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Evidence - Privilege - Solicitor-Client (5). Sakab Saudi Holding Company v. Al Jabri [where documents privileged]
In Sakab Saudi Holding Company v. Al Jabri (Ont Divisional Ct, 2025) the Divisional Court considered an appeal of a dismissed motion "regarding the production of documents and related claims of solicitor/client privilege" in a civil fraud context.
Here the court notes that a lawyer's billing accounts are solicitor-client privileged, while stating doctrine on how such privilege attaches to documents generally:Law firm trust ledgers
[23] As set out by the Supreme Court in Chambre des notaires du Québec, at para. 72, it is well established that the accounting records of lawyers are presumptively privileged. They are “inherently capable of containing information that is protected by professional secrecy”.
[24] “Whether a document or the information it contains is privileged depends not on the type of document it is but, rather, on its content and on what it might reveal about the relationship and communications between a client and his or her notary or lawyer. If lawyers’ fees can reveal privileged information, it is difficult to see why this could not also be the case for accounting records. Such records will not always contain privileged information, of course, but the fact remains that they may contain some, so their disclosure could involve a breach of professional secrecy.”: Chambre des notaires du Quebec, at para. 73.
[25] Both the appellants and respondents on this appeal rely on the resulting legal test, which was correctly cited by the motion judge at paras. 26, 28-9 of the Decision, as summarized in Kaiser (Re), 2012 ONCA 838, at para. 30:Law firm administrative information is presumptively privileged, but the presumption may be rebutted by the party seeking disclosure. The presumption may be rebutted by evidence showing the following:
a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or,
b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client. [26] The appellants submit that because their notice of motion refers to law firm records about transactions for non-legal purposes, the motion judge erred in applying the presumption to that part of the document request. This submission overlooks the strong message in Chambre des notaires du Québec that where there is a request for administrative records of a law firm, the presumption applies.
[27] The motion judge did not err in applying the above test to the entire request for law firm trust ledgers. The motion judge found that information in the trust ledgers could provide meaningful information regarding privileged relationships. No reviewable error has been shown in that regard. The moving parties would have to rebut the presumption.
....
Redacted bank statements
[33] With respect to the redacted bank statements, the appellants broadly submit that bank statements cannot be privileged. That broad submission is not well-founded and need not be the basis for this ground of appeal. I agree with the more focused submission that bank statements for bank accounts other than a law firm’s are not presumptively privileged. The presumption applies to a lawyer’s administrative records, not the records of someone else. In this case, the redacted statements were for bank accounts of the respondents.
[34] The appellants submit that the motion judge erred by proceeding on the basis that since the law firm records were privileged, so too were the redacted entries in the other bank statements. The motion judge then held that the privilege had not been waived by using the ordinary mechanisms facilitated by banks or other financial institutions.
[35] No error has been shown regarding waiver. But I agree that an error arises by, essentially, importing the presumption of privilege into non-law firm bank accounts without more. On the record before this Court there is nothing more than an assertion that the redacted entries are transactions with law firms. They cannot establish privilege over those entries by merely asserting it: Wintercorn, at para. 45(vi), and the cases cited in it.
[36] The presumption does not apply to entries in non-law firm bank accounts based on an assertion only. The respondents may assert privilege over entries in their bank statements but they must demonstrate that those entries are privileged to the satisfaction of the court.
[37] I agree with the appellants that, otherwise, substantial problems arise since bank statements are routinely ordered produced in litigation. A bank is not, and practically should not be, routinely required to investigate into whether or not each and every entry on a bank statement might include privileged information before producing a bank statement in response to a court order. It is for the party asserting the privilege to do so and to prove it as may be necessary in the particular circumstances.
[38] The motion judge therefore erred in importing the presumption in the circumstances of this motion. Instead, the question should have been whether the respondents had sufficiently proved their privilege claim over the specific entries that were redacted from the non-law firm bank account documents. I make no comment on whether the privilege claim to the redacted portions of the bank statements would be upheld because they show transactions with their lawyers, or otherwise. That part of the motion must be addressed again, without assuming that the redacted entries are what they were claimed to be. . Sakab Saudi Holding Company v. Al Jabri
In Sakab Saudi Holding Company v. Al Jabri (Ont Divisional Ct, 2025) the Divisional Court considered an appeal of a dismissed motion "regarding the production of documents and related claims of solicitor/client privilege" in a civil fraud context.
