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Representation - Lawyers - Accounting Records. 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 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.
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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.
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