Law Note - Solicitor-Client Privilege: Down the Slippery Slope? 


Spring 2008 - (Litigation Bulletin)

Litigation Bulletin
When a client communicates with legal counsel, he or she expects and relies upon the confidential nature of those communications. A client's ability to speak frankly and honestly with his or her legal counsel, without fear of self-incrimination, for the purpose of obtaining professional legal advice, forms the very foundation of our solicitor-client relationship and is a critical factor in ensuring access to justice. The court protects these communications from disclosure under the rubric of solicitor-client privilege, if the communications meet three criteria: (1) It was between a client and his or her legal counsel, who must be acting in a professional capacity as a lawyer; (2) It was given in the context of obtaining legal advice; and (3) It was intended to be confidential.

There are, however, several strictly delineated exceptions to the protection afforded by solicitor-client privilege. Communications made in furtherance of unlawful conduct, for example, are not protected and must therefore be disclosed by legal counsel. The courts have typically defined unlawful conduct as meaning crimes or acts of fraud. The question, however, is whether this definition of unlawful conduct can be extended to include tortious conduct such as, for example, intentional or negligent infliction of emotional harm.

In Dublin v. Montessori Jewish Day School of Toronto , Justice Perell concluded that solicitor-client communications that may have been in furtherance of tortious conduct are not protected by solicitor-client privilege. According to Justice Perell, there is a line of authorities that can be used to expand the definition of unlawful conduct to include torts, if the client knew or should have known that the communications in question were with respect to the conduct of a tort.

Since the release of Justice Perell's decision, permission to appeal has been granted. In fact, in a brief endorsement, The Honourable Justice Carnwath has brought into question Justice Perell's decision, stating that: "[T]here is good reason to doubt the correctness of Perell J.'s decision. Given the sanctity of solicitor-client privilege, the expansion of the exception for furtherance of crime to tortious acts of the kind alleged in this Statement of Claim, may go too far."

This law note appeared in InBrief Spring 2008
and was extracted and edited from an article that appeared in Commercial Litigation Brief Winter 2007/2008 .