When Solicitor-Client Privilege Can Be Disregarded: The Crime-Fraud Exception
Solicitor-client privilege is the right to confidentiality over communications made within a lawyer-client relationship. It protects communications between a lawyer and their client from being disclosed in the process of litigation. It is seen as a bedrock of the Canadian legal system and a fundamental civil and legal right of the client. However, there are certain narrow circumstances where solicitor-client privilege can be disregarded. Recently, the Ontario Court of Appeal in Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586 reviewed the law around the crime-fraud exception to solicitor-client privilege.[i]
What is the Crime Fraud Exception
Because of the significance of solicitor-client privilege, the courts have established that exceptions to it should only apply in the narrowest of circumstances. One such circumstance is the crime-fraud exception, which states that no solicitor-client privilege applies if the communication is “intended to further criminal purposes.”[ii] In other words, if a client seeks legal advice for the purpose of facilitating a crime, that communication is not protected.
In Sakab v Al Jabri, the appellant sought to clarify this exception. The appellant wanted the respondent to disclose their records of paid legal fees. According to established law, records of legal fees are presumed to be protected, and no party can be forced to disclose them, unless an exception exists.[iii] The appellant asked the court to clarify whether the crime-fraud exception applied in this case.
Particularly, the court was asked to determine whether the crime-fraud exception only applies to cases of criminal fraud, or whether it also extended to instances of civil fraud.[iv] The difference between the two is that civil fraud occurs between two private individuals, whereas criminal fraud involves a charge brought by the government. In practice, the standard required for a judge to find criminal fraud is much higher than that for civil fraud. If the exception only applied in cases of criminal fraud, then people engaging in civil fraud through their lawyers would be able to hide behind the shield of solicitor-client privilege and continue defrauding others.
The Decision of the Court
The lower court decided in Sakab v Al Jabri that the crime-fraud exception only applied in cases of criminal fraud, and that thus, it did not apply in this case.[v] However, the Ontario Court of Appeal determined that the crime-fraud exception is not limited to criminal fraud, and applies to civil fraud.[vi] The court found that while previous cases specifically mentioned criminal fraud, none of them prohibited the exception from applying to civil fraud.[vii]
Ultimately, the court determined that the appellants had not shown that the crime-fraud exception should apply in this case to disregard the protection of privilege around the respondent’s lawyer-client communication. They held that the appellants did not provide sufficient details to determine exactly which records and which law firms they wanted disclosure of.[viii]
However, the court updated the law and determined that the crime-fraud exception can apply to both those engaged in criminal and civil fraud.[ix] This opens up the number of circumstances in which a person may be forced to disclose their communications with their legal counsel.
Main Takeaways
- If you are in the midst of litigation and you believe that the opposing party is using their lawyer to commit civil fraud, you may be able to force them to disclose their communications with their lawyers.
- You no longer have to prove that the opposing party is engaged in criminal fraud; you now have a much easier case to meet.
- But note, you still have to be able to provide thorough details of which specific communication you want disclosure of; blanket statements requesting disclosure will not suffice.
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[i] Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586 (CanLII) [“Sakab v. Al Jabri”] at para 1.
[ii] Sakab v. Al Jabri at para 37.
[iii] Sakab v. Al Jabri at para 64.
[iv] Sakab v. Al Jabri at para 42.
[v] Sakab v. Al Jabri at para 31.
[vi] Sakab v. Al Jabri at para 85.
[vii] Ibid.
[viii] Sakab v. Al Jabri at para 100.
[ix] Ibid.