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Ken McEwan, Q.C. and Erin Kotz successful for plaintiff

Ken McEwan, Q.C. and Erin Kotz were successful for the plaintiff on an application that the defendant had impliedly waived solicitor-client privilege. The defendant sought to join additional parties to the litigation. The plaintiff argued that in giving an explanation for the delay to invoke the postponement provisions of the Limitation Act, the defendant voluntarily injected into the litigation the legal advice he received and his understanding of the law on the point, thereby waiving solicitor-client privilege over portions of his solicitors’ files respecting the advice he had received. The court agreed.
The defendant sought a stay of the court’s order and leave to appeal. While the Court of Appeal found the defendant had an automatic right of appeal, it declined his request for a stay on the basis, in part, that the appeal did not meet the merits threshold. The decision of the Supreme Court of British Columbia (Ohlhauser v. Kasian, 2021 BCSC 892) is found here, and of the Court of Appeal (Kasian Estate v. Kasian, 2021 BCCA 273) here.

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