Privilege and Solicitor-Client Communications | February 2012

​The following recent Ontario Superior Court decisions have touched on the topic of privileged communications between lawyers and their clients:

•  Pottruff v. Don Berry Holdings Inc., 2012 ONSC 311 (CanLII) – in which the Court ordered that copies of stolen communications between a lawyer and his client were privileged and must be returned to the lawyer and deleted from the computer where the documents were stored.   In considering the issues, the Court stated that “…the administration of justice would be brought into disrepute if those who wrongfully and intentionally obtained documents could then use them to their advantage in civil law suits.”
• Humberplex v. TransCanada Pipelines, 2011 ONSC 4815 (CanLII) – in which the Court found that internal corporate communications that were merely copied to in-house counsel were not the subject of solicitor-client privilege and set out that: 

…an operational communication cannot be cloaked with privilege by copying it to a lawyer. Confidential documents containing facts and information relevant the company’s business, that, in the ordinary course of business would not be considered privileged in the hands of TransCanada, cannot become privileged simply because they were sent to a lawyer involved in the matter. The question TransCanada must ask in respect of each document is whether it is an operational report, or is in “pith and substance” a request for, or the provision of, legal advice.

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