Here the court considers basics of solicitor-client privilege:[19] The importance of solicitor/client privilege has been repeatedly confirmed by the Supreme Court of Canada. It is fundamental to the proper functioning of the legal system: Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 9; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455, at paras. 45-46; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at p. 833; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 26.
[20] The underlying principles were well-summarized by the motion judge, who held that the “obligation of confidentiality that springs from the right to solicitor-client privilege is necessary for the preservation of a lawyer-client relationship that is based on trust, which is indispensable to the continued existence and effective operation of Canada’s legal system”: Decision, at para. 9, quoting from Canada (National Revenue) v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, at para. 17.
[21] In turn, the Supreme Court has repeatedly underscored that solicitor/client privilege must be as close to absolute as possible: Chambre des notaires du Québec, at para. 82, citing R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at para. 35; Blood Tribe, at para. 9, citing R. v. McClure and Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 36; Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at para. 18, citing Lavallee and R. v. McClure.
[22] “[A]ny impediment to open candid and confidential discussion between lawyers and their clients will be rare and reluctantly imposed”: R. v. McClure, at para. 61; Pritchard, at para. 18. . Sakab Saudi Holding Company v. Al Jabri [future crime exception]
In Sakab Saudi Holding Company v. Al Jabri (Ont Divisional Ct, 2025) the Divisional Court considered an appeal of a dismissed motion "regarding the production of documents and related claims of solicitor/client privilege" in a civil fraud context.
Here the court extensively considers the 'future crime' exception to solicitor-client privilege:[42] Moving to the Supreme Court jurisprudence, in Blood Tribe, at paras. 9 - 10, Binnie J. (for the Court) summarized these fundamental principles regarding solicitor/client privilege and the exception at issue on this appeal:a) Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance. As such, it will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis.
b) The complex legal rules and procedures are such that, realistically speaking, they cannot be navigated without a lawyer’s expert advice. It is said that anyone who represents himself or herself has a fool for a client, yet a lawyer’s advice is only as good as the factual information the client provides. Experience shows that people who have a legal problem will often not make a clean breast of the facts to a lawyer without an assurance of confidentiality “as close to absolute as possible”.
c) It is in the public interest that this free flow of legal advice be encouraged. Without it, access to justice and the quality of justice in this country would be severely compromised.
d) While the solicitor-client privilege may have started life as a rule of evidence, it is now unquestionably a rule of substance applicable to all interactions between a client and his or her lawyer.
e) A rare exception is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes.
f) The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “as close to absolute as possible to ensure public confidence and retain relevance”.
[Emphasis added.] [43] The appellants submit the weight of the authority does not support the above summary of the exception by the Supreme Court, particularly the requirement that the communications be criminal in themselves or intended to further criminal purposes. I disagree. Blood Tribe was preceded by a series of Supreme Court decisions that consistently focused on the requirement that, for the exception to apply, the communications must be criminal in themselves or intended to further a criminal purpose.
[44] The appellants rely on R. v. Campbell and Shirose, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565. Binnie J. (for the Court) discussed the above exception in the context of a reverse sting operation giving rise to drug trafficking charges. The police had engaged in illegal activity and relied on their legal advice to show good faith. Although the decision was made based upon waiver, the Court commented on the “future crimes and fraud” exception to solicitor/client privilege. The articulation of the exception in this case does not assist the appellants. The Supreme Court again said that “there is an exception to the principle of confidentiality of solicitor-client communications where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime”, at para. 55.
[45] The appellants rely on a quote in R. v. Campbell and Shirose from Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at pp. 835-36. In Solosky v. The Queen, the Supreme Court refers to the exception in this way: “if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant.” The appellants submit, based upon this quote, that the fraud need not be a crime. However, that paragraph should be read as a whole. Binnie J. goes on to quote from a criminal fraud case, R. v. Cox and Railton (1884), 14 Q.B.D. 15. As put in that case, and adopted by the Supreme Court, the client must have a criminal object. The communications must be “in furtherance of a criminal purpose”: Solosky v. The Queen, at p. 835-836, as referenced in R. v. Campbell and Shirose, at para. 55.
[46] The Supreme Court’s emphasis on criminal conduct was also underscored in Descȏteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at p. 881. Lamer J., as he then was, noted the requirement that the communications must be criminal in themselves or intended to further a criminal purpose, also citing R. v. Cox and Railton.
[47] More recently, in R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 25, the Supreme Court described the exception as applying to communications between a lawyer and a client that are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime, citing the above authorities.
