In Gerbro Inc. v. The Queen, 2014 TCC 179, the Tax Court of Canada (TCC) examined two tests for an implied waiver of solicitor-client privilege: (1) when a communication between solicitor and client is legitimately “brought into issue in an action” and (2) “where the interests of fairness and consistency so dictate”.  The TCC held that neither test was met on the facts before it.  First, a statement of fact in the relevant pleading – which referred to the company’s knowledge of a proposed change in law – was not sufficient to “bring legal advice into issue” because the particular statement did not imply that the company intended to rely on legal advice to establish this knowledge (paragraph 54).  Second, “the bar is set high” for a court to require disclosure of legal advice based on the “fairness and consistency” test; the disclosure must be “vital” to the opposing party’s ability to answer an allegation made by the party seeking to preserve the privilege (paragraphs 58-60).  (See paragraph 50 for a general summary of all principles that may be applicable to an implied waiver of privilege.)