Di Iorio v. MacNamara et al., 2026 ONSC 560

Citation: Di Iorio v. MacNamara et al., 2026 ONSC 560

Court File No.: CV-19-00620193-0000 Date: 2026-01-29

Ontario Superior Court of Justice

Between:

Anthony Di Iorio Plaintiff (Appellant)

– and –

Tyler MacNamara, Toronto Standard Condominium Corporation No. 2227, FirstService Residential Property Services Ontario Ltd. o/a FirstService Residential Ontario, Your Community Realty Inc. o/a Royal LePage - Your Community Realty, Jason Silva aka Jay Silva, 500 Wellington West Ltd., Freed Developments Ltd., FirstCon Group Ltd., Service Plus Aquatics Inc. aka SPA Defendants (Respondents)

Counsel: Pulat Yunusov, for the Plaintiff (Appellant) Joseph Juda, for Your Community Realty Inc. o/a Royal LePage - Your Community Realty, Jason Silva aka Jay Silva (Respondents)

Heard: January 27, 2026

Before: John Callaghan J.

Reasons for Decision

1This is an appeal of a decision of Associate Justice La Horey in respect of a motion to compel answers on a discovery that were refused because of solicitor-client privilege. The motion judge found that fairness required an implied waiver of the privilege because there was a voluntary intention to waive privilege in a companion action that is to be tried at the same time or immediately after one another. She accordingly ordered that the appellant answer the refused questions.

2For the following reasons I am dismissing the appeal.

Background

3This action arises out of a real estate transaction. The appellant purchased a luxury condominium unit with a swimming pool for his exclusive use. The defendants, Jason Silva and Your Community Realty Inc., o/a Royal Lepage – Your Community Realty (the "Realtors"), were sued for failing to recommend terms in the agreement of purchase and sale related to the condition of the pool. But for that negligence, the appellant says he would not have entered the agreement of purchase and sale or would have offered a lesser amount. The appellant has also sued the vendor of the sold unit, the condominium corporation, the developer, and the pool service company, none of which engage in this appeal.

4In a separate action, the appellant sues his real estate solicitor and his firm, as well as his title insurer (the "Companion Action"). He alleges that his solicitor was negligent in his advice in connection with the agreement of purchase and sale including by failing to recommend terms relating to the condition of the pool. Again, but for this advice, the appellant states he would not have entered into the agreement of purchase and sale or would have offered a lesser amount. The damages claimed are the same in each action and the pleadings are essentially the same in each action.

5The parties have consented to having the two actions tried together, or immediately after one another, subject to the discretion of the trial judge. It is agreed that the trial judge will be required to apportion liability if the defendants in both actions are found to be liable to the appellant as the damages in both actions are the same.

6The Realtors brought a motion in respect of answers refused on discovery. The refused questions related to the legal advice given to the appellant by the lawyer and relied upon by the appellant in entering the agreement of purchase and sale. The questions were refused because of solicitor-client privilege. The appellant has already produced the non-privileged part of the lawyer's file in this proceeding.

7The trial is scheduled for early May 2026.

8The parties advise that for various administrative reasons, no order has yet been issued. Because of the pending trial, they both requested that this Court proceed with the appeal. The pending trial requires that this appeal be addressed now. The parties need to sort out this issue so that they are ready for trial in May. Accordingly, I agreed to proceed.

Standard of Review

9Because the appellant argues that the motion judge misapplied the applicable legal principles relating to waiver of privilege, both parties submit that the standard of review in this case is one of correctness. In addressing the standard of review, the Divisional Court has stated an associate judge's decision "should not be interfered with unless she made an error of law, exercised her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable or overriding error". This standard is said to apply to the determination as to whether the evidence is privileged or whether the privilege has been waived: Roynat Capital Inc. v Repeatseat Ltd., 2015 ONSC 1108 (Ont. Div. Ct.), para. 10.

Of course, an assessment of privilege requires a "proper evidentiary basis": General Accident Assurance Company v. Chrusz, 1999 7320; 45 OR (3d) 321 (ON CA). As such, there may be certain findings that require the more deferential palpable and overriding standard of review as set out in Housen v. Nikolaisen, 2002 SCC 33, at para. 8. However, in this case, both parties argued this appeal on the standard of correctness. As I find that the Associate Judge was correct, it is sufficient to address this appeal on that standard.

Decision Below and Analysis

10In the argument below and before me, both parties agreed that the issue to be decided was "whether the appellant waived solicitor-client privilege by implication".

11In her decision, Associate Justice La Horey reviewed the law of privilege. There is no issue with her identifying the proper legal principles for both express and implied waiver of privilege. She began with the often-cited case of S. & K. Processors Ltd. v. Campbell Ave. Herring Producers Ltd., 1983 407 (BC SC) where Justice McLachlin (as she then was) reviewed the law of both express and implied waiver. The test was adopted by the Ontario Court of Appeal in R. v. Youvarajah, 2011 ONCA 654 at paras. 146-147. The Associate Judge cited the key passage from of S. & K. Processors Ltd that reads:

[6] Waiver of privilege is ordinarily established where it is shown that the possessor of the privilege: (1) knows of the existence of the privilege; and (2) voluntarily evinces an intention to waive that privilege. However, waiver may also occur in the absence of an intention to waive, where fairness and consistency so require. Thus waiver of privilege as to part of a communication will be held to be waiver as to the entire communication. Similarly, where a litigant relies on legal advice as an element of his claim or defence, the privilege which would otherwise attach to that advice is lost Rogers v. Hunter 1981 710 (BC SC), [1982] 2 W.W.R. 189, 34 B.C.L.R. 206 (S.C.).

