Carfra Lawton LLP | Victoria BC

Raising one’s state of mind can result in waiver of privilege

In Stelmaschuk v. The College of Dental Surgeons 2017 BCSC 1371 the court confirmed that in circumstances where a party makes his or her state of mind material to their claim or defence in such a way that would make maintaining privilege unfair to the other party, privilege will be considered waived. Such waiver can apply to solicitor-client privilege even when a party does not intend for privilege to be waived.

In this case the plaintiff claimed he was mentally incompetent when he entered into an agreement with the College not to practice dentistry. In the agreement he acknowledged that he had advice of legal counsel and was aware of his rights. The plaintiff applied to the court to have the agreement set aside. The College sought to interview the plaintiff’s lawyers about his mental incompetence. Ultimately, the court held the plaintiff put his state of mind at issue in the litigation such that it would be unfair for him to retain the benefit of solicitor-client privilege, and ordered that the College be entitled to interview the plaintiff’s lawyers about their communications with the plaintiff during the course of their retainer.

Case law summary by Caroline Alexander