Legal Advice

Implied waiver does not require a Strata Corporation to intend anything. It can arise from the three-element test, when the Strata Corporation puts its own state of mind in issue, has obtained legal advice, and voluntarily injects that advice into a dispute to justify what it did.

The decision to waive privilege belongs to the Strata Corporation, not to any individual member of Council. Keeping that decision with Council, made by resolution rather than by an individual member acting alone, is what allows a robust and resilient Strata Community to control when, and on what terms, it gives up the protection the law gives it.

The Strata Property Act does not take that protection away: ss.35(2)(h) and 36(1) require a Strata to keep and produce its records, but they do not clearly, explicitly, and unequivocally eliminate the privilege attaching to a legal opinion among them.