When a client communicates with legal counsel, he or she expects and relies upon the confidential nature of those communications. A client's ability to speak frankly and honestly with his or her legal counsel, without fear of self-incrimination, for the purpose of obtaining professional legal advice, forms the very foundation of our solicitor-client relationship and is a critical factor in ensuring access to justice. The court protects these communications from disclosure under the rubric of solicitor-client privilege, if the communications meet three criteria. The communications must be: (1) between a client and his or her legal counsel, who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.

There are, however, several strictly delineated exceptions to the protection afforded by solicitor-client privilege. Communications made in furtherance of unlawful conduct, for example, are not protected by solicitor-client privilege and must therefore be disclosed by legal counsel. The courts have typically defined unlawful conduct as meaning crimes or acts of fraud. The question, however, is whether this definition of unlawful conduct can be extended to include tortious conduct.

In what The Honourable Justice Perell himself admitted was a contentious conclusion, the court in Dublin v. Montessori Jewish Day School of Toronto has recently concluded that solicitor-client communications that may have been in furtherance of tortious conduct are not protected by solicitor-client privilege (emphasis our own).

In Dublin, the plaintiff, Dr. Max Dublin, enrolled his son, the plaintiff Ephraim Dublin, in the defendant Montessori Jewish Day School of Toronto. (Dr. Dublin also worked at the school.) Ephraim suffered from a medical problem that produced occasional incidents of incontinence. The plaintiffs alleged that the defendants' actions led to the mistreatment, public ridicule, embarrassment and illegal suspension of Ephraim, in breach of contract, in breach of trust and confidence and was the result of either intentional or negligent infliction of emotional harm. The plaintiffs further alleged that Dr. Dublin was wrongfully dismissed by the defendant school in breach of the same duties and that these actions were undertaken with malice, dishonesty and subterfuge.

On October 26, 2003, Ms. Nashman, the chair of the corporate defendant's board of directors, e-mailed her legal counsel. This e-mail was inadvertently disclosed to the plaintiffs during the course of liti­gation. When the plaintiffs refused to return their copy of the e-mail, the defendants brought a motion for its return. The main issue to be decided was whether or not this communication was in furtherance of unlawful conduct and therefore not protected by solicitor-client privilege.

At the outset of his decision, Justice Perell explained that the e-mail in this case was an exception to solicitor-client privilege "because it was arguably in furtherance of unlawful conduct." Unfortunately, there is no detail in the case as to what was stated in the e-mail. In his reasons, Justice Perell reviewed several authorities in order to support an expanded definition of unlawful conduct. For example, he referred to Goldman, Sachs & Co. v. Sessions and Northwest Mettech Corp. v. Metcon Services Ltd. for the proposition that crimes and acts of fraud were but two examples of intentional unlawful conduct that were not protected by solicitor-client privilege. Other types included abuse of process, breaches of regulatory statutes, breaches of contract and torts and other breaches of duty.

According to Justice Perell, the implication from this line of authorities was that the definition of unlawful conduct could be expanded to include torts, if the client knew or should have known that the communications in question were with respect to the conduct of a tort (emphasis our own). As cited with approval by the Supreme Court of Canada in R. v. Shirose: "The knowledge requirement minimizes the effect of the exception on proper communications…."

This begs the question: What constitutes sufficient evidence of an illegal purpose? Justice Perell stated that a mere assertion of illegal purpose was insufficient and appeared to accept that a prima facie case was necessary to vitiate solicitor-client privilege. In applying this requirement to the facts in Dublin, however, Justice Perell concluded that sufficient evidence was present to find that the e-mail might show that the defendants intended to inflict emotional harm on the plaintiffs (emphasis our own). In fact, Justice Perell emphasized that the illegal purpose remained to be proven. This was found to be sufficient evidence upon which to vitiate solicitor-client privilege.

The decision in Dublin has left clients and their legal counsel in a troubling position. Is it likely that in all cases involving a tort (e.g. mis­representation) any communications with counsel pertaining to that tort will be characterized as being "in further­ance of tortious conduct" and therefore will no longer be afforded the protection of solicitor-client privi­lege? Need these communications only show the possibility of illegal purpose to require disclosure? Are all intentional torts deemed to be unlawful conduct and therefore an exception to solicitor-client privilege? These uncertainties, if left unanswered, risk undermining the frank and honest lines of communication that form the basis of the solicitor-client relation­ship and which enable persons needing legal advice to seek it out without fear of self-incrimination.

Since the release of Justice Perell's decision, permission to appeal has been granted. In fact, in a brief endorsement, The Honourable Justice Carnwath has brought into question Justice Perell's decision, stating that: "there is good reason to doubt the correctness of Perrell J.'s decision. Given the sanctity of solicitor-client privilege, the expansion of the exception for furtherance of crime to tortious acts of the kind alleged in this Statement of Claim, may go too far."

Litigators, and parties involved in litigation, will be anxiously awaiting the outcome of the appeal.