[48] In my view, the Supreme Court of Canada has set clear principles that apply to what is a rare exception to the fundamental right to solicitor/client privilege. For the exception to apply, the appellants must show that the communications with the law firm were criminal in themselves or intended to further a criminal purpose.
[49] The appellants cite a group of non-appellate cases and commentaries from here and elsewhere that suggest that the exception should apply to any intentional dishonestly or deceit, including a claim for civil fraud or breach of a court order. Based upon those cases, the appellants submit that a civil fraud, and the breach of a court order, are sufficient to invoke the exception. They also note that both fraud and the breach of a court order have a parallel criminal offence.
[50] There have been a number of non-appellate decisions that touch on this issue, some of which support the appellants’ view and others that do not. Beginning with those that support the appeal, one example is the decision of Perell J. in Dublin v Montessori Jewish Day School of Toronto (2007), 2007 CanLII 8923 (ON SC), 85 O.R. (3d) 511 (S.C.J.) and the cases cited in that decision. In Perell J.’s view, there was no reason why the exception should not include communications perpetrating tortious conduct that may become the subject of civil proceedings: at para. 39. Perell J. expressly acknowledged that his view may be contentious: at para. 47. Other cases go so far as to say the exception should extend to any intended unlawful conduct, including breach of contract claims: 1784049 Ontario Ltd. v. Toronto (City of) (2010), 2010 ONSC 1204 (CanLII), 101 O.R. (3d) 505 (S.C.), at para. 35, quoting from Goldman Sachs and Co. v. Sessions, [1999] B.C.J. No. 2815, 38 C.P.C. (4th) 143.
[51] I accept that there are cases put forward by the appellants, including the above cases, which would allow for what would be a very substantial broadening of what is intended to be a narrow exception to solicitor/client privilege. Those comments sometimes appear in obiter where the issue is waiver: e.g., Dublin; Mizzi v. Cavanagh, 2021 ONSC 1594; BMO v. Iskenderov, 2019 ONSC 3567; CanBook v. Borins, 1999 CanLII 14842 (ON SC).
[52] There is also non-appellate authority that is contrary to the appellants’ position. The motion judge followed the recent decision in Wintercorn. In contrast to the cases relied upon by the appellants, Wintercorn follows the above Supreme Court of Canada jurisprudence, concluding as follows at para. 50:... the fraud exception applies only in situations where a client has engaged in fraud (either with counsel or by deceiving counsel) through impugned communications which were “criminal in themselves or intended to further criminal purposes”. It does not apply to fraud by the client on the lawyer to engage in a civil wrongful act, such as the civil fraud and other wrongful conduct alleged in the present case. [Citations omitted.] [53] In Wintercorn, Glustein J. correctly sets out both the principles that apply to solicitor/client privilege, and the principles that apply to the exception at issue here, citing and following the above binding cases from the Supreme Court of Canada. In doing so, Glustein J. finds as follows, at paras. 59-78:a) that the exception is very limited and is rare;
b) that it applies only when the client engaged in fraud with or on the lawyer through impugned communications that were “criminal in themselves or intended to further criminal purposes”;
c) that it is the “criminal” object of the client that results in the fraud exception;
d) that the exception applies only if the client conspires with the lawyer or deceives the lawyer to advance the “future crime”;
e) that the privilege is not destroyed merely because an act is later deemed improper or illegal;
f) that the restriction of the fraud exception to the “rare” and “extremely limited” circumstances of “communications criminal in themselves or intended to further criminal purposes” is consistent with the sanctity of solicitor-client privilege;
g) that to permit a party to access solicitor-client communications because a client is alleged to have deceived a lawyer with respect to a civil fraud or other unlawful civil conduct would significantly weaken the privilege; and,
h) that the above mandate by the Supreme Court of Canada, limiting the exception, has been followed by the Ontario courts (citing Carroll v. The Toronto-Dominion Bank, 2022 ONSC 2395; Whitty v. Wells, 2016 ONSC 7716, leave to appeal refused, 2017 ONSC 3682; Brome Financial Corporation v. Bank of Montreal, 2013 ONSC 4816). [54] I agree with the analysis in Wintercorn, applying the binding principles set out by the Supreme Court of Canada. Contrary to the appellants’ submissions, a claim for civil fraud is not enough. The proposed application of the exception where there is a breach of a court order seeks an even greater expansion of this very limited exception. The submissions of the appellants invite the very balancing of interests on a case-by-case basis that has been specifically rejected by the Supreme Court.
