Decisions From The CAT: Records Requests & Solicitor-Client Privilege

September 2020, Landau v.  MTCC No. 757, 2020 ONCAT 19

Introduction

Ontario’s Condominium Authority Tribunal (the “CAT”) recently clarified, in Landau v. Metropolitan Toronto Condominium Corporation No. 757, 2020 ONCAT 19, that solicitor-client privilege applies to condominium corporations. Solicitor-Client Privilege is a common law principle that serves to protect communications between a lawyer and their client from disclosure to others, including where a condominium seeks legal advice. However, although there are few exceptions, certain conduct can waive that protection.

Facts:

In the present case, a dispute arose concerning the applicability of solicitor-client privilege to condominiums. After Ms. Landau (the “Unit Owner”) challenged Metro Toronto Condominium Corp No. 757’s (the “Condominium”) authority to add a new cost provision to its Rules, the Condominium acquired a legal opinion on the issue. The Unit Owner subsequently learned of the existence of the opinion. Later, at an owners’ meeting, the Condominium’s solicitor, who addressed the owners at the meeting, stated that the Condominium was authorized to create the Rule. Citing the general records entitlement provision of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”) found at section 55(3), the Unit Owner demanded access to the supporting legal opinion. In response, the Condominium invoked solicitor-client privilege and refused disclosure. Before the CAT, the Unit Owner advanced two (2) arguments in response, among others:

1. Solicitor-client privilege does not apply to condominiums. Rather, the records protection exemption set out in subsection 55(4)(b) of the Act has replaced such privilege; condominiums can only withhold ‘records relating to actual or contemplated litigation’, within the meaning of the statutory exemption, which does not include all solicitor-client communications; and,
2. If solicitor-client privilege was not supplanted, that the Condominium waived such privilege when its lawyer openly stated that the Condominium was authorized to create the new Rule at the owners’ meeting.

Solicitor-Client Privilege and Waiver:

The CAT rejected the first argument that the Act’s general records entitlement provision replaced the common law principle of solicitor-client privilege. While legislation can extinguish solicitor-client privilege, case law has found that the language of such exclusionary provisions must be ‘clear and unambiguous’. As such, if privilege is to be ousted, legislation must clearly state such. The language in subsection 55(4)(b) of the Act is not sufficiently clear and unambiguous so as to oust the application of privilege. Further, solicitor-client privilege can apply to condominiums in all circumstances; it does not only apply when the solicitor-client communications relate solely to actual or contemplated litigation.

Condominiums (and others) can waive privilege by providing outside parties with access to privileged communications. However, the CAT ruled that only clients can waive solicitor-client privilege, and not their lawyers on their behalf. The solicitor-client privilege was not waived when the Condominium’s lawyer spoke at the owners’ meeting. As the lawyer was not an officer of the Condominium, the lawyer could not waive such privilege on the Condominium’s behalf. The Condominium also did not waive, or authorize the waiver, of solicitor-client privilege. Stating that the Rules were approved by a lawyer does not constitute a waiver of solicitor-client privilege. In addition, “inviting the lawyer to speak does not constitute a waiver of privilege for all communications between lawyer and client on the subject.” 

Bottom Line

Solicitor-client privilege continues to apply to communications, opinions and recommendations received by condominiums from their lawyers. However, condominiums must remember that providing or authorizing the provision of such to external parties can constitute waiver. Condominiums should seek legal advice when presented with such requests from owners.

Written by Jamie Cockburn, edited by Christopher Mendes and Robert Mullin

*This article does not constitute legal advice, always consult legal counsel.