve always felt that condominium owners are entitled to see a condominium corporation’s legal bills, as long as there is appropriate deletion of detail that is privileged or confidential, including detail of the advice given and also any references to owners other than the requesting owner.

In my view, the “takeaway” from this case is that the extent of the privilege – the information that can be withheld based on solicitor-client privilege – will depend upon all of the surrounding circumstances of each case, including all of the communications from the condominium corporation. As described in this case, sometimes the Corporation’s communications may serve to “waive” some aspects of solicitor-client privilege. This essentially places a limit on the information that the condominium corporation will then be permitted to redact from records requested by one or more of the owners. So, the bottom line is that this possible “waiver of privilege” is something for every condominium corporation to bear in mind when communicating with owners.

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