M.J. Huberman

The defendant brought a motion for summary judgment seeking a declaration of ownership by adverse possession over a cottage property and a prescriptive easement over a right of way.

The property was originally owned by the defendant's father, who mistakenly believed he had gifted it to the defendant.

The court found that the defendant established adverse possession over most of the cottage property due to mutual mistake, which negated the requirement for inconsistent use.

However, the claim for adverse possession over an adjacent strip of land was dismissed for lack of actual possession.

The court also granted the defendant a prescriptive easement over the right of way based on over 40 years of uninterrupted use.

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.