It is well-established that solicitor-client privilege will be lost where the communication between lawyer and client is in furtherance of a crime. In Dublin v. Montessori Jewish Day School of Toronto, Mr. Justice Paul Perell ruled that the same result follows where the communication is in furtherance of at least certain types of tort.
In this case, an email communication from one of the defendants to their lawyer was inadvertently disclosed to counsel for the plaintiffs. Before the Master, the defendants sought the return of the email, on the basis that it was privileged and had been produced by mistake. The Master granted the motion. The plaintiffs appealed to Justice Perell, who allowed the appeal. He held that the document was not privileged and ordered its production.
His Honour read the email. He concluded that it could be interpreted as evidence that the defendants intended to inflict emotional harm on the plaintiff and his family. Accordingly, it was not privileged.
Perell J. reviewed, in detail, the jurisprudence that has established that a communication is not privileged if it is in furtherance of unlawful conduct. Most previous Ontario cases had confined this rule to criminal conduct. However, His Honour cited some decisions that had applied it to certain types of torts as well. Justice Perell held that there was no reason not to extend it to “communications perpetrating tortuous [sic, should read “tortious”] conduct that may become the subject of civil proceedings”. However, he stopped short of applying the principle to all torts. It appears though, that he would apply it to cases involving the torts of fraud, breach of trust and intentional torts.
Finally, Perell J. made it clear that solicitor-client privilege will not be set aside lightly. A party seeking to invoke the “communication in furtherance of an unlawful act” exception will have to put forward “convincing evidence of the illegal purpose”.