Marc David Dunn Whiteley

The plaintiff moved for leave to appeal a decision setting aside a Master's order that required the defendant to produce solicitor-client communications.

The defendant had filed an affidavit explaining his previous solicitor's misapprehension of his position in support of a motion to amend his Statement of Defence.

The motion judge held that waiver of privilege depended on whether the amendment was made under Rule 51.05 or Rule 26.01.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the motion judge's decision and that the issue of conditional or partial waiver of privilege is of general public importance.