“Hey All You Cool Cats and Kittens”, in the recent decision of Reva Landau v Metropolitan Toronto Condominium Corporation No. 757, the Condominium Authority Tribunal of Ontario (“CAT”) confirmed that solicitor-client privilege applies to legal opinions rendered by a Corporation’s lawyer.
Solicitor-client privilege is a common law principle that protects communications between a lawyer and their client from disclosure.
The Applicant requested any legal opinions or letters rendered by the Corporation’s lawyer with respect to the authority to chargeback costs to individual unit owners for violations or alleged violations of the Corporation’s rules.
The Corporation argued that legal opinions are protected from production by the common law principle of solicitor-client privilege and/or exempted from production pursuant to section 55(4)(b) of the Condominium Act, 1998 (the “Act”).
The Applicant argued that since solicitor-client privilege is not explicitly enumerated as an exemption under section 55(4) of the Act, it did not apply. The Applicant also argued that, if solicitor-client privilege applied, it was waived by the alleged partial disclosure of the advice given by the Corporation’s lawyer at a meeting of owners.
CAT found that solicitor-client privilege did apply to the legal opinion and that privilege was not waived. CAT also found that, in these circumstances, section 55(4)(b) of the Act did not apply as the Corporation did not list it as a reason for refusing production in its initial response to the records request; the Corporation could not retroactively claim section a 55(4)(b) exemption.
CAT did not accept that solicitor-client privilege was somehow excluded or replaced by the exemption outlined in section 55(4) of the Act. Section 55(4)(b) of the Act provides that an owner’s entitlement to records does not apply to “records relating to actual or contemplated litigation, as determined by the regulations, or insurance investigations involved the corporation”. CAT agreed with an earlier Divisional Court of Ontario decision, Fisher v. Metropolitan Toronto Condominium Corp. No. 596, 2004, which found that section 55(4)(b) of the Act maintains solicitor-client privilege, not that it replaces or supplants it. Solicitor-client privilege is distinct from section 55(4)(b) of the Act.
The Applicant also argued that solicitor-client privilege was waived: (i) by the Corporation’s lawyer at a meeting of owners; (ii) through a conversation that the Applicant overheard between the Corporation’s property manager and other owners; or (iii) by a statement in the notice package enclosing the contested rules which stated that the rules were vetted by the Corporation’s lawyer. CAT found that solicitor-client privilege was not waived in any of these instances.
In order for section 55(4)(b) to apply, the litigation must be actual or contemplated when the request was made. If not, it would be open-ended and could lead Corporations to thwart all records requests, including after a records request dispute was made to CAT.
The decision is important for condo corporations as it solidifies the application of solicitor-client privilege to communications between a corporation’s board of directors and its lawyers, whether or not the communication is specifically with respect to contemplated or actual litigation. Boards can rest assured that such communications are protected under this common law principle and owners are not entitled to these records.