Express Waiver of Solicitor-Client Privilege by Strata Corporations

WHAT IS EXPRESS WAIVER OF SOLICITOR-CLIENT PRIVILEGE?

Express waiver of solicitor-client privilege happens when the Strata Corporation, as the privilege holder, knows the privilege exists and voluntarily evinces an intention to give it up. We have written about solicitor-client privilege generally, and why a Strata must be careful not to waive it, in another article; this article works through the specific test for the express branch of waiver.

The test has two elements, and both must be satisfied: the Strata Corporation must know of the existence of the privilege, and it must voluntarily evince an intention to waive it (S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd.*, 1983 CanLII 407 (BC SC), para 6). A disclosure made by someone who did not know the communication was privileged fails the first element. A disclosure that is compelled, involuntary, or merely incidental fails the second.

WHEN DOES A STRATA KNOW THAT THE PRIVILEGE EXISTS?

A Strata Corporation is deemed to know the privilege exists once it has expressly requested legal advice from its lawyer. We have written, in another article, that legal advice is a continuum that begins with the facts a Strata furnishes to seek the advice, and privilege attaches to that continuum from the Strata's first contact with the lawyer's office, before any advice is actually given. A Strata Corporation that has taken that first step cannot credibly claim, later, that it did not know a communication with its own lawyer was privileged.

This does not require Council to understand the doctrine of privilege itself, only to be aware that the communication in question was made to a lawyer, in confidence, to obtain legal advice. Our experience is that Council rarely has any real difficulty meeting this element; the disputes that actually arise over express waiver turn almost entirely on the second element, whether the disclosure was voluntary, not on whether the Strata Corporation knew the privilege existed in the first place.

WHEN DOES DISCLOSURE TO A THIRD PARTY WAIVE PRIVILEGE?

Voluntary disclosure to a third party is the clearest way a Strata Corporation satisfies the second element of the test. A privilege holder who discloses a privileged document to a third party, knowing of the privilege and without asserting or preserving it, expressly waives that privilege (Huang v. Silvercorp Metals Inc., 2017 BCSC 795, paras 211-225). For example, providing a lawyer's letter to an engineering consultant likely waives privilege over that letter when the disclosure was intentional (Camp Development Corp. v. South Coast British Columbia Transportation Authority, 2011 BCSC 88, para 70).

Not every disclosure counts. Disclosure compelled by statute is involuntary and does not waive privilege, and the Strata Corporation retains whatever privilege the statute leaves it (S. & K. Processors, para 11). A Strata Corporation that discloses a privileged document to a regulator under a genuine legal obligation, or to fulfill a genuine moral duty to cooperate with an investigation while explicitly maintaining the privilege, similarly does not waive it (Huang, paras 212, 218). Whether a disclosure was actually voluntary is assessed on the whole record, not on the Strata Corporation's own description of its reasons for making it.

DOES DISCLOSING PART OF A LEGAL OPINION WAIVE PRIVILEGE OVER THE WHOLE OF IT?

Disclosing part of a legal opinion waives privilege over the whole of it: waiver of privilege as to part of a communication is waiver as to the entire communication (S. & K. Processors, para 6). A Strata Corporation cannot disclose the part of an opinion that helps its position while withholding the rest; fairness and consistency treat the two as inseparable.

This means a Strata Corporation should treat quoting, summarizing, or paraphrasing any part of a legal opinion, in a council minute, an Owner newsletter, or a response to a complaint, with the same caution as disclosing the opinion outright. Once part of it is out, a court can treat privilege as given up over all of it, not just the part disclosed.

WHAT HAPPENS IF A MEMBER OF COUNCIL DISCLOSES A LEGAL OPINION TO DEFEND AGAINST AN ALLEGATION OF MISCONDUCT?

A member of Council's own disclosure does not necessarily waive the Strata Corporation's privilege, but it creates real risk regardless of how a court would eventually decide the question. Privilege belongs to the Strata Corporation, not to any individual member of Council, and we have written, in another article, that the same is true of the authority to instruct the Strata's lawyer in the first place.

It is reasonable to assume that a member of Council facing an allegation of misconduct can point to a lawyer's opinion clearing their conduct, but doing so raises the same two questions the test asks of the Strata Corporation itself. Did the member know the opinion was privileged? And did the member voluntarily evince an intention to waive the privilege on the Strata Corporation's own behalf, rather than only their own? A member of Council acting alone, without a resolution authorizing disclosure, has no more authority to waive the Strata Corporation's privilege than to instruct its lawyer alone.

Our opinion is that an unauthorized disclosure by an individual member does not, by itself, bind the Strata Corporation to an express waiver, because the privilege belongs to the entity, not the member who happens to hold a copy of the opinion. However, once the content of the opinion is actually disclosed, in an email to other Owners or a written response to a complaint, the confidentiality the privilege depends on may already be lost as a practical matter, whatever a court later decides about waiver. Our recommendation is that Council treat a decision to disclose a legal opinion for this purpose the same way it treats a decision to instruct the lawyer: by resolution, not by an individual member acting alone.

ONLY THE STRATA CORPORATION CAN DECIDE TO WAIVE ITS OWN PRIVILEGE

Express waiver requires the privilege holder to know the privilege exists and to voluntarily evince an intention to give it up, most commonly by disclosing a privileged communication, or part of one, to a third party. A Strata Corporation that discloses even part of a legal opinion risks losing privilege over the whole of it, and that risk does not disappear because the person making the disclosure believed they were doing the Strata Community a favour.

However, 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.