COURT OF APPEAL FOR ONTARIO

CITATION: Sakab Saudi Holding Company v. Al Jabri, 2026 ONCA 586

DATE: 20260819

DOCKET: COA-25-CV-0549

Miller, Zarnett and Madsen JJ.A.

BETWEEN

Sakab Saudi Holding Company, Alpha Star Aviation Services Company, Enma Al Ared Real Estate Investment and Development Company, Kafa'at Business Solutions Company, Security Control Company, Armour Security Industrial Manufacturing Company, Saudi Technology & Security Comprehensive Control Company, Technology Control Company, and New Dawn Contracting Company and Sky Prime Investment Company

Plaintiffs (Appellants)

and

Saad Khalid S Al Jabri*, Dreams International Advisory Services Ltd., 1147848 B.C. Ltd., New East (US) Inc., New East 804 805 LLC, New East Back Bay LLC, New East DC LLC, Jaalik Contracting Ltd., Nadyah Sulaiman A Al Jabbari, personally and as litigation guardian for Sulaiman Saad Khalid Al Jabri, Khalid Saad Khalid Al Jabri, Mohammed Saad KH Al Jabri*, Naif Saad Kh Al Jabri, Hissah Saad Kh Al Jabri, Saleh Saad Khalid Al Jabri, Canadian Growth Investments Limited, Gryphon Secure Inc., Infosec Global Inc., QFive Global Investment Inc., Golden Valley Management Ltd, New South East Pte Ltd., Ten Leaves Management Ltd., 2767143 Ontario Inc., Nagy Moustafa, HSBC Trustee (C.I.) Limited, in its capacity as Trustee Of The Black Stallion Trust, HSBC Private Banking Nominee 3 (Jersey) Limited, in its capacity as a Nominee Shareholder of Black Stallion Investments Limited, Black Stallion Investments Limited, New East Family Foundation, New East International Limited, New South East Establishment, Ncom Inc. and 2701644 Ontario Inc.

Defendants (Respondents*)

Munaf Mohamed, K.C., Jonathan G. Bell and Douglas A. Fenton, for the appellants

John J. Adair and Robert Trenker, for the respondent Saad Khalid S. Al Jabri

Jeffrey Larry, Hailey Bruckner and Greta Hoaken, for the respondent Mohammed Saad KH Al Jabri

Heard: September 3, 2025

On appeal from the judgment of the Divisional Court (Justices Harriet E. Sachs, Wendy M. Matheson and David Jarvis) dated January 10, 2025, with reasons reported at 2025 ONSC 35, allowing an appeal in part from the order of Justice Peter J. Cavanagh of the Superior Court of Justice, dated March 18, 2024, with reasons reported at 2024 ONSC 1601.

Zarnett J.A.:

I. Overview

[1] Solicitor-client privilege — the right to confidentiality over communications made within a lawyer-client relationship — is fundamental to the justice system in Canada. The privilege is construed broadly. In some circumstances, even seemingly neutral information is rebuttably presumed to be privileged because of what could be deduced from it. On the other hand, exceptions to the privilege are interpreted narrowly. One “extremely limited”[1] exception – the crime-fraud exception – exists because certain communications form no part of the proper professional role of a lawyer. To cloak them with confidentiality would undermine the administration of justice, the very reason the privilege exists.

[2] The appellants are the plaintiffs in a multi-billion-dollar civil fraud action. The respondents, two of the defendants in the action, are bound by Mareva orders restricting them from dealing with their assets while the action is pending. Under those orders, the respondents made certain disclosures of assets held by them or by others on their behalf. But, relying on solicitor-client privilege, the respondents resisted the appellants’ broad request for production of trust ledgers of any law firms with whom the respondents allegedly dealt before and after the Mareva orders, and redacted certain entries on their own bank statements before producing them.

[3] The courts below largely upheld the respondents’ privilege claim. Both the motion judge and the Divisional Court held the trust ledgers were presumptively privileged and the presumption was not rebutted. Interpreting the Supreme Court of Canada’s jurisprudence as holding that the crime-fraud exception applies only to criminal communications – “criminal in themselves or intended to further criminal purposes” – both courts rejected the appellants’ assertion that the exception could apply in an action for civil fraud or in a claim that breach of the Mareva orders may have occurred. The Divisional Court went on to hold that even if the exception could apply in such a case, a precondition to its application—a prima facie case—was not established. With respect to the bank statements, although the motion judge held they were also presumptively privileged, the Divisional Court disagreed, holding that the presumption did not apply, and remitted the question of whether the respondents could establish a claim for privilege over the redacted entries back to the motion judge.

[4] The appellants argue that the Divisional Court erred in three principal respects.

[5] First, although they acknowledge that accounting records of a law firm are presumptively privileged because they may reveal the nature of communications and advice, the appellants argue that this applies only where the records have been seized, not in the context of a contested civil motion. They further submit that if the presumption applied in this context, it is rebutted where a law firm was retained for a “non-legal” transaction – simply to receive and disburse money as a conduit.

[6] Second, the appellants argue that the crime-fraud exception to solicitor-client privilege applied to the trust ledgers they requested. They submit that the courts below erred in viewing the exception as inapplicable to civil fraud or breach of a court order. And, relying in part on fresh evidence they seek to have admitted on this appeal, they submit that the Divisional Court erred in finding that the prima facie case precondition to the exception had not been satisfied.

[7] Third, the appellants submit that the Divisional Court did not go far enough in correcting the motion judge concerning the bank statements. According to the appellants, entries on a bank statement of a client, even if they show payments to a lawyer, cannot be privileged.

[8] For the reasons that follow, I would dismiss the motion to admit fresh evidence and dismiss the appeal.

[9] The trust ledgers requested are presumptively privileged. The presumption is applicable regardless of the procedural context in which the records are sought. The presumption arises because a trust ledger is an accounting record of a lawyer reflecting dealings with a client from which privileged communications might be deduced. The nature of the retainer, and how that affects whether a trust ledger actually discloses such communications, are matters relevant to whether the presumption is rebutted. I agree with the courts below that the presumption in this case was not rebutted by the mere allegation, without evidentiary support, that the law firms whose records were requested were being used for “non-legal” transactions (i.e., as conduits only).

[10] I agree with the courts below that binding Supreme Court of Canada jurisprudence holds that the nature of the crime-fraud exception is extremely limited in nature and removes, from the ambit of privilege, any communication between a client and lawyer that is criminal in itself or is intended to further criminal purposes. But I disagree with the courts below to the extent that they held that the exception could not be applied in a civil action for fraud or where breach of a court order is or may be alleged. The exception focuses on the nature and purpose of the communication, not the nature of the legal proceeding ultimately brought. Fraud has a very broad meaning in criminal law. Where a communication is intended to further a fraud within that broad meaning, the communication is not privileged no matter the type of proceeding, civil or criminal, in which disclosure of the communication is later sought. And contempt, even in a civil context, is “quasi-criminal”. A communication intended by a client to use the lawyer-client relationship to facilitate contemptuous disregard of a court order is not privileged.

[11] However, the crime-fraud exception is subject to strict preconditions, including that the party seeking to apply it must demonstrate, on a prima facie basis, that communications took place that had the character that takes them within the exception. The Divisional Court conducted an alternative analysis and concluded that even if communications intended to facilitate civil fraud or breach of a court order were sufficient to attract the exception, the appellants had not made out a prima facie case for either. I see no reversible error in that conclusion. Nor is that conclusion affected by the proposed fresh evidence.

