Strata Alert: Section 36 of the Strata Property Act and legal opinions

Section 35(2)(h) of the Strata Property Act requires a strata corporation to keep legal opinions obtained by the strata corporation, and s. 36 requires the strata to produce copies of those opinions to owners upon request.  When a strata corporation is involved in legal proceedings it may receive requests for copies of legal opinions and legal invoices it has received during the dispute.  Sometimes these requests come from parties directly involved in the litigation but sometimes they come from other owners or even potential buyers as part of the Form B disclosure process.

During litigation, parties must produce all relevant records that can be used by any party in the lawsuit to prove or disprove a fact at issue in the case.  Legal advice, however, is protected from disclosure because it is subject to “solicitor-client privilege” or “legal advice privilege”.  Solicitor-client privilege attaches to any confidential communication between a client and her lawyer and generally speaking, the communication remains confidential until the client “waives privilege” by disclosing the advice to the other side or even a third party.  This disclosure can happen when a strata produces legal opinions or even legal invoices in response to a request under s. 36 of the Act.

Strata’s must be careful when handling requests for copies of legal opinions and invoices.  As was observed in Azura Management (Kelowna) Corp. v. Owners of the Strata Plan KAS2428, 2009 BCSC 506, the Strata Property Act does not deal with solicitor-client privilege very well.  Section 169, for example, says that if the strata corporation is involved in a lawsuit with an owner, the owner does not have a right to “information or documents relating to the suit, including legal opinions kept under section 35 (2) (h)” or to “… attend those portions of any annual or special general meeting or council meeting at which the suit is dealt with or discussed”. Unfortunately, s. 169 only applies to the owners involved in the lawsuit. It does not apply to tenants, or to other owners who are not involved in the lawsuit or to anyone else who may be able to make a request under s. 36 with the authorization of an owner.

Another risk to confidential legal advice arises when the strata sue the developer or the builder (such as in a 2-5-10 warranty claim). In those cases, owners who may be allied to the developer can make requests for legal opinions about the claim, and we have found our legal opinions attached to affidavits filed in court by other parties on more than one occasion.  Once a client waives privilege, it cannot be easily “un-waived”.  Once the legal advice is out in the public domain, the “other side” in the lawsuit will have vital information about the strata’s legal strategy, and this information can be used against the strata by the other parties with devastating effect.

When a strata receives a request for legal opinions or legal invoices, the council and the strata manager should consider whether the requested documents are subject to solicitor-client privilege.  If the opinion and invoices related to active or intended litigation, the strata can and should withhold production of those documents on the strength of the decision in Azura Management v KAS2428.  If the strata are not involved in active litigation, it should consider obtaining legal advice before disclosing the documents, especially if litigation is likely at some point in the future.

WHAT WE DO – Lesperance Mendes represents owners, tenants, strata corporations and property managers in a variety of legal disputes.  To learn more about how our team of experienced lawyers can assist you, please email Paul G. Mendes at or call us at 604-685-3567.

The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Legal advice should be sought about your specific circumstances.

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567