A master’s finding that the plaintiff impliedly waived solicitor-client privilege by making his state of mind a central issue in his subsequent litigation was upheld on appeal.

Stelmaschuk v. College of Dental Surgeons of British Columbia, [2017] B.C.J. No. 1549, 2017 BCSC 1371, British Columbia Supreme Court, August 3, 2017, J.E. Watchuk J.

The plaintiff, a former dentist with bipolar disorder, had a number of outstanding complaints about him to the defendant College. To resolve these matters, the plaintiff, with the advice of his legal counsel, entered into an agreement with the defendant whereby he agreed to never practice dentistry again in any jurisdiction in the world. Three years later, the plaintiff filed an action seeking to set aside the agreement on the basis that he was mentally incompetent and incapable of understanding his legal rights at the time he entered into it. To respond to the plaintiff’s claim, the respondent asked the plaintiff’s former legal counsel a series of questions concerning his capacity at the time of entering into the agreement. The former counsel said that as the questions went to the heart of the solicitor-client relationship, they could not answer them without the plaintiff’s permission or a court order.

In chambers, the master concluded that the plaintiff had impliedly waived solicitor-client privilege by making his state of mind a central issue in the litigation. Maintaining such privilege would be unfair to the defendant, since fairness and consistency required allowing the defendant to ask the plaintiff’s former counsel about their advice to the plaintiff and their observations of his competency at the time of entering into the agreement. The master ordered production of the former counsel’s file and their attendance at an interview with the defendant.

The plaintiff appealed the master’s order, arguing the master erred in her consideration of the evidence concerning waiver and erred in ordering an interview rather than an examination, contrary to Rule 7-5. On appeal, the court confirmed the applicable standard of review was whether the master’s decision was “clearly wrong.” The court rejected the plaintiff’s first argument, noting the plaintiff had clearly waived privilege in how the pleadings were framed. The court also rejected the second ground of appeal, noting Rule 7-5 did not apply since the witnesses were not refusing a responsive statement but were prevented from doing so since the plaintiff had taken the position that the solicitors were bound by solicitor client privilege. The master’s decision to order the interview was not clearly wrong, and the appeal was dismissed.