In a dispute over the share ownership of a corporation holding a 25% interest in a real estate development entity, the responding party sought production of opposing counsel’s file relating to pre-litigation letters that described the ownership structure.
The requesting party argued that the responding party waived solicitor‑client privilege by later asserting that statements in those letters were a mistake.
The court held that waiver did not arise because the impugned statements were made in correspondence prior to the commencement of the application and did not represent a withdrawal of a position taken in pleadings.
As a result, the responding party was using privilege as a shield rather than a sword, and solicitor‑client privilege remained intact.
