Ontario Solicitor-Client Privilege: What Is Protected, Waiver, and the Crime-Fraud Exception

Solicitor-Client Privilege: The Three-Part Test

Solicitor-client privilege (also called legal advice privilege) protects confidential communications between lawyer and client made for the purpose of seeking or giving legal advice. The Supreme Court of Canada in Solosky v Canada [1980] 1 SCR 821 articulated the three-part test:

1. A communication between a solicitor and a client
2. Which entails the seeking or giving of legal advice (not merely business advice or administrative information)
3. Which is intended to be confidential

The Supreme Court in Descôteaux v Mierzwinski [1982] 1 SCR 860 confirmed that the privilege protects not just communications in litigation but any communication made for the purpose of obtaining legal advice from a lawyer.

In Lavallee, Rackel & Heintz v Canada (AG) [2002] 3 SCR 209, the Court reaffirmed that solicitor-client privilege "must be as close to absolute as possible" to maintain public confidence in the administration of justice.

What Is (and Is Not) Protected

Protected Communications

• Letters, emails, and memoranda from lawyer to client conveying legal advice
• Client communications to lawyer seeking legal advice
• Lawyer's internal notes and memoranda reflecting legal advice given to the client
• Communications through agents of the lawyer (students, law clerks) in the course of obtaining or conveying legal advice
• Documents prepared by the client at the lawyer's direction to enable the lawyer to provide legal advice

Not Protected

• Business advice (e.g., whether to accept a deal from a commercial perspective — distinct from the legal advice on the deal)
• Accounting, tax preparation, or other non-legal professional services rendered by a lawyer
• Pre-existing documents handed to a lawyer that were created for other purposes (though some may be protected by litigation privilege)
• The fact of the existence of a retainer (typically not privileged — though the content of the retainer is)
• The client's identity (generally not privileged, with narrow exceptions where disclosure would effectively reveal privileged communications)

Litigation Privilege

Litigation privilege (work product doctrine) is a distinct but related privilege that protects:

• Documents and communications prepared for the dominant purpose of anticipated or existing litigation
• Communications with third parties (experts, witnesses, private investigators) created for litigation purposes

The dominant purpose test requires that litigation preparation be the primary (dominant) purpose for creating the document. If documents were created for both litigation and business purposes, and neither clearly dominates, the privilege may not attach.

Unlike solicitor-client privilege, litigation privilege has a temporal limit — it ends when the litigation concludes. In Blank v Canada (Minister of Justice) [2006] 2 SCR 319, the Supreme Court confirmed that litigation privilege is premised on the adversarial litigation process and does not protect documents against use in collateral proceedings after the original litigation concludes.

Waiver of Privilege

Express Waiver

The client expressly discloses privileged communications to a third party — waiving privilege as against all parties. The decision to waive must be voluntary and informed. Only the client (not the lawyer) can waive solicitor-client privilege.

Implied Waiver

Implied waiver occurs when a party's conduct is inconsistent with maintaining privilege. The most common situations:

• Advice at issue: a defendant relies on legal advice as a defence (e.g., good faith reliance on legal advice as a defence to a regulatory charge) — this puts the content of the advice at issue and implicitly waives privilege over relevant communications
• Solicitor-client litigation: a client sues their lawyer for negligence — waiving privilege over communications relevant to the alleged negligence
• Fairness-based waiver: partial disclosure may waive privilege over related portions of the communication where it would be unfair to allow selective disclosure

Inadvertent Disclosure

Ontario courts have held that inadvertent disclosure in discovery does not automatically waive privilege. The court considers: the reasonableness of precautions taken, the volume of material reviewed, the time constraints, the scope of discovery, the extent of disclosure, and the promptness of the steps taken to rectify the error. Counsel who receive an inadvertently disclosed privileged document have obligations under the Rules of Professional Conduct.

The Crime-Fraud Exception

Communications made in furtherance of a crime or fraud are not protected by solicitor-client privilege. The crime-fraud exception confirmed in Descôteaux requires:

1. Prima facie evidence that the advice was sought to enable the commission of a crime or fraud (a threshold of some evidence — not proof beyond a reasonable doubt)
2. The communication was made for that purpose (not that the client simply informed the lawyer of a past crime)

The lawyer need not know that the purpose is criminal or fraudulent — the exception applies even where the lawyer is acting innocently. This creates practical challenges: a lawyer who assists in what turns out to be fraud without knowledge may find that the client's communications were never privileged.

Common Interest Doctrine

The common interest doctrine allows privileged communications to be shared among parties with a common legal interest without waiving privilege as against third parties. Applications include:

• Co-defendants sharing a joint defence strategy — communications between co-defendants and their respective counsel pursuant to a joint defence agreement
• Affiliated corporations — communications shared within a corporate group may be protected where the parties share a common legal interest
• Transaction parties — legal advice shared between purchaser and vendor in certain circumstances (though this is contested)

The doctrine requires a common legal interest — a shared commercial interest is insufficient. A formal common interest or joint defence agreement is advisable to document the arrangement.

Privilege Claims in Discovery

In Ontario civil litigation, a party claiming privilege over a document must list it in their affidavit of documents (Rule 30.03) in a "Schedule B" and describe the general nature of the privilege claimed. The receiving party may challenge a privilege claim by:

• Moving for an order compelling production on the basis that the document is not privileged
• Requesting the court conduct an in camera review of the documents to determine whether the privilege claim is sustainable

Courts take privilege claims seriously and are reluctant to pierce privilege absent strong justification. The burden is on the party seeking disclosure to rebut the privilege claim.

Privilege in Regulatory and Administrative Proceedings

Solicitor-client privilege applies in regulatory and administrative proceedings as well as civil litigation. Government agencies, regulatory investigators, and tribunals with broad powers to compel production of documents cannot override solicitor-client privilege without an explicit statutory provision — and such provisions are constitutionally suspect.

The Supreme Court in Canada (Privacy Commissioner) v Blood Tribe Department of Health [2008] 2 SCR 574 confirmed that the Privacy Commissioner cannot compel disclosure of privileged documents under PIPEDA without explicit statutory authority — the usual canons of statutory construction do not permit such an inference.

How Atticus Helps Ontario Lawyers Manage Privilege

Atticus AI processes documents uploaded to client matters — analyzing, summarizing, and making them searchable. Ontario lawyers using Atticus benefit from:

• Secure Canadian hosting — all documents stored on Canadian servers with encryption in transit and at rest; data never used to train AI models
• Client-scoped access — documents organized by matter; AI chat scoped to specific client matters or practice-wide as needed
• LSO AI guidance compliance — designed in accordance with Law Society of Ontario guidance on using AI with confidential client information
• Conflict checking — AI-assisted conflict searches to prevent retaining clients where conflicts may compromise privilege (e.g., former client situations)