[55] Wintercorn also considered the issue of whether or not the plaintiffs had established the necessary foundation for the exception if it could apply to a claim for civil fraud. As summarized at para. 50, “even if the fraud exception applied in the civil context, the plaintiffs have not led sufficient evidence to establish a prima facie case that [the client] had the requisite intent to defraud counsel in order to commit an unlawful act”.
[56] In considering this next step, Glustein J. used the threshold test as set out in the above case law that allowed for this exception to apply in civil claims. He set out that test, at para. 80, as follows:if the exception is available in the case of unlawful civil conduct, the plaintiff must establish, on a prima facie basis, that
(i) the challenged communications related to proposed future conduct;
(ii) the client sought to advance conduct that it knew or should have known was unlawful; and
(iii) the wrongful conduct under contemplation was clearly wrong. [57] The threshold test, as articulated by the appellants, also sets a high bar. They submit that the exception will apply where there is evidence that the client knew or ought to have known that the communications with their lawyer were in furtherance of an unlawful purpose and conduct that was clearly wrong.
[58] In the present case, the notice of motion is very general. It does identify what is a very lengthy time period – commencing in 2017 and forward to the present time. As noted above, that time period means that the core alleged fraud cannot be the future unlawful activity under the exception. The notice of motion then seeks the trust ledgers for “any” law firm. It does not identify any of the law firms said to have been used to facilitate a future fraud or breach, nor does it identify what step or steps were the future fraudulent steps that those law firms allegedly facilitated. No specific transactions are identified in the request for production from “any” law firm. The evidence on the motion contains ad hoc references to law firms, without tying a firm to a later fraudulent transaction let alone providing prima facie evidence that meets the knowledge requirement or other aspects of the above test.
[59] The appellants rely on the finding of a strong prima facie case for fraud on the original ex parte mareva injunction, including findings that Saad Aljabri was adept at moving money around the world and continued to do so. However, on this motion the appellants have not identified the steps taken commencing in 2017, after the core fraud had taken place, and forward to the present time. Instead, they submit that transactions with law firms subsequent to the mareva injunctions in 2021 and 2022 were taken in breach of those mareva injunctions. They submit that this is the intentional and dishonest conduct falling within the exception. They further submit that we should infer that there were breaches of the mareva injunctions since the respondents must have used frozen funds to pay their lawyers.
[60] I have difficulty with these very general submissions. First, if the exception could apply, the appellants were still obliged to meet an evidentiary threshold to show it applies to the documents request. Second, the finding of prima facie fraud was made ex parte and on a record that does not appear to have been before the motion judge and appears to have been focused on events that predate the time period for the document request. Third, there was a contempt motion regarding the alleged breach of the Saad Mareva (including the sought after inference that it was breached to pay lawyers), which was dismissed in 2024, as set out above. The alleged wrongful activity was not sufficiently proved. Fourth, given the fundamental importance of solicitor/client privilege, general submissions and sought-after broad inferences are not enough to displace the privilege for “any” law firms for a period from 2017 to the present time. Therefore, if I had concluded that the exception could apply to this civil claim, I would still have dismissed this appeal.
[61] I acknowledge that the appellants may not have all the information about law firms and transactions, but this is not a question about examinations for discovery. It is a request to displace a fundamental right. The appellants have the burden and have gathered a considerable amount of information in their investigation. To benefit from this rare exception, there must be evidence showing that the above criteria are met on a prima facie basis. As noted in Wintercorn, if the appellants do not have the evidence, they could try again when they get more. . Ontario Civilian Police Commission v. Moreira
In Ontario Civilian Police Commission v. Moreira (Div Court, 2024) the Divisional Court ordered a summons against a police force, with the force partially-resisting on solicitor-client privilege grounds. This issue was to be decided under Public Inquiry Act procedures:[2] The Commission brought a stated case to the Divisional Court under s. 33(5) of the Public Inquiries Act for a determination whether the DRPS has a lawful excuse for not producing the withheld emails.
[3] The parties agree the only issue for me to decide is whether the emails are privileged.