[12] Finally, there was no error in the Divisional Court remitting the respondents’ privilege claim over entries in their bank statements to the motion judge, having correctly held that the onus was on the respondents to establish that claim.

II. Background and Factual Context

The Action

[13] In 2021, the appellants – private corporations established and funded to pursue counterterrorism activities in the Kingdom of Saudi Arabia – commenced civil proceedings in the Superior Court of Justice alleging that they were the victims of a massive international fraud committed between 2008 and 2017. According to the appellants, the fraud was orchestrated by the respondent Saad Khalid Al Jabri (“Al Jabri”), a former high-ranking Saudi Arabian government official. They allege that Al Jabri abused his authority in order to siphon vast sums from them into his pockets or those of the other defendants in the action, including his son, the respondent Mohammed Saad KH Al Jabri (“Mohammed”).

[14] The respondents deny the allegations against them. They allege that Al Jabri established the appellant corporations at the direction of former Saudi Minister of the Interior, and later, Crown Prince, Mohammed bin Nayef, to serve in the Kingdom of Saudi Arabia’s counterterrorism program. The respondents contend that any funds Al Jabri accessed from the appellants were taken legitimately for state-sanctioned counterterrorism activities, and that Al Jabri later became a casualty of domestic political changes in the Kingdom of Saudi Arabia. The respondents allege that the appellants were taken over by Al Jabri’s political opponents and have chosen to pursue him for political purposes.

[15] The action has not been tried. Matters are complicated by assertions of state secrecy by various governments.

The Mareva Orders

[16] On January 22, 2021, Gilmore J. granted the appellants’ ex parte motion for a Mareva injunction against Al Jabri. She found that on the record before her, the appellants had demonstrated a strong prima facie case of fraud and a risk of continued dissipation of assets. The Mareva order that she granted restrains Al Jabri from dealing with any assets in his name or in which he has any type of interest, and from instructing or encouraging any other person to do so. The order applies to “any asset which [Al Jabri] has the power, directly or indirectly, to dispose of or deal with as if it were his own” including “if a third party holds or controls the assets in accordance with his direct or indirect instructions”. The order required Al Jabri, within ten days, to provide a sworn statement detailing his assets worldwide, whether in his name or not. It also required banks listed in the order to freeze assets of Al Jabri and disclose all records of Al Jabri’s assets. It requires that Al Jabri apply to the court for authorization to access assets to pay ordinary living and legal expenses.

[17] Also on January 22, 2021, Gilmore J. granted an ex parte Norwich order (the “Norwich Order”), requiring certain foreign and Canadian banks and financial institutions to produce documents to the appellants, including bank records pertaining to the respondents.[2]

[18] A subsequent motion to set aside the Mareva order against Al Jabri was denied on March 11, 2021.

[19] Al Jabri produced asset declarations pursuant to the Mareva order, on which he was cross-examined. He testified that he had gifted substantially all his worldwide assets to his son Mohammed in 2017. The appellants dispute the validity of that gift.

[20] On August 9, 2021, Koehnen J. granted the appellants’ motion to restrain Mohammed from dealing with any of his assets. Justice Koehnen found the appellants had demonstrated a strong prima facie case that there was no valid transfer of assets from Al Jabri to Mohammed, and thus the appellants had a strong prima facie case against Mohammed for constructive trust, a tracing remedy, knowing assistance or receipt, conversion, unjust enrichment, and under the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29. A separate order was issued as against Mohammed with terms similar to those in the Mareva order against Al Jabri. I refer to the two orders as the “Mareva Orders”.

[21] Mohammed produced an asset declaration pursuant to the Mareva order against him on August 19, 2021. He was cross-examined on his declaration.

[22] In October 2023, the appellants argued a contempt motion against Al Jabri and Mohammed, alleging breaches of the Mareva Orders, including that, without authorization, the respondents paid expenses (in particular, living and legal expenses) by accessing frozen funds. On March 5, 2024, Cavanagh J. dismissed the contempt motion finding the appellants failed to establish that frozen assets were being used to fund the respondents’ expenses, contrary to the Mareva Orders.

The Disputed Production Requests

[23] Through enforcement of the Norwich Order, the appellants obtained unredacted copies of the respondents’ Canadian bank statements. However, the foreign bank statements eventually produced by the respondents were redacted to delete references to transactions with law firms.

[24] On August 22, 2023, the appellants brought a motion which, in relevant part, sought an order requiring the respondents to produce two categories of information:

(i) Trust ledgers – trust ledgers “from any law firm” representing Al Jabri or Mohammed worldwide, disclosing all funds received and sent from June 2017 to present day, for legal and non-legal purposes, and all funds currently held in trust on the respondents’ behalf, directly or indirectly, including funds sent by others to be applied to Al Jabri’s or Mohammed’s benefit, with respect to the following “specified information”: (i) the quantum of the funds in aggregate and/or for each transaction; (ii) the date received and/or sent; and (iii) the identity of the sender or recipient of the funds, including the name of any institutions involved, and any account numbers from or to which funds were sent.

(ii) Unredacted bank statements – unredacted copies of foreign bank statements (which were previously produced with redactions).[3]

[25] The appellants’ stated purpose in seeking the records is to trace the movement of funds: (i) in the period before the Mareva Orders (alleged to be relevant to the claims in the action), and (ii) in the period after the Mareva Orders (alleged also to be relevant to whether the Mareva Orders are being complied with).

III. Decisions Below

[26] The motion judge dismissed the appellants’ motion. Relying on Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336, he held that a law firm’s administrative records are presumptively privileged and that the test for rebutting the presumption outlined in Kaiser (Re), 2012 ONCA 838, 113 O.R. (3d) 308 had not been met. He further held that the unredacted bank statements were properly the subject of a privilege claim because information about lawyers’ bill payments is privileged and no waiver had occurred. Finally, he held that the crime-fraud exception to solicitor-client privilege does not apply to civil fraud.

[27] The Divisional Court largely upheld the decision of the motion judge but allowed one aspect of the appellants’ appeal.

[28] In the Divisional Court’s view, the motion judge correctly concluded that law firm administrative records, including trust ledgers, are presumptively privileged, and that the test for rebutting the presumption outlined in Kaiser had not been met. It rejected the argument that the presumption of privilege does not apply to transactions the appellants alleged were for non-legal purposes, holding that Chambre des notaires extended the presumption of privilege to all law firm administrative records.

[29] The Divisional Court also rejected the appellants’ argument that they had rebutted the presumption of privilege. Even if the information sought was “highly relevant” to the appellants’ civil fraud claims, relevance and good faith are not factors in the Kaiser test. Solicitor-client privilege may shield relevant information from disclosure, and its protection still applies to “allegedly bad people”. The Divisional Court emphasized that the Kaiser test required the appellants to demonstrate that there is “no reasonable possibility” that disclosure of the trust ledger information would lead, directly or indirectly, to the disclosure of confidential solicitor-client information. This was a question of mixed fact and law on which, in the Divisional Court’s view, the motion judge made no palpable and overriding error or extricable error in principle.

[30] However, the Divisional Court held that the motion judge erred in applying the presumption of privilege to the respondents’ bank statements, as the presumption only applied to lawyers’ records. The onus was on the respondents to establish that solicitor-client privilege applied to entries in their own bank statements. That issue was remitted to the motion judge for redetermination.

