LAW SOCIETY TRIBUNAL

HEARING DIVISION

Date: March 31, 2026

Tribunal File No.: 24H-049

BETWEEN:

Law Society of Ontario

Applicant

• and -

Gregory Harrington Harris

Respondent

Before: Malcolm M. Mercer (Chair)

Heard: March 12, 2026, by videoconference

Appearances:

Joshua Elcombe, for the applicant

Kris Borg-Olivier and Pooja Patel, for the respondent

Summary:

HARRIS – Motion for Further Disclosure – The panel concluded that not every communication between the law firm and the Law Society was potentially relevant and therefore disclosable – The panel also concluded that not every communication between the law firm and the Law Society was protected by solicitor-client privilege – The law firm was not retained to provide legal advice but to conduct a regulatory investigation – Investigative work undertaken by a lawyer is not privileged merely because a lawyer performs the work – Communications may be privileged where the Law Society obtains legal advice from a lawyer investigator – The Lawyer’s motion was dismissed – Where the Law Society claimed a general privilege over documents, those documents are to be disclosed; where the Law Society claims privilege, those documents must be identified in accordance with the Rules.

REASONS FOR DECISION ON MOTION

1Malcolm M. Mercer:– The moving party, Gregory Harris, seeks an order directing the Law Society to make further disclosure of all communications between Polley Faith LLP (Polley Faith) and the Law Society in respect of the investigation of Mr. Harris’ conduct, other than communications with discipline counsel.

2The Law Society has a disclosure obligation to respondents in conduct and other applications. All potentially relevant documents in the possession of the Law Society must be disclosed, subject to privilege.

3For the following reasons, I dismiss Mr. Harris’ motion. I do not accept the claim that all communications are potentially relevant and are therefore disclosable.

4The Law Society claims that solicitor-client privilege generally applies to all communications between Polley Faith and the Law Society in the course of the investigation. For the following reasons, I do not accept this claim with the result that some of the communications that the Law Society concedes are relevant must be disclosed to Mr. Harris.

5However, other of the communications between Polley Faith and the Law Society appear to be privileged which should be further addressed.

THE INVESTIGATORS

6Stephen McClyment, a lawyer then employed by the Law Society as senior investigation counsel, commenced the investigations into Mr. Harris’ conduct. Mr. McClyment left the Law Society in the fall of 2020.

7In January 2020, the Law Society retained lawyers Andrew Faith and Andrew Max of Polley Faith to complete the investigations. They completed their investigation report in December 2022.

THE INVESTIGATION REPORT

8The Polley Faith investigation report is lengthy, totalling 411 pages with appendices. According to the background section of the investigation report:

On October 27, 2016, the Superintendent of Financial Services obtained an order from the Ontario Superior Court appointing a receiver over companies that held syndicated mortgages on behalf of hundreds of investors. Those investors lent more than $100 million from their RRSPs or from cash savings to build 16 real estate projects that were largely uncompleted. On many of these projects, significant construction never even began. The investors’ loans were to be