Case Report – “Crime and fraud” exception to solicitor-client privilege broadly framed

17 Sep

In March 2007, the Ontario Superior Court of Justice held that the “crime and fraud” exception to solicitor-client privilege applies to communications made in furtherance of perpetrating all forms of tortious conduct that may become the subject of a civil proceeding. As noted by Mr. Justice Perell, this finding may be “contentious” because it establishes an arguably broader exception than endorsed in two of the Court’s earlier decisions: see Rocking Chair Plaza (Bramalea) Ltd. v. Brampton (City) (1988), 29 C.P.C. (2d) 82 (Ont. H.C.J.) and Hallstone Products Ltd. v. Canada (Customs and Revenue Agency), [2004] O.J. No. 496 (S.C.J.). His honour distinguished the case at bar on the facts, which involved an e-mail sent to counsel during the time frame that intentional infliction of mental suffering was alleged (i.e., pre-litigation) and that he held to be prima facie evidence of the same.

Dublin v. Montessory Jewish Day School of Toronto (2007), 85 O.R. (3d) 511 (Ont. S.C.J.)
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