[4] Solicitor-client privilege is essential to the proper functioning of our legal system and must remain as close to absolute as possible: Lavallee, Rackel & Heiz v. Canada (Attorney General), 2002 SCC 61 at para. 36. It covers all communications between a lawyer and client related to giving or receiving legal advice: Solosky v. Canada, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at 838. Solicitor-client privilege attaches to the facts communicated by the client and the lawyer’s work product, both of which could reveal the basis for the lawyer’s advice: R. v. Blank, 2006 SCC 39 at para. 49, Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20 at paras. 39 to 40. It even attaches to information of an administrative nature that is related to obtaining legal advice: Descouteaux v. Mierzwinksi, [1982] 1 SCR at 893. Solicitor-client privilege does not attach to communications: (a) in which legal advice is not sought or offered; (b) that were not intended to be confidential; or (c) that were made in furtherance of an illegal purpose: Solosky, at p. 835.
[5] As the party asserting the privilege claim, the onus is on the DRPS to establish the emails fall within the scope of solicitor-client privilege.
[6] The Commission argues DRPS has made a blanket claim of privilege and has not adduced sufficient evidence to establish the privilege applies to the emails in question. I appreciate the Commission’s frustration with the evidence presented by DRPS. The affidavit of Chief Moreira simply states the emails are “between the Service and its lawyers” and “are within the framework of the lawyer-client relationship.” No details are provided about the emails.
[7] Counsel for the DRPS argues that no information could be provided about the emails without compromising the privilege or risking a claim that the DRPS has waived the privilege.
[8] I agree with the Commission that it would have been preferrable for DRPS to provide some information about the emails, such as the number of emails, who the emails were between and perhaps the date on which the emails were exchanged. Having said that, the parties agreed that the Respondent could file the emails over which the DRPS claims privilege as part of the record on this stated case.
[9] Based on my review of the emails, I am satisfied they are all protected by solicitor-client privilege. They all involve communications between senior members of the DRPS and counsel to the DRPS related to the provision of legal advice. They are not emails between senior members of the DRPS that were also copied to counsel. This is not a case where a party is trying to improperly hide communications that would otherwise be producible behind the cloak of solicitor-client privilege merely because they were sent to counsel: Jacobson v. Atlas Copco Canada Inc., 2015 ONSC 4, Nova Chemicals et al. v. CEDA-Reactor Ltd. et al., 2014 ONSC 3995. The emails all involve one or more of the people named in the summons. They also involve counsel for the DRPS. And they all relate to the provision of legal advice to the DRPS.
[10] I, therefore, find the emails are protected by solicitor-client privilege and the DRPS is justified in withholding them. . LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2024) the Divisional Court dismisses a JR from an Ontario Privacy Commissioner's interlocutory order during an investigation which ruled against the applicant's privilege claims.
At paras 62-96, the court examines and rules against a range of solicitor-client and litigation privilege claims. In my view these paras contain examples of colourable arguments, targeted at avoiding public disclosure of potentially applicant-harmful evidence for use in collateral litigation.
. Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada
In Loblaw Companies Limited v. Royal & Sun Alliance Insurance Company of Canada (Ont CA, 2024) the Court of Appeal considered an insurer appeal of a complex interlocutory application to declare 'duties to defend' and if so, the allocation of legal expenses between defendants, in five merged opioid class actions against several retailers, each with multiple insurers.
Here the court addresses solicitor-client privilege:[269] The Supreme Court addressed the importance of solicitor-client privilege in Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 26 and 82:The importance of solicitor-client privilege to our justice system cannot be overstated. It is a legal privilege concerned with the protection of a relationship that has a central importance to the legal system as a whole. In R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, Chief Justice Lamer described its rationale as follows:The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication. [Emphasis added; p. 289.] ...This Court has found that solicitor-client privilege is both an evidentiary privilege and a substantive principle. In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, Arbour J. explained that “[s]olicitor-client privilege is a rule of evidence”: para. 49. Similarly, in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18, [2004] 1 S.C.R. 456, the Court observed that the case law “establishes the fundamental importance of solicitor-client privilege as an evidentiary rule, a civil right of supreme importance and a principle of fundamental justice”: para. 34 (emphasis added). In Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, Lamer J. described solicitor-client privilege as a “rule of evidence”, which “had also since given rise to a substantive rule”: pp. 872 and 875. Solicitor-client privilege is thus both a rule of evidence and a substantive rule. [Emphasis in original.] [270] In Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, Gascon J. also stressed the importance of litigation privilege at para. 4:I would dismiss the appeal. Although there are differences between solicitor‑client privilege and litigation privilege, the latter is nonetheless a fundamental principle of the administration of justice that is central to the justice system both in Quebec and in the other provinces. It is a class privilege that exempts the communications and documents that fall within its scope from compulsory disclosure, except where one of the limited exceptions to non‑disclosure applies.
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