The defendants appealed a Master’s order compelling them to answer discovery questions concerning legal advice they had received from government lawyers regarding the refusal to register private career colleges under the Private Career Colleges Act, 2005.
The Master held that solicitor‑client privilege had been waived because the defendants referenced legal advice during discovery and allegedly placed their state of mind in issue.
The court held that merely acknowledging receipt of legal advice, or explaining that conduct occurred after receiving advice, does not waive privilege.
Waiver arises only where a party relies on legal advice as a substantive element of a claim or defence.
As the defendants did not rely on legal advice to establish their good faith defence, privilege was not waived and the Master’s order was set aside.
