Law360 Canada ( May 21, 2026, 2:35 PM EDT) -- Appeal by appellant from order quashing a production order on the basis that the respondents’ conduct in the litigation gave rise to a deemed waiver of solicitor‑client privilege. The appellant, a commercial landlord, sued the respondents for unpaid rent and abandonment of leased premises. The respondents’ original statement of defence and counterclaim alleged reliance on guarantees of foot traffic, stated they did not understand the ramifications of the lease extension, and pleaded they signed without legal advice. After discovery questions were refused on privilege grounds, the appellant sought production of the respondents’ former counsel’s file. Shortly before the hearing, the respondents amended their pleadings to remove express references to not receiving legal advice and asserted no waiver existed. The motion judge held privilege was deemed waived because the respondents’ defence relied on their state of mind regarding their legal rights under the lease and fairness required disclosure of the advice they had actually received. The Divisional Court allowed the appeal, holding the motion judge erred by applying the test to the original, rather than amended, pleadings, and by applying a correctness standard to privilege. The appellant submitted that the Divisional Court applied the wrong standard of review; the motion judge correctly found the amended pleading continued to place the respondents’ understanding of their legal position in issue; and waiver, once triggered, could not be unwaived by amendment. The respondents maintained that removing explicit references to lack of legal advice removed any reliance on legal understanding, that deemed waiver required explicit reliance on legal advice, and that fairness did not require disclosure....