Is privileged material waived through inadvertent disclosure?

The question of whether or not privilege is waived through inadvertent disclosure depends on the circumstances and requires the court to consider three factors – whether the error was in fact inadvertent and thus excusable, whether an immediate attempt was made to retrieve the documents, and whether the preservation of the privilege in the circumstances would cause unfairness to the receiving party (see Chan v. Dynasty Executive Suites Ltd., [2006] O.J. No. 2877). In this case I am informed by counsel for the defendant that the documents were produced in June of 2008, and as indicated earlier discoveries were conducted in October of 2008. At no time was an attempt made to retrieve the documentation, nor did counsel for the plaintiff take the position on the record that the documentation had been inadvertently disclosed and was privileged. In fact I am told that the first time that position was advanced by the plaintiff was in their responding materials to this motion delivered within the last couple of weeks. Furthermore there is no evidence amongst the materials from anyone suggesting circumstances of inadvertence. Finally I believe that in the circumstances described the preservation of privilege at this late date would cause unfairness to the receiving party.