Solicitor-client privilege only available where communication arises as part of the solicitor-client relationship

Ranger v. Penterman, 2011 ONCA 412, released today online, is a helpful reminder that merely because correspondence is between a lawyer and a client does not mean that correspondence is privileged. The correspondence must relate to legal matters. The Court holds:

[14] The fact that the documents were contemporaneous with a solicitor-client relationship does not necessarily make the communications in the documents privileged. Although there are several references to the ongoing litigation and privileged communications in the documents, the specific communications in issue were not related to the solicitor-client relationship. The respondents were requesting funds to pay for various ongoing living expenses pending the final resolution of the lawsuit. The documents include specific requests for funds to support living expenses such as groceries, gas, utilities, truck payments, property taxes for their home and farm lands, home insurance, and other living expenses.

[15] In our view, the trial judge erred in excluding the redacted documents. The requests for funds did not fall within the usual and ordinary scope of the professional relationship or within the continuum of communications in which the solicitor tendered advice.

[16] Furthermore, the respondents had already selectively introduced some of the documents. Obviously they are entitled to waive privilege but they cannot do so on a selective basis that results in an incomplete and misleading picture being presented to the court. Having put into issue the nature and purpose of the advancement of funds, it would be unfair to permit them to introduce some of the communications, but exclude other documents relating to the same issue. The redacted versions do not in any way disclose communications related to the Quebec lawsuit or solicitor-client advice and we hold they are admissible.