Lawyer-client privilege is a cornerstone of legal practice, protecting confidential communications between a client and their lawyer. However, an Ontario Court of Appeal decision from earlier this year serves as a reminder that improper legal drafting can cancel this protection.
The dispute involved a commercial landlord suing its tenant for outstanding rent after the tenant allegedly abandoned the premises. The tenant filed a defence alleging that it signed the extension without understanding the legal ramifications and without the benefit of legal advice.
However, the tenant had consulted a lawyer at the time of signing and as such put its legal understanding at issue, so the landlord moved for the production of the tenant’s entire communication history with their lawyer.
The tenant attempted to amend its pleadings to erase the mention of a lack of legal of understanding however the Ontario Court of Appeal ruled that once the understanding of your legal position is part of your defence, amending your pleadings after the fact cannot restore privilege when your core defense remains anchored to that legal understanding. Hiding the actual legal advice you received would allow a party to use their legal understanding as a sword while using privilege as a shield.
Parties must carefully consider when drafting pleadings, whether the claims or defences they advance place their understanding of their legal position in issue because production of that advice may be required. Additionally attempting to address the issue through pleading amendments after the fact will not fix the problem if the underlying theory of the case still depends on the party’s legal understanding.
When selecting legal counsel, businesses should look for lawyers who appreciate the nuances of drafting pleadings and who understand how strategic drafting can strengthen or destroy a case from the beginning.
If you would like to discuss a potential litigation matter with this strategic thinking in mind, please contact the undersigned to discuss.
Ariel Dorfman, Associate Lawyer