Lawyer Swearing Affidavit for Motion does not Waive Solicitor-Client Privilege

Solicitor-client privilege is an important right, as seen in a recent appeal of a Master's decision.

In Elgner v. Freedman Estate, 2014 ONSC 1989 (S.C.J.), the defendant brought a motion for particulars.  A lawyer from the firm representing the defendant swore an affidavit in support of the motion.  Plaintiff's counsel cross-examined on the affidavit and a number of refusals were given.  On a motion for the refusals, the issue was whether the tendering of litigation counsel's affidavit in support of a motion amounts to "a total waiver of privilege over a lawyer's file."  The Master held it did not and Justice Morgan upheld the decision on appeal.

The refusals were extremely broad, including things such as accounts, letter of advice, dockets, and the initial retainer.  The plaintiff argued that since defence counsel swore they had no information (and therefore needed particulars), the only way to test their assertion was to ask to see everything.  Plaintiff's counsel also argued they needed to see everything in order to test the assertion the affidavit was made for "no improper purpose".  Justice Morgan disagreed, holding that the onus is on the party asserting the affirmative, not the party stating a negative.  If a statement that an affidavit is sworn "for no improper purpose" requires cross-examination, it would "burden all affiants with limitless cross-examination".  The plaintiff's motion was a fishing expedition aimed at undermining their ability to conduct the litigation.  The appeal was dismissed.