Parties to litigation can expect that particulars of the advice they have received from counsel will remain privileged in most instances. However, there are times when a party, through its actions or its pleadings, might waive this privilege. One York Street Inc. v. 2360083 Ontario Limited, 2026 ONCA 176, is a recent case where the Ontario Court of Appeal deemed a party to have waived privilege over legal advice it received based on assertions within the party’s pleadings.
The Applicant in this case, One York Street Inc., brought an action for unpaid rent three years after it had entered a three-year lease with the Respondent, 2360083 Ontario Limited. The day after the lease was signed, the parties entered into 20-year extension agreement. The Respondent leaseholder, in its original Statement of Defence, claimed that the Applicant Lessor had made extra-contractual representations regarding the nature of the property, specifically about the foot-traffic the Respondent could expect.
