CIVIL EVIDENCE - Privileged relationships - Solicitor and client - Waiver of privilege

Law360 Canada (August 29, 2022, 9:16 AM EDT) -- Appeal by Macquarie Capital Markets Canada Ltd. (Macquarie) from the decision of a chambers judge that certain questions and undertakings had to be answered because Macquarie waived lawyer-client privilege. Macquarie terminated an underwriting agreement with the respondents/plaintiffs when the respondents failed to file a final prospectus before July 9, 2012, the deadline set out in the underwriting agreement. The respondents sued Macquarie, alleging that Macquarie and its external legal counsel, Torys LLP, agreed to extend the prospectus-filing deadline to July 13, 2012. The claim alleged that Torys had actual and ostensible authority to bind Macquarie. Macquarie defended, claiming that Torys neither agreed to an extension nor had the authority to do so. During questioning, the respondents asked questions of Macquarie’s corporate representative and former employees about the communications between Macquarie and Torys relating to the July 9, 2012 deadline. Macquarie’s corporate representative and other witnesses declined to answer those questions or related undertakings, claiming that the communications were privileged. The respondents secured an order directing Macquarie’s corporate representative and the other witnesses to answer most of the contested questions and undertakings. Macquarie appealed. The chambers judge held that Macquarie’s statement of defence raised a new factual issue. That issue was that Macquarie never instructed Torys to agree to an extension. The chambers judge therefore held that the questions and undertakings related to the July 9, 2012 deadline had to be answered because Macquarie waived lawyer-client privilege....
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