12Citing Wigmore on Evidence, McNaughton revision (1961), Justice McLachlin noted with waive by implication (also known as implied waiver) that "double elements are predicated in every waiver — implied intention and the element of fairness and consistency" and that "there is always some manifestation of a voluntary intention to waive the privilege at least to a limited extent": at para. 10.

13It is not disputed that the appellant intends to rely on the legal advice of his solicitor in the Companion Action to explain why he entered into the agreement of purchase and sale. In that regard, there is no doubt that the plaintiff's intention and reliance on the solicitor's advice is an element of that cause of action which requires the plaintiff to waive solicitor-client privilege. In that regard, the plaintiff voluntary intends to waive the privilege. This is not a situation where a solicitor seeks to impose a waiver on a client to defend the action, but it is a positive and voluntary intention by the appellant to waive privilege to advance the claim in the Companion Action.

14The Associate Judge found that the appellant has raised virtually identical allegations in this action but in the context of relying on the Realtors. That is, in both actions, the appellant asserts that but for the negligent advice of both the Realtors and the solicitor, he would not have purchased the unit or would have offered a lower amount. In my view, the Associate Judge correctly concluded that the appellant has put his state of mind in issue as it relates to entering the agreement of purchase and sale in both actions.

15Her Honour cited cases that support that where a party puts its state of mind in issue as it relates to legal advice, the privilege is waived: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 26. As Justice Perrell noted in Creative Career, waiver only occurs where the advice is not only material but "the party who received the legal advice must make the receipt of it an issue in the claim or defence": at para. 30. In this case, the Associate Justice correctly determined that the advice is material to both actions and that the appellant has put the receipt of the advice in issue to establish that he relied upon the solicitor in entering the agreement of purchase and sale. In doing so, Her Honour correctly concluded that there was a manifest intention to waive privilege at least to a limited degree to establish his intention in entering the agreement of purchase and sale.

16Her Honour went on then to consider the issues of fairness and consistency. She concluded that the appellant took inconsistent positions between the two actions in that he attributed the cause of the same loss to his solicitor in the Companion Action and the Realtors in this action. In both cases, the central issue is his state of mind, being "but for" the advice, he would not have entered into the agreement. She concluded that having voluntarily expressed the intention to waive the solicitor-client privilege in the Companion Action, it would be unfair to permit the appellant to shield that advice in this action as it is central to the intention of the appellant. Whether the appellant relied on the Realtors, the solicitor or both is central to the determination of both actions and will dictate any apportionment of liability.

17In my view, there is no error in the Associate Judge's reasoning. The appellant's intention in entering the agreement of purchase and sale is relevant to both actions. The advice given and relied upon by the solicitor is relevant to the assessment of reliance in both actions. There has been an express intention by the appellant to waive and rely on the solicitor's advice in the Companion Action. This is not a situation where there is any inadvertence in waiving or whether the intention is not clear. The appellant intends to rely on both the solicitor's advice and Realtors' advice in entering the transaction. The Associate Judge correctly identified an intention to waive the advice in respect of a central issue relevant to both proceedings.

18Because the motion proceeded on the basis of the doctrine of implied waiver, the Associate Judge then correctly considered the second element as set out in S. & K. Processors Ltd., being whether fairness and consistency required that the waiver should extend to this action. In my view, she correctly concluded that it would be unfair given the overlap in the proceedings and the need for consistency in both actions for the waiver not to extend to this action. Frankly, it is difficult to envision how a trial judge would hear both actions, either together or one after another, and not have regard to all the advice received by the appellant to ascertain the bases of his alleged reliance in entering the agreement of purchase and sale. I further agree with the Associate Judge that there is the risk of inconsistent decisions if the evidence adduced by the appellant as to his intention in the Companion Action is different than the evidence in this action. Furthermore, it puts the trial judge in the invidious position of determining two actions, either heard together or one after the other, where the same central issue is to be decided on a different factual record if the waiver does not apply to this action.

19I disagree with the appellant that the trial judge used fairness as the determinative factor in her assessment. She used the concept of fairness and consistency as intended and expressed in S. & K. Processors Ltd. and only after she concluded there was some manifest intention by the appellant to waive the solicitor client evidence in respect of a central issue in the two actions.

20I also reject the suggestion that the decision somehow compromises the sanctity of privilege. Her Honour was alive to the importance of privilege as a "cornerstone of our legal system." She merely applied the accepted and established test regarding implied waiver of privilege.

The appellant directs me to the obiter dicta in SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946 where the court noted that there are often separate actions where lawyers may be sued and that this may be done to preserve the privilege where the lawyer seeks to rely on its advice as a defence to the action. I agree with the Associate Judge that the Court of Appeal did not address the circumstance of when privilege is waived. Indeed, the reference in SIF Solar was to circumstances where the lawyer sought to use the solicitor-client advice for a limited purpose of a defence rather than the client voluntarily waiving privilege in support of an action. This case involves the latter which is fundamentally different as a lawyer has no basis to waive of the solicitor-client privilege the privilege belongs to the client.

Disposition

21For the above reasons, the appeal is dismissed.

22I do note that one refusal requested was to produce the lawyer's entire file. The parties are agreed that that question must be limited to the production of relevant material to the matters in issue in this action, and nothing more.

23On the issue of costs, the Realtors are entitled to their partial indemnity costs in the amount of $6,000. This is the amount requested from the Realtors and was half of what was requested by the appellant. In my view it is fair and reasonable in the circumstances and clearly an amount that the appellant could reasonably expect to pay in the circumstances as it is half of what the appellant sought if it succeeded.

Callaghan J.