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AGB protects solicitor-client privilege amid allegations of civil fraud

John Adair, Jordan Katz, Sean Pierce, and Logan St. John-Smith successfully defended a motion before the Ontario Superior Court of Justice - Commercial List seeking to compel production of a law firms’ trust ledgers, including the identity of the person paying the respondents’ legal fees, in the context of proceedings involving allegations of fraud. 

The moving party argued that these records were not subject to solicitor-client privilege and that they were relevant to the enforcement of a Mareva order. They argued that even if the records were otherwise privileged, the “crime/fraud” exception to solicitor-client privilege applied.

Our lawyers successfully argued that the trust ledgers were privileged because their disclosure would reveal confidential communications between the lawyer and their client, and that the moving party had not rebutted the presumption of privilege. On the “crime/fraud” exception, AGB convinced the court that binding authority held that the exception did not apply to civil wrongs. Justice Cavanagh agreed, concluding that “under the principles of horizontal stare decisis as set out in Sullivan, I am bound by the decision in Wintercorn. I conclude that the exception to solicitor-client privilege does not apply on this motion because the plaintiffs’ claim is based in civil fraud.”

Justice Cavanagh's full reasons can be viewed here