News + Insights

On August 19, the Court of Appeal for Ontario released its decision in Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586 (on appeal from 2025 ONSC 35 (Div Ct)). Our partners John Adair and Robert Trenker acted for the successful respondent in this precedent-setting appeal addressing the scope of solicitor-client privilege and its crime-fraud exception in cases of civil fraud.

The underlying action involves allegations that a former high-ranking Saudi Arabian government official orchestrated a multi-billion-dollar fraud. The appellants sought broad production of law firm trust ledgers and unredacted bank statements. They argued that the presumption of privilege over lawyers' accounting records should be limited to police/state seizures of materials and not apply on a contested civil motion. Alternatively, they argued that if the presumption does apply, either the presumption had been rebutted or the crime-fraud exception to solicitor-client privilege should compel disclosure in this case.

The Court of Appeal for Ontario rejected these arguments and dismissed the appeal.

First, the the Court held that trust ledgers are presumptively privileged—in all cases—regardless of the procedural context in which they are sought. The presumption arises because a trust ledger is an accounting record of a lawyer reflecting dealings with a client from which privileged communications might be deduced. And that remains true irrespective of the procedural context in which that record is sought.

Applied to this case, the Court held that the appellants’ mere allegation, without evidentiary support, that the law firms whose records were requested were being used for “non-legal” transactions (i.e., as conduits only) was insufficient to rebut the presumption of privilege.

Second, the Court clarified that the crime-fraud exception to solicitor-client privilege is similarly context agnostic and accordingly not limited to criminal proceedings. It can also apply in civil (or regulatory/quasi-criminal) proceedings where a client intended for their communications with their lawyer to further a fraud or facilitate contemptuous breach of a court order. Since the exception is focused on the nature and purpose of the communication, the subsequent procedural context in which it arises is of no moment. 

The exception remains, however, subject to strict preconditions, including that the party seeking to invoke it must demonstrate—on a prima facie basis—that communications took place that had the character that takes them within the exception. The Court dismissed the appeal on the basis that the appellants had failed to establish the requisite prima facie case to substantiate their sweeping request. 

Ultimately, in dismissing the appeal, the Court of Appeal for Ontario has provided important confirmation that given the fundamental importance of solicitor-client privilege to the integrity of our justice system, “[t]he scope of the privilege will be interpreted as broadly, and the scope of any exceptions or exclusions, as narrowly as possible to ensure that the privilege itself remains robust.”