Parties entered into agreement of purchase and sale for condominium unit. Offer was conditional upon purchaser’s lawyer reviewing status certificate concerning monthly maintenance fees and special assessments and finding it satisfactory. Clause also provided that unless purchaser gave notice in writing no later than 6 p.m. on third day following receipt of status certificate that condition was fulfilled, offer was null and void and the deposit was to be returned to her in full without deduction. Purchaser relied upon condition but vendor would not return deposit. Purchaser successfully sued in small claims court and vendor appealed. Purchaser brought motion to introduce fresh evidence on appeal of emails exchanged between vendor and his lawyer. Motion granted. While emails were privileged at trial, vendor had subsequently sued his lawyer and attached emails to his claim. Therefore, vendor waived any solicitor client privilege attaching to those emails. Emails were relevant to issue of deadline for condition and met test for admission of fresh evidence.
Sood v. Tse (Dec. 4, 2014, Ont. S.C.J., Marrocco A.C.J.S.C., File No. 284/13) 247 A.C.W.S. (3d) 745.