Solicitor-client privilege waived over emails included in court application

A woman waived her privilege over her email correspondence with her former counsel about certain subjects when she disclosed part of the correspondence, a B.C. court recently ruled in a family law case arising from a marriage agreement.

The record stated that Ms. S. and Mr. S. started living together in 2012, married in 2015, entered into a marriage agreement in 2016, had two children, and separated in 2020. Later, Ms. S. wanted to set aside the agreement based on duress.

In 2022, Ms. S. filed an application seeking to amend her pleadings to withdraw admissions about the separation date and the children’s parentage, to make allegations against Mr. S.’s parentage, and to allege family violence in 2016 when the marriage agreement was formed.

To support her application, she filed an affidavit enclosing her email correspondence with Inga Phillips, her former lawyer at Hamilton Fabbro, a Vancouver-based boutique family law firm. The emails discussed the biological parentage of the children, family violence, and parenting time.

Mr. S. asked the court to order Hamilton Fabbro to provide his counsel with copies of the file of Phillips and all communications between Ms. S. and the firm relating to the separation date, the children’s parentage, family violence, parenting time, and drug test reports and results for Ms. S.

Mr. S. argued that Ms. S. waived solicitor-client privilege over all areas of the communications that she appended to her affidavit. She could not pick and choose what she wanted to reveal, he said. Ms. S. responded that she did not intend to waive her privilege and did not actually waive it.

Privilege waived

In F.C.A.S. v C.E.S, 2023 BCSC 1098, the B.C. Supreme Court ordered Hamilton Fabbro to disclose to counsel for Mr. S. and Dr. S. – a medical doctor specializing in impairment and substance abuse – copies of all communications about the separation date, the children’s parentage, family violence, parenting time, and the drug test reports and results.

The court limited the use of these records to the present litigation and prohibited their dissemination to uninvolved parties or counsel.

Ms. S. expressly waived privilege over all communications with her former lawyer regarding the subjects raised in the emails when she disclosed part of the correspondence in her application to amend pleadings, the court found.

Fairness dictated that Mr. S. should be able to see all communications on the topics that Ms. S. disclosed, the court said. She could not “cherry-pick” favourable aspects of privileged communications without disclosing all the communications, the court added.

The court cited Brown v. Clark Wilson LLP, 2014 BCCA 185. In that case, the B.C. Court of Appeal ruled that the intention to abandon privilege was essentially irrelevant to a determination of waiver of privilege.

A privileged person had the choice of withholding or disclosing privileged information. However, after that person has disclosed as much as they pleased, they could not withhold the rest, the appellate court said. Once that person has touched a certain point of disclosure, they would lose their privilege regardless of whether they intended that result, as fairness required, the appellate court added.