Solicitor-Client Privilege and Strata Corporations

WHAT IS SOLICITOR-CLIENT PRIVILEGE?

"Solicitor-client privilege" is a legal term that means specific communications are exempted from compelled disclosure. It protects a confidential communication between a lawyer and a client made to seek or give legal advice, and once it attaches it is treated as close to absolute (Blank v. Canada (Minister of Justice), 2006 SCC 39).

We have written about what counts as legal advice, and who the client actually is for a Strata, in another article. Solicitor-client privilege is the protection that attaches once that advice exists; it is not a separate test for what the advice itself must be. Because privilege is close to absolute, it is not enough for someone challenging it to show that disclosure would be useful, or even that fairness would seem to favour it. It yields only in narrowly defined circumstances, and courts are reluctant to weigh it against other interests case by case.

HOW DID SOLICITOR-CLIENT PRIVILEGE EVOLVE FROM A RULE OF EVIDENCE INTO A FUNDAMENTAL PRINCIPLE?

Solicitor-client privilege was not always treated as more than a courtroom rule. In 1979, the Supreme Court of Canada held that the privilege had moved onto "a new plane," and was no longer merely a rule of evidence confined to a proceeding (Solosky v. The Queen), 1979 CanLII 9 (SCC)).

Three years later, the Court further developed the concept of solicitor-client privilege. In Descôteaux et al. v. Mierzwinski (1982 CanLII 22 (SCC)), the Court formulated privilege as a substantive right that can be raised whenever disclosure is threatened, not only in court, and confirmed that it attaches from a client's first contact with a lawyer's office, before any retainer is finalized.

The concept further expanded in 2002, when the Court described privilege as a principle of fundamental justice and to the client's right to privacy (Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61). By 2016, the Court had confirmed that privilege had "acquired constitutional dimensions," describing it as a fundamental policy of the law and formally distinguishing it, as a substantive protection operating everywhere, from a privilege of the law of evidence that only operates inside a proceeding (Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53). What began in 1979 as a rule about what a court would admit into evidence has become, in practice, a protection a Strata can rely on in any dealing with its lawyer, whether or not litigation is ever contemplated.

DOES THE STRATA PROPERTY ACT ELIMINATE SOLICITOR-CLIENT PRIVILEGE?

The Strata Property Act does not eliminate solicitor-client privilege. The Act requires a Strata to retain, among its records, "any legal opinions obtained by the strata corporation" (s.35(2)(h)), and requires the Strata to make its s.35 records available to an Owner on request (s.36(1)). It is reasonable to assume that listing legal opinions as a record the Strata must produce means an Owner is entitled to see them, but that assumption is wrong.

The BC Court of Appeal has confirmed that legislation is not read as eliminating solicitor-client privilege unless it does so clearly, explicitly, and unequivocally, and identifying a category of record in a retention list falls well short of that (Mitchinson v. The Owners, Strata Plan VR 1120, 2024 BCCA 89). "Legal opinions," in this context, simply means documents or communications containing legal advice the Strata obtained; identifying that category is not the same as identifying, and giving up, the substantive interest privilege protects. A court will not rewrite s.35 or s.36 to reach a different result merely because the Act's general purpose is transparency to Owners.

It also does not matter how old the legal opinion is. Privilege is permanent once it attaches, and does not expire simply because the dispute the advice concerned has since been resolved.

CAN AN OWNER STILL OBTAIN A COPY OF THE STRATA'S LEGAL OPINION?

An Owner can obtain a copy of the Strata's legal opinion only if the Strata Corporation agrees to provide it, or has otherwise given up the privilege. Because ss.35(2)(h) and 36(1) do not eliminate privilege, an Owner's request for records does not, on its own, defeat a Strata Corporation's claim of privilege over a legal opinion.

An Owner who is joined or sued by the Strata Corporation, or who sues it, in their capacity as an Owner is further restricted. The Strata Property Act gives that Owner no right to information or documents relating to that suit at all, privileged or not (s.169(1)(b)).

This is not a reason for a Strata to refuse every request. Our recommendation is that Council turn its mind, with legal advice, to whether disclosure actually serves the Strata Corporation's own interests before it decides whether to assert privilege or to waive it voluntarily.

WHY DO STRATAS NEED TO BE CAREFUL NOT TO WAIVE PRIVILEGE?

Privilege belongs to the Strata Corporation, not to Council, a member of Council, or the property manager, and it can be given up more easily than a Strata might expect. It is important for Council to understand that privilege can be lost even when no one intended to give it up.

Express waiver happens when the Strata Corporation, knowing the privilege exists, voluntarily discloses the privileged communication, for example by forwarding a lawyer's opinion to a consultant or another third party outside any recognized exception (S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 CanLII 407 (BC SC); Camp Development Corp. v. South Coast British Columbia Transportation Authority, 2011 BCSC 88). We discuss the test for express waiver, and how little disclosure it actually takes to trigger it, in another article.

Implied waiver is a separate risk, and it does not require the Strata Corporation to have intended to waive anything at all. It can arise when the Strata Corporation puts its own state of mind in issue and relies on the legal advice it received to support a position it is taking, even when no one ever uses the word "privilege." We discuss the test for implied waiver, and what does and does not amount to reliance, in another article.

Both routes share the same underlying risk: disclosing even part of a privileged communication, such as quoting a legal opinion's conclusion in a council minute or an Owner newsletter, can waive privilege over the rest of it. Our recommendation is that a Strata treat any potential disclosure of legal advice, however limited, with the same caution it would apply to a decision to waive privilege outright.

SOLICITOR-CLIENT PRIVILEGE IS A STRONG PROTECTION THAT ONLY THE STRATA CORPORATION CAN GIVE UP

Solicitor-client privilege began as a rule about what a court would admit into evidence and has become a substantive, near-absolute protection a Strata can rely on in any dealing with its lawyer. 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.

However, the Strata Corporation itself can give up what the Act cannot take away. Privilege belongs to the Strata Corporation, and it is lost through express disclosure or through relying on legal advice to support a position, whether or not Council meant to waive anything at all. Keeping that in mind is what allows a robust and resilient Strata Community to rely on the privilege the law already gives it.