The Plaintiff band representatives appealed a Case Management Order which forced them to produce a number of undertakings relating to privileged records. The Court, in the Majority, surveyed the authorities considering how privilege might be waived in a lawsuit, and relied on the Ontario decision of Leggat v Jennings, 2015 ONSC 237 (CanLII) for the principle that privilege might be waived by pleadings where: (i) the presence or absence of legal advice is material to the lawsuit; or (ii) the party who received the legal advice must make the receipt of it an issue or claim a defence based upon the advice.

The Court, in the Majority, noted that Rule 5.3 can be applied to the requirement to produce records where to do so would be “grossly disproportionate to the likely benefit”, but declined to apply the Rule in the circumstances. The Case Management Order was upheld and the Band was ordered to produce the records since they put privilege at issue in the Pleadings.