[31] The Divisional Court upheld the conclusion that the crime-fraud exception did not apply. It interpreted the jurisprudence of the Supreme Court of Canada to limit the application of the exception to communications that are criminal in themselves or intended to further a criminal purpose. A claim for civil fraud or breach of a court order, such as the Mareva Orders, were insufficient.

[32] Finally, even if the crime-fraud exception did apply to a claim of civil fraud or breach of a court order, the appellants did not, according to the Divisional Court, satisfy the test for that exception, as they did not show a prima facie case of communications in furtherance of a civil fraud or breach of court order sufficient to negate solicitor-client privilege over the broad and unparticularized swath of records they had requested.

IV. Issues and The Standard of Review

[33] The appeal requires the following issues to be decided:

(1) Is the appeal moot because some of the information has been obtained by the appellants through other disclosures in the litigation?

(2) Did the Divisional Court err in treating lawyers’ trust ledgers as presumptively privileged, in finding the presumption was not rebutted, and in finding that the crime-fraud exception did not apply?

(3) Did the Divisional Court err in remitting the privilege claim regarding unredacted bank statements to the motion judge, rather than deciding that no privilege could apply at all?

[34] The scope of solicitor-client privilege, the circumstances under which documents are presumptively privileged, and the scope of and preconditions to an exception to privilege are questions of law reviewable on a correctness standard. Whether the presumption is rebutted or an exception is applicable in a particular case are questions of mixed fact and law reviewable on a correctness standard if there is an extricable error of law, and otherwise only in the case of a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 36.

V. Analysis

1. The Appeal is Not Moot

[35] The respondents point to the fact that, pursuant to a consent order dated March 31, 2025 (the “Consent Order”), they produced to the appellants unredacted versions of the foreign bank statements and certain particulars of funds being held by law firms. They suggest that the appeal is moot, either in whole or in part, as a result.

[36] I reject this argument. The disclosure under the Consent Order did not resolve the privilege issues that are the subject of this appeal. The parties simply kicked that can down the road. The Consent Order states that “the disclosure provided under this Order shall not constitute a waiver of any claim of privilege” and “the [appellants] do not accept that [the respondents] have asserted valid claims of privilege over information regarding the funding of legal fees” and “reserve all rights to challenge any assertion of privilege made by the Defendants [including the respondents] in these proceedings, including any appeals.”

2. The Divisional Court Did Not Err in the Result It Reached on the Privilege Issues Concerning the Trust Ledgers

Solicitor-Client Privilege

[37] “Solicitor-client privilege is designed to facilitate the administration of justice by encouraging clients to speak freely to their lawyers, so that lawyers can advise clients to the best of their abilities”: R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157, at para. 24 (citation omitted). Giving effect to the privilege thus involves more than the application of a rule of evidence. Solicitor-client privilege is a “substantive rule of law” that is “fundamentally important to [the] judicial system” in Canada, “essential to the effective operation of the legal system”, and a “fundamental civil and legal right” of the client: R. v. McClure, 2001 SCC 14, 1 S.C.R. 445, at paras. 21, 31, citing R. v. Gruenke, 1991 CanLII 40 (SCC), [1991] 3 S.C.R. 263, at p. 289; Smith v. Jones, 1999 CanLII 674 (SCC), [1999] 1 S.C.R. 455,at para. 45; Solosky v. The Queen, 1979 CanLII 9 (SCC), [1980] 1 S.C.R. 821, at pp. 823, 839; Descôteaux et al. v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860, at pp. 870, 875; Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), [1991] 2 S.C.R. 353, at p. 383.

[38] Except where it has been waived by the client or where an exception applies, solicitor-client privilege permanently protects from disclosure any oral or written communication within the lawyer-client relationship if: (i) the client sought to obtain legal advice of any kind from the lawyer; (ii) the communication related to that purpose; and (iii) the communication was made in confidence: Solosky, at p. 835, citing John T. McNaughton, Wigmore on Evidence, vol. 8(Boston: Little, Brown and Company, 1961), §2292 at p. 554;McClure, at para. 36.

[39] The privilege is not limited to legal opinions or direct requests for them, nor does it arise only upon the lawyer being formally retained. It applies to “all communications made with a view to obtaining legal advice”, including those that “deal with matters of an administrative nature such as financial means or with the actual nature of the legal problem”: Descôteaux, at pp. 892-93.

[40] The relevance of the communications to issues in a proceeding does not overcome the privilege. The client’s right to refuse disclosure of any communication to which the privilege applies exists even when the communication is “both relevant and of substantial probative value”: Smith,at para. 51; McClure, at para. 34.

[41] In light of the important interests it furthers, the privilege must be “as close to absolute as possible” and “should not be interfered with unless absolutely necessary”: Chambre des notaires, at paras. 28, 38; McClure, at para. 35; Blood Tribe, at para. 10; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 309, at paras. 36-37; Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, [2006] 2 S.C.R. 32, at paras. 15-16; S.E.C. v. M.P., 2023 ONCA 821, at para. 89, citing Descôteaux, at p. 875, leave to appeal refused, [2024] S.C.C.A. No. 39. The privilege “will only yield in certain clearly defined circumstances, and does not involve a balancing of interests on a case-by-case basis”: McClure, at para. 35. The scope of the privilege will be interpreted as broadly, and the scope of any exceptions or exclusions, as narrowly as possible to ensure that the privilege itself remains robust: Blood Tribe, at paras. 10-11; McClure, at para. 35; Descôteaux,at p. 875.

The Presumption of Privilege Over a Lawyer’s Records

[42] The law recognizes that to effectively protect privilege, it is sometimes necessary to presume that certain types of documentation contain privileged information, rather than imposing the obligation on the party claiming privilege to establish that they do. In Maranda v. Richer, 2003 SCC 67, [2003] S.C.R. 193and Chambre des notaires, the Supreme Court established that lawyers’ administrative records, including accounting records, are subject to a rebuttable presumption of solicitor-client privilege because such records may contain information which, though neutral on its face, could be used to deduce privileged information.

[43] In Maranda, the client was suspected of money laundering and drug trafficking, and police obtained a warrant to search his lawyer’s offices for records of the amount of fees and disbursements billed by the lawyer to the client. Though this information did not fall within the traditional rubric of solicitor-client communications, “[t]he documents and information sought, in particular concerning [the lawyer’s] disbursement accounts, might enable an intelligent investigator” to divine considerable confidential information: Maranda, at para. 24.

[44] The Supreme Court held, at para. 33, that there is a presumption of solicitor-client privilege over certain kinds of apparently neutral administrative information kept by a lawyer:

In law, when authorization is sought for a search of a lawyer’s office, the fact consisting of the amount of the fees must be regarded, in itself, as information that is, as a general rule, protected by solicitor-client privilege. While that presumption does not create a new category of privileged information, it will provide necessary guidance concerning the methods by which effect is given to solicitor-client privilege, which, it will be recalled, is a class privilege. Because of the difficulties inherent in determining the extent to which the information contained in lawyers’ bills of account is neutral information, and the importance of the constitutional values that disclosing it would endanger, recognizing a presumption that such information falls prima facie within the privileged category will better ensure that the objectives of this time‑honoured privilege are achieved. That presumption is also more consistent with the aim of keeping impairments of solicitor-client privilege to a minimum …. [Emphasis added.]

[45] In Chambre des notaires, the Supreme Court struck down, as contrary to the Canadian Charter of Rights and Freedoms protection against unreasonable seizure, provisions of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) that permitted the Canada Revenue Agency to compel a lawyer to provide information about a client, and that purported to exempt, from solicitor-client privilege, the lawyer’s accounting records. The Supreme Court held, at para. 40, that there is “a rebuttable presumption … ‘that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature’” (citation omitted). The Court further held, at para. 73, that accounting records fall within that presumption, as they may contain privileged information such that disclosure could involve a breach of solicitor-client privilege.

The Test for Rebutting the Presumption of Privilege

[46] The presumption of privilege may be rebutted by evidence that disclosure of the information “would not violate the confidentiality of the relationship”: Maranda, at para. 34.

[47] In Kaiser, this court articulated the test for rebutting the presumption of privilege. In that case, a trustee in bankruptcy suspected the bankrupt of hiding assets and using an associate as a “straw man”. The trustee sought an order compelling the bankrupt’s lawyer to disclose the identity of the person paying the bankrupt’s legal fees. This court reversed the lower court’s grant of the trustee’s request, holding, at para. 21, that “administrative information related to the establishment of a solicitor-client relationship – including a lawyer’s bill and a client’s ability to pay, and by extension, the source of the lawyer’s fees – is presumptively privileged” (emphasis in original). This court, at para. 30, stated that the presumption may be rebutted by evidence showing that: (a) there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or (b) the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.

[48] On the evidence in Kaiser, the presumption was not rebutted: at paras. 32-38.

No Legal Error in Finding that the Trust Ledgers in this Case are Presumptively Privileged

[49] The appellants seek disclosure of trust ledgers of lawyers for Al Jabri and Mohammed for all transactions, legal and non-legal, from 2017 forward, and the name and identifying account information of any and all senders and recipients of the funds. There is no dispute that trust ledgers are administrative or accounting records kept by lawyers. In Ontario, a lawyer is required to maintain a client’s trust ledger “showing separately for each client for whom money is received in trust all money received and disbursed and any unexpended balance”: Law Society of Ontario, By-Law 9, s. 18. Although the request is made for trust ledgers worldwide, there is no evidence that the law of any other jurisdiction differs from that of Ontario on this point.

[50] The appellants seek to limit the presumption of privilege to cases of compelled seizures, by police or an administrative agency without notice to the privilege holder, of documents that may disclose privileged information. In that circumstance, the presumption is a necessary protection, as otherwise the client would have no opportunity to make its case for privilege before the authorities had examined the documents and accessed what might be privileged information. The appellants argue that the presumption should not apply on a contested motion for production in a civil case, where the client may make its case for privilege before turning over the document.

[51] I disagree. The case law establishing the presumption envisages no such limitation on its application. To the contrary, in Chambre des notaires, the Supreme Court emphasized the importance of protecting solicitor-client privilege in all contexts: “[T]he reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is always high, regardless of whether the question arises in a civil, administrative or criminal context”: at para. 33.

[52] The presumption is important for the protection of privilege even in the context of a contested civil motion, since it limits the amount of information that must be disclosed before privilege will rebuttably apply, obviating the risk of a client having to disclose privileged information to establish its privilege claim. Kaiser was a contested civil motion, and this court applied the presumption in it.

[53] The presumption operates in respect of records which might or might not ultimately be privileged; records which, on the one hand, might contain information that not only appears but actually is “neutral” in the sense of not disclosing privileged information, or on the other, might contain information that discloses or creates a pathway for deducing privileged information. The difficulty in knowing, in advance, into which category the records fall, and the objective of keeping any impairment of solicitor-client privilege to a minimum, favours presuming such records to be privileged and placing the onus on the requesting party to rebut the presumption: Maranda, at para. 33.

[54] Accordingly, the appellants’ arguments that the presumption did not arise in this case are unpersuasive.

The Appellants Did Not Rebut the Presumption of Privilege

[55] For ease of reference, I repeat the test from Kaiser, at para. 30, for rebutting the presumption of privilege. It has two branches, either of which may be relevant depending on the facts of the case:

The presumption [of privilege] may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client. [Citations omitted.]

[56] The motion judge held that the appellants had not rebutted the presumption in this case. As the motion judge noted, to the extent the appellants seek production of the trust ledgers because it would allow them to ascertain the identity of who pays the respondents’ legal fees, they seek presumptively privileged information: see Kaiser, at para. 30. To the extent they seek information about post-2017 dealings with lawyers, they seek information which may disclose the respondents’ legal advice and legal strategy: see Maranda, at paras. 32-33. If presumptively privileged information could prejudice the client or reveal confidential communications, the presumption is not rebutted.

[57] These were findings of mixed fact and law to which deference is owed. The Divisional Court upheld that finding as disclosing no error. I agree.

[58] The appellants argue that the presumption must fall away for records relating to “non-legal” transactions. Although the appellants have not precisely indicated how they define “non-legal” transactions or distinguish those from strictly “legal” ones, they provide the example of a person using a lawyer as a mere conduit for moving money, without seeking or receiving any legal advice. They point to the comment of LeBel J. in Maranda, at para. 30, that “not everything that happens in the solicitor-client relationship falls within the ambit of privileged communication, as has been held in cases where it was found that counsel was not acting in that capacity but simply as a conduit for transfers of funds” (citations omitted).

[59] Here, other than the framing of the request, nothing supports the view that the records requested are for transactions where the lawyers acted solely as conduits. I do not accept the appellants’ argument that a transaction in 2018 (after the alleged fraud, and before the Mareva Orders), in which a Canadian law firm held money in trust for a Canadian property acquisition made by Al Jabri, but listed the client as a U.S. law firm, is evidence of the respondents using a law firm as a conduit only, let alone evidence that supports the inference that they use other (unspecified) law firms post the Mareva Orders as conduits to breach those orders.

[60] The appellants also argue that the analysis in the courts below was flawed because treating information about who is paying the respondents’ legal fees as privileged in a case where Mareva Orders have been made is inconsistent with the requirements placed on a party subject to such an order when they move to vary it, for example, to obtain permission to access frozen funds to pay expenses. The respondents submit that when making such a request, the party subject to the Mareva order may be required to disclose other sources of funding, including that others may be paying their expenses: Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, 2003 CanLII 12916 (ON SC), [2003] O.T.C. 7 (Ont. S.C.).

[61] This submission is unpersuasive. What a party might have to disclose to obtain a discretionary exercise of the court’s authority to vary an order does not affect whether the information is privileged to start with, which is the issue the motion judge and the Divisional Court had to address. A party may choose to waive privilege to advance their case to obtain a variation. If they do not wish to, they may decline to seek the variation or attempt to persuade the court that the variation should be granted without the information. It is impermissible to reason backward from a hypothetical waiver to a proposition that privilege never existed.

[62] The appellants have identified no extricable error of law, or palpable and overriding error of fact or mixed fact and law in the motion judge’s conclusions that the presumption of privilege applied and was not rebutted. Nor have they identified an error in principle in the Divisional Court’s review of those conclusions.

The Divisional Court Did Not Err in Finding the Crime-Fraud Exception was Inapplicable[4]

[63] The appellants submit that even if the trust ledgers are presumptively privileged, and the presumption is not rebutted on the Kaiser grounds, they should nevertheless be disclosed because they fall under the crime-fraud exception to solicitor-client privilege.

i. Overview of the Exception

[64] In Blood Tribe, at para. 10, Binnie J. described the scope of the exception in the following terms: “A rare exception … is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes” (citations omitted). In Crime Stoppers, at para. 26, Moldaver J. described the exception in similar terms: “The rule of solicitor-client privilege thus recognizes that in exceptional circumstances — where communications between a lawyer and client are criminal or where legal advice is sought for the purpose of facilitating a crime — the privilege does not exist”.

[65] The parties differ on the accuracy or completeness of these descriptions of the scope of the exception and the implications of that for the determination of this appeal. Before addressing the dispute about scope specifically, I describe certain features of the exception that are not in controversy.

ii. The Rationale for the Exception

[66] The crime-fraud exception has an accepted rationale. It exists because communications that fall within its scope cannot be part of the professional employment of a lawyer: Crime Stoppers, at para. 25; R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 55, citing Solosky, at pp. 835-36. Put differently, on certain topics a lawyer could never be properly retained and consulted, nor could a client reasonably expect to be able to do so. An exception to privilege must be recognized because “otherwise it would undermine the interests of justice and thus the very reason for granting the privilege in the first place”: Crime Stoppers, at para. 26.

iii. The Preconditions to the Application of the Exception

[67] The exception has the following preconditions:

(i) The exception does not encompass good-faith legal advice. Consulting a lawyer to determine whether or not a course of action is legal is not caught by the exception, even if the action is later found to be illegal: Campbell, at para. 56; Markson v. MBNA Canada Bank, 2011 ONSC 871, 16 C.P.C. (7th) 332, at paras. 58, 65.

(ii) The client must be seeking to advance conduct which is clearly wrong and which it knows or should know is unlawful. The focus is on the knowledge and intent of the client, who must intentionally be using the lawyer-client relationship to facilitate unlawful conduct: Campbell, at para. 57 (citations omitted); Industrial Alliance Securities Inc. v. Kunicyn, 2020 ONSC 3393, 151 O.R. (3d) 3026, at para. 28.

(iii) The communications must be about future conduct. Communications about past wrongs are privileged: Industrial Alliance, at para. 28; David M. Paciocco, Lee Stuesser & Palma Paciocco, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 306; Campbell, at para. 56.

(iv) The burden of proof lies with the party asserting that the exception applies. The burden is not satisfied by pointing to wrongdoing and to the fact that a lawyer was consulted. “[D]estruction of the privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with a lawyer… [there] must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a ‘dupe or conspirator’” of the client: Campbell, at para. 62. The party asking for the exception to apply must demonstrate a prima facie case of a communication that falls within the exception: Industrial Alliance, at para. 29. A mere allegation will not suffice. As the House of Lords observed in O’Rourke v. Darbishire, [1920] A.C. 581, at p. 604:

[T]here must be, in order to get rid of the privilege, not merely an allegation that [communications between client and lawyer] were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact.

See also: R. v. Swearengen (2003), 2003 CanLII 16208 (ON SC), 68 O.R. (3d) 24 (S.C.), at paras. 13-16; Sperry Corp. v. John Deere Ltd. (1984), 1984 CanLII 5875 (FCTTD), 82 C.P.R. (2d) 1 (F.C.T.D.), at p. 17; Silverman v. Morresi (1982), 28 C.P.C. 239 (Ont. H.C.), at pp. 5-6; Canbook Distribution Corp. v. Borins (1999), 1999 CanLII 14842 (ON CTGD), 7 C.B.R. (4th) 121 (Ont. Gen. Div.), at pp. 127, 129-30; Re Goodman and Carr et al. v. Minister of National Revenue (1968), 1968 CanLII 340 (ON HCJ), 2 O.R. 814 (H.C), at p. 816; Bruno Appliance and Furniture Inc. v. Cassels Brock & Blackwell LLP, 2008 CanLII 63181 (Ont. S.C.).

iv. The Scope of the Exception

[68] The Divisional Court noted that “a group of non-appellate cases and commentaries from here and elsewhere … suggest that the exception should apply to any intentional dishonest[y] or deceit, including a claim for civil fraud or breach of a court order.” Like the motion judge, it rejected the applicability of those authorities, holding they were contrary to binding Supreme Court jurisprudence. Under that jurisprudence, according to the Divisional Court, “for the exception to apply, the communications must be criminal in themselves or intended to further a criminal purpose.” Accordingly, the Divisional Court agreed with the motion judge that “a claim for civil fraud is not enough”, nor is “breach of a court order”.[5]

[69] Primary reliance was placed by the Divisional Court on Blood Tribe, at para. 10, where Binnie J. described the exception as attaching “to communications criminal in themselves or intended to further criminal purposes” (emphasis added). In the Divisional Court’s view, that language was especially significant, given that Binnie J. described the exception as “rare” and of an “extremely limited nature” consistent with keeping the privilege “as close to absolute as possible”.

[70] The Divisional Court rejected the argument that Blood Tribe’s limitation of the exception to criminal conduct is inconsistent with earlier Supreme Court jurisprudence setting out the scope of the exception. It added that other Supreme Court decisions, decided before and after Blood Tribe, had imposed the same limitation:

The Supreme Court’s emphasis on criminal conduct was also underscored in [Descȏteaux]at p. 881. Lamer J., as he then was, noted the requirement that the communications must be criminal in themselves or intended to further a criminal purpose….

More recently, in[Crime Stoppers] at para. 25, the Supreme Court described the exception as applying to communications between a lawyer and a client that are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime....

[71] In this court, the appellants argue that the Divisional Court’s reliance on Blood Tribe cannot be reconciled with earlier Supreme Court authority, such as Campbell, which they say described the exception as applying to tortious conduct – and therefore at least to fraud outside of the criminal context. They stress references in Solosky and Descȏteaux to “crime or fraud”, and note the brief reference to the exception as involving “unlawful conduct” in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at para. 16.

[72] Alternatively, the appellants argue that the scope of the exception is unsettled in Canadian law, and developments in other jurisdictions, and sound policy, lead to the conclusion that the exception should apply to unlawful conduct that is not criminal. The appellants note that, as English law has developed, what is now referred to as the “iniquity exception” applies “equally to legal advice privilege and litigation privilege”, and “is not confined to fraudulent or criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice”: Al Sadeq v. Dechert, [2024] E.W.C.A. Civ. 28, at paras. 54-55 (citations omitted).

[73] In other words, from either starting point, the appellants argue that the scope of the exception must include communications in furtherance of civil fraud and breaches of a court order, and although unnecessary for the ultimate determination of their case, they urge an interpretation that would sweep communications in furtherance of all unlawful conduct into the exception.

[74] I do not agree with the appellants that the exception could extend “beyond fraudulent or criminal purposes”. Like the courts below, I view Blood Tribe and Crime Stoppers as foreclosing such a wide interpretation of the exception. However, given the broad meaning of fraud in criminal law, the “criminal purpose” properly attributed to a communication made to facilitate the breach of a court order, and the fact that the applicability of the exception depends on the nature and purpose of the communication—not on the type of proceeding in which privilege is claimed—that wide interpretation is not necessary to determine this case.

Blood Tribe and Crime Stoppers Are Authoritative and not Inconsistent with Prior Authority

[75] The recent statements of the Supreme Court on the scope of the exception in Blood Tribe and Crime Stoppers are authoritative, as in each case they were integral to the court’s reasoning: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57.

[76] The issue in Blood Tribe was whether open-textured legislative language permitting the Privacy Commissioner to compel production of documents should be read as allowing it to compel production of solicitor-client privileged documents. In deciding that issue, the Supreme Court was directly concerned with the scope of, and limits on, solicitor-client privilege. The statement in Blood Tribe that solicitor-client privilege must be “as close to absolute as possible”, the description of the exception as “rare” and “extremely limited”, and the description of the scope of the exception as applying to communications that are criminal in themselves or in furtherance of a criminal purpose, are integrally related to each other and to the decision in the case – that the legislation would not be interpreted to override privilege. As Binnie J. put it, at paras. 10-11:

A rare exception, which has no application here, is that no privilege attaches to communications criminal in themselves or intended to further criminal purposes…. The extremely limited nature of the exception emphasizes, rather than dilutes, the paramountcy of the general rule whereby solicitor-client privilege is created and maintained “as close to absolute as possible to ensure public confidence and retain relevance”.

To give effect to this fundamental policy of the law, our Court has held that legislative language that may (if broadly construed) allow incursions on solicitor-client privilege must be interpreted restrictively. The privilege cannot be abrogated by inference. Open-textured language governing production of documents will be read not to include solicitor-client documents …. This case falls squarely within that principle. [Citations omitted; emphasis in original].

[77] Similarly, the issue in Crime Stoppers was informer privilege, which the Supreme Court held did not apply to persons acting to subvert the law: at para. 23. In reaching that conclusion, Moldaver J. described, and analogized to, the crime-fraud exception to solicitor-client privilege and its underlying rationale, at para. 26:

The rule of solicitor-client privilege thus recognizes that in exceptional circumstances — where communications between a lawyer and client are criminal or where legal advice is sought for the purpose of facilitating a crime — the privilege does not exist, because otherwise it would undermine the interests of justice and thus the very reason for granting the privilege in the first place. Likewise, informer privilege does not exist where it would compromise the underlying rationales for the rule.

[78] Not only are they authoritative in themselves, the description of the scope of the exception in Blood Tribeand Crime Stoppers – communications criminal in themselves or intended to further criminal purposes – does not understate the breadth of the exception adopted in the earlier cases ofSolosky, Descȏteaux, Campbell,andPritchard.

[79] In Solosky, at p. 835, Dickson J. (as he then was) made two statements concerning the scope of the exception, one that referred to crime or fraud, and the other to in furtherance of a criminal purpose. He stated:

More significantly, if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or fraud, the communication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classic case is R. v. Cox and Railton, in which Stephen J. had this to say (p. 167): “A communication in furtherance of a criminal purpose does not ‘come in the ordinary scope of professional employment’. [Emphasis added; footnote omitted.]

There is nothing in Solosky that suggests any daylight between the two descriptions.

[80] In Descȏteaux, at p. 873, Lamer J. (as he then was) stated that “[c]ommunications made in order to facilitate the commission of a crime or fraud will not be confidential either” (emphasis added). But that reference was followed by other passages that refer to the exception applying to communications criminal in themselves or made for the purpose of obtaining legal advice to facilitate the commission of a crime:at pp. 881, 893. Again, nothing suggests that one description was intended to be broader than the other.

[81] In Campbell, at para. 55, Binnie J.stated “[i]t is well established ... that there is an exception to the principle of confidentiality of solicitor-client communications where those communications are criminal or else made with a view to obtaining legal advice to facilitate the commission of a crime” (emphasis added). References by Binnie J. to authorities from other jurisdictions that contained broader descriptions of the exception were made in specific contexts and for limited purposes. Nothing suggests he was accepting those broader descriptions to define the scope of the exception for Canadian law.

[82] For example, at para. 58 of Campbell, in considering whether the client must “knowingly” be pursuing a “criminal” object, Binnie J. cited an American authority, “The Future Crime or Tort Exception to Communications Privileges” (1964) 77 Harv. L. Rev. 730, where the authors stated: “The attorney-client privilege has always been subject to the qualification that protection is denied to communications wherein a lawyer’s assistance is sought in activity that the client knows to constitute a crime or tort.” However, although agreeing with that view for the purpose of knowledge of the criminal object, he did not state that he agreed with extending the exception to any tort.

[83] At para. 59 of Campbell, Binnie J. also cited O’Rourke (an English civil case) at p. 621, where the following statement is made: “[P]rivilege does not attach where a fraud has been concocted between a solicitor and his client, or where advice has been given to a client by a solicitor in order to enable him to carry through a fraudulent transaction.” But he did so in connection with a discussion of the public policy aspect of the exception – that it is not part of a lawyer’s role to concoct fraudulent transactions: see Campbell, at paras. 58-59. He did not otherwise discuss the type of fraud to which the exception applied or suggest that it applied to a broader category of tortious conduct.

[84] In Pritchard, Major J. stated that the privilege does not extend to “communications … that have the purpose of furthering unlawful conduct”: at para. 16, citing Solosky, at p. 835 (emphasis added). There was no other discussion of the exception, and nothing suggests that Major J. intended to extend the exception beyond the type of unlawful conduct referred to in Solosky, the only case he cited.

[85] Reconciling all of the descriptions of the scope of the exception that appear in Solosky, Descȏteaux,and Campbell, and bearing in mind that exceptions to privilege are interpreted narrowly, it is unlikely the references to crime or fraud were intended to open the exception up to a wide array of unlawful conduct. It is more likely that the references to crime or fraud in some of the formulations, and to criminal conduct or a criminal purpose without a separate reference to fraud in others, were mutually reinforcing — indicating that criminal conduct or a criminal purpose is required and identifying a particular type of criminal conduct or purpose — fraud — as a useful example of what the exception aims at. Indeed, an intended fraud is the poster child of the type of criminal conduct or criminal purpose that easily fits all of the requirements of the exception, as it involves future, knowingly wrongful conduct of the sort that a disreputable client might seek to concoct with or through a lawyer.

[86] Importantly, Soloskyand Descȏteaux are cited in Blood Tribe, at para. 10, and Crime Stoppers, at para. 25, where the exception was described as extremely limited in nature and rare, or exceptional, and was cast in terms of criminal conduct or a criminal purpose. Even if it were possible to read the earlier cases more than one way, it is not possible to do so after Blood Tribeand Crime Stoppers.[6]

The Broad Concept of Fraud in Criminal Law

[87] Given the breadth of the concept of fraud in criminal law, it is also unnecessary to import other uses of the term into the exception in order for the exception to have sufficient breadth to remain faithful to its rationale – that certain communications fall outside the proper scope of employment of a lawyer such that they are not privileged, because attaching privilege to them would undermine the administration of justice.

[88] Section 380(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that everyone commits fraud “who, by deceit, falsehood or other fraudulent means … defrauds the public or any person … of any property, money, or valuable security or any service”. “Defrauds” is not defined in the Criminal Code and “[c]ourts, for good reason, have been loath to attempt anything in the nature of an exhaustive definition of ‘defraud’ but … two elements are essential, ‘dishonesty’ and ‘deprivation’”: R. v. Olan et al., 1978 CanLII 9 (SCC), [1978] 2 S.C.R. 1175, at p. 1182. This criminal concept of fraud is broader than fraudulent misrepresentation, such as that required to establish deceit or civil fraud: Olan, at p. 1181; Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 21.[7]

[89] Accepting that “it is no part of the professional duty of a solicitor either to take part in the concoction of fraud, or to advise his client how to carry through a fraud” (Campbell, at para. 59, citing O’Rourke, at p. 621), a communication about how to concoct or carry out a fraud would fall within the exception as it would fall within the criminal law’s broad understanding of that term. Indeed, it is difficult to imagine a client communicating to a lawyer that they would like advice to concoct a fraud, but only a civil one. And since, as explained below, the exception applies to the communication, it does not matter what type of proceeding later occurs.

Communications Intended to Facilitate the Breach of a Court Order Have a “Criminal Purpose” Within the Meaning of the Exception

[90] Applying the exception to communications intended to facilitate a breach of a court order also does not require broadening the exception beyond the Supreme Court’s boundaries, as such communications have a sufficiently “criminal purpose” to fit within it.

[91] In Campbell, Binnie J., at para. 62, suggested that the exception would apply to communications to facilitate a regulatory (i.e., a quasi-criminal) offence. The Supreme Court has described contempt of a court order as “quasi-criminal”. Defiance of a court order goes beyond a private wrong and “involves an element of public law … because respect for the role and authority of the courts, one of the foundations of the rule of law, is always at issue”: Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065, at p. 1075. The Supreme Court has also held that the gravity of the punishment mechanism — a contempt order — “is underscored by the criminal law protections afforded to the person against whom such an order is sought”, as well as by the sanctions that follow, which can include imprisonment or any other sanction available for a criminal offence. Thus “both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law”: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 35.

[92] Accordingly, as long as the other preconditions to the application of the exception are met, communications that are intended to facilitate a future breach of a court order come within the exception as communications that are intended to further a criminal purpose.

The Exception Applies Regardless of the Type of Proceeding in Which Privilege is Claimed

[93] Finally, it is important not to confuse the scope of the exception with the type of case in which a privilege claim comes to be adjudicated. Although the motion judge and the Divisional Court were correct to describe the exception’s scope as limited to communications criminal in themselves or intended to further a criminal purpose, that did not mean that the exception was off the table simply because the action is one for civil fraud, as the courts below held.

[94] The “‘crime requirement’ …. does not require the laying of actual criminal charges”: Adam Dodek, Solicitor-Client Privilege (Markham: LexisNexis Canada Inc., 2014), at para. 3.81. The applicability of the exception turns on the nature and purpose of the communications between the client and the lawyer, not the nature of the proceeding in which privilege is claimed or challenged.

[95] Put differently, a client who seeks advice from a lawyer as to how to carry out a future fraud, or enlists the lawyer as a conspirator in that fraud, or seeks to use the lawyer-client relationship to facilitate a breach of a court order, never enjoys privilege over the communications whether charged criminally or only pursued civilly.

v. The Crime-Fraud Exclusion Does Not Apply in this Case

[96] I agree, however, with the Divisional Court that the crime-fraud exception does not apply in this case.

[97] Although the motion judge did not do so, the Divisional Court went on to consider whether the appellants had made out the test for the crime-fraud exception, even if it could be applicable where the action was for civil fraud or breach of a court order was alleged in a civil action. It concluded the test was not made out. The appellants have not identified a reviewable error in these findings.

[98] The appellants seek records from two time periods: 2017 to 2021 (i.e., between the end of Al Jabri’s alleged “massive fraud” and the issuance of the Mareva Orders), and 2021 to the present (after the Mareva Orders). Before the motion judge, the appellants conceded that they alleged no wrongdoing against any of the law firms with whom the respondents dealt before or after the Mareva Orders. Accordingly, the appellants were obliged to show, on a prima facie basis, that the respondents were involved in communications in which they were duping the lawyers to tell them how to implement future fraud or contemptuous intentional breaches of the Mareva Orders.

[99] As the Divisional Court concluded, the appellants did not meet their onus, noting in particular that, in respect of fraud, the records were sought for a period after Al Jabri was alleged to have participated in a fraud and, in respect of breach of the Mareva Orders, the appellants had already tried and failed to show that the respondents had breached them in the way their legal expenses were being funded:

In the present case, the notice of motion is very general. It does identify what is a very lengthy time period – commencing in 2017 and forward to the present time. As noted above, that time period means that the core alleged fraud cannot be the future unlawful activity under the exception. The notice of motion then seeks the trust ledgers for “any” law firm. It does not identify any of the law firms said to have been used to facilitate a future fraud or breach, nor does it identify what step or steps were the future fraudulent steps that those law firms allegedly facilitated. No specific transactions are identified in the request for production from “any” law firm. The evidence on the motion contains ad hoc references to law firms, without tying a firm to a later fraudulent transaction let alone providing prima facie evidence that meets the knowledge requirement or other aspects of the above test.

The appellants rely on the finding of a strong prima facie case for fraud on the original ex parte mareva injunction, including findings that [Al Jabri] was adept at moving money around the world and continued to do so. However, on this motion the appellants have not identified the steps taken commencing in 2017, after the core fraud had taken place, and forward to the present time. Instead, they submit that transactions with law firms subsequent to the mareva injunctions in 2021 and 2022 were taken in breach of those mareva injunctions. They submit that this is the intentional and dishonest conduct falling within the exception. They further submit that we should infer that there were breaches of the mareva injunctions since the respondents must have used frozen funds to pay their lawyers.

I have difficulty with these very general submissions. First, if the exception could apply, the appellants were still obliged to meet an evidentiary threshold to show it applies to the documents request. Second, the finding of prima facie fraud [for the initial Mareva] was made ex parte and on a record that does not appear to have been before the motion judge and appears to have been focused on events that predate the time period for the document request. Third, there was a contempt motion regarding the alleged breach of the [Al Jabri] Mareva (including the sought after inference that it was breached to pay lawyers), which was dismissed in 2024, as set out above. The alleged wrongful activity was not sufficiently proved. Fourth, given the fundamental importance of solicitor/client privilege, general submissions and sought-after broad inferences are not enough to displace the privilege for “any” law firms for a period from 2017 to the present time. Therefore, if I had concluded that the exception could apply to this civil claim, I would still have dismissed this appeal.

[100] The appellants argue that the Divisional Court held them to an “impossible standard” when it observed that their request was completely unparticularized. I disagree. The appellants made a very broad, multi-year request for documents. The prima facie case standard is important to keeping the crime-fraud exception narrow, and thus to keeping solicitor-client privilege as close to absolute as possible. It was thus important that the appellants did not identify which law firms they believe were involved in communications concerning a future fraud or breach of the Mareva Orders, or how those communications linked to transactions or a category of transactions that were fraudulent or constituted contempt. In short, they did not demonstrate a prima facie case for access to all the records sought. Given the breadth of their request, the appellants could go no farther than say that access to the documents could enable them to determine that they are entitled to that access. As they state in their factum, “the existence of transactions alone could provide the necessary foundation for application of the exception.” This is insufficient to justify negating solicitor-client privilege.

vi. The Fresh Evidence Motions Should be Dismissed

[101] The appellants seek leave to introduce fresh evidence on this appeal, specifically on the issue of whether the Divisional Court erred in finding that the appellants had not established on a prima facie basis the existence of communications that came within the exception. In response, the respondents have brought a cross-motion seeking to introduce fresh evidence to contextualize the appellants’ fresh evidence if ultimately admitted.

[102] The test to admit fresh evidence requires the moving party to show that the proposed evidence: (i) is credible, in that it is reasonably capable of belief; (ii) is relevant to a decisive issue; (iii) could not have been, through due diligence, adduced at trial (or the motion); and (iv) if admitted and believed, it could have been expected to have affected the underlying result: James Estate (Re), 2024 ONCA 623, 94 E.T.R. (4th) 159, at para. 19, leave to appeal refused, [2024] S.C.C.A. No. 434; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.

[103] The appellants’ fresh evidence is primarily an attempt to show the respondents must be using frozen funds to pay legal expenses, and that the trust ledgers they seek would not be privileged because the communications they reveal would have been intended to facilitate that illicit purpose.

[104] As the respondents point out, some of the proposed “fresh” evidence was available with due diligence before the hearing of the appeal at the Divisional Court. The fact that U.S. lawyers have been litigating on behalf of the respondents in a U.S. federal court since 2020 is publicly accessible information — the filings in the U.S. proceeding can be (and were) accessed through the U.S.’ Public Access to Court Electronic Records (“PACER”) system. Additionally, materials filed for the respondents’ motion to vary the Mareva Orders in the Ontario proceeding, including the respondents’ affidavits dated June 17, 2024, were similarly available.

[105] The balance of the fresh evidence could not have affected the result in the Divisional Court. The appellants seek to introduce Mohammed’s affidavit affirmed on March 31, 2025, outlining how he dealt with funds after the granting of the Mareva order against Al Jabri but before the granting of the Mareva order against Mohammed. It does not advance the inference that Mohammed used lawyers’ trust accounts to circumvent the Mareva order against him after it was in effect, or that the trust ledgers the appellants seek over a multi-year period will show communications intended to facilitate such circumvention.

[106] The appellants also point to emails in 2021 shortly after each Mareva order was granted, which they say support the view that the respondents were then taking steps to use frozen funds to pay legal fees. The emails are unclear in that respect. They do not support an inference about trust ledgers before the Mareva Orders. As for trust ledgers after the Mareva Orders, it is not clear why the 2021 emails would change the findings below sufficiently to justify a finding of a prima facie case that the trust ledgers in the years following the Mareva Orders, of all of the lawyers whose records are sought, show such dealings.

[107] The appellants are not seeking to appeal the dismissal of their contempt motion, which covered the period referred to in the 2021 emails and Mohammed’s 2025 affidavit. Instead, they are trying to make a case for disclosure of all lawyers’ records, before and after 2021, and it is not clear how the case for those is linked to the fresh evidence. The appellants assert no wrongdoing against the lawyers whose trust ledgers they now seek, which seems inconsistent with any suggestion that they accepted payment of legal fees made from funds frozen by the Mareva Orders.

[108] Accordingly, I would dismiss the appellants’ motion to introduce fresh evidence. It follows that I would also dismiss the respondents’ fresh evidence motion.

3. The Divisional Court Made No Error in Remitting the Privilege Determination Regarding Redacted Bank Statements to the Motion Judge

[109] The appellants submit that while the Divisional Court correctly held that the presumption of privilege does not apply to entries in a client’s bank statements, it erred in holding that a litigant could arguably assert and establish privilege over such information. Accordingly, the issue should not have been remitted to the motion judge; instead, the Divisional Court should have determined that no privilege applies.

[110] The appellants contend that bank statements cannot be privileged because financial institutions are not part of the solicitor-client relationship, and where required by law, banks disclose transactions recorded in bank statements. Additionally, because bank statements only record the date and quantum of funds transferred, they cannot reveal solicitor-client communications. Finally, they note that in Chambre des notaires, at para. 32 and Maranda, at para. 34, third party records were identified as an appropriate alternative source of information truncating the need for litigants to seek privileged information in the form of lawyers’ records.

[111] For the appellants to succeed in this argument, there would have to be no arguable case that privilege could apply to entries that show payments to lawyers. The appellants have not demonstrated that to be the case.

[112] First, depending on the circumstances, the fact that a person made a payment to a lawyer, and its quantum, could be privileged. In Maranda, at para. 32, the Supreme Court explained that what a lawyer advised, what they charged, and what they were paid, could be inextricably bound up:

The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship and of what transpires within it. That fact is connected to that relationship, and must be regarded, as a general rule, as one of its elements. [Emphasis added.]

[113] Second, although the payments are recorded in bank statements, it is a contextual question as to whether privilege could apply. As the Supreme Court recognized in Chambre des notaires, at para. 73, privilege does not depend on the type of document, but instead, “on its content and on what it might reveal about the relationship and communications between a client and his or her … lawyer” (emphasis added). The question of whether privilege could apply in this context is at least arguable, in light of Chambre des notaires, Maranda, and cases which have considered that records held by third parties may contain privileged information: see generally R. v. A.B., 2014 NLCA 8, 346 Nfld. & P.E.I.R. 218. Although the appellants contest the proposition that the entries on the bank statements are privileged, they do not contest the concurrent findings in the courts below that any privilege in those entries has not been waived.

[114] Taken together, these considerations made it appropriate to remit the privilege determination relating to the bank statements back to the motion judge.

[115] The appellants also raise concerns about the impact the Divisional Court’s holding will have on Norwich orders. I am not persuaded by this concern. If, under a Norwich order, a bank made production of banking records that a client believed contained privileged information, it would be open to the client to move to obtain appropriate relief to protect the privilege. Production by a bank under an order obtained on an ex parte basis would not waive the client’s privilege.

VI. Conclusion

[116] While a theme of the appellants’ submissions is the need to foster the efficacy of Mareva injunctions, the appellants have not argued that they have an independent right under the Mareva Orders to disclosure from law firms. They concede, as they must, that law firm records, even for a client subject to a Mareva order, are accessible by them only if not privileged. The ability to rebut the presumption of privilege, or to show that the crime-fraud exception applies to a particular record, appropriately balances two important interests: the integrity of court orders, and the protection of a privilege which serves the administration of justice and is to be as close to absolute as possible. As I have found, there was no error in the disposition below that the appellants failed to rebut the presumption of privilege and that the crime-fraud exception did not apply.

[117] I would dismiss the appeal. In accordance with the agreement of the parties, the appellants shall pay costs to the respondents fixed in the amount of $50,000 for the main appeal, and $12,000 in total for the fresh evidence motions, inclusive of disbursements and applicable taxes.

Released: August 19, 2026 “B.W.M.”

“B. Zarnett J.A.” “I agree. B.W. Miller J.A.” “I agree. L. Madsen J.A.”

1Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574, at para. 10.

2The Norwich Order also required several law firms to produce certain “non-privileged” records relating to specific transactions.

3For brevity, I will refer to these categories as the “trust ledgers” and the “unredacted bank statements”, and all the materials sought together as simply “the records” or “the information sought”.

4As will be apparent from the discussion that follows, despite the debate about the scope of the exception, the commonly used name of the exception is appropriate.

5In reaching this conclusion the Divisional Court endorsed the reasoning of Glustein J. in Wintercorn v. Global Learning Group Inc., 2023 ONSC 199.

6In R. v. Fox, 2026 SCC 4, 509 D.L.R. (4th) 670, the exception was described as “communications that are criminal in themselves or that have the purpose of furthering unlawful conduct”: at para. 31 (emphasis added). I do not read this nomenclature as widening the exception to any kind of unlawful conduct. Nothing else in the decision suggests that was the intention, and the citations to Blood Tribe, Solosky, and Pritchard would suggest otherwise.

7In Bruno Appliance, at para. 21, the Supreme Court summarized the elements of the tort of civil fraud as follows: “(1) a false representation made by the defendant; (2) some level of knowledge of the falsehood of the representation on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff’s actions resulted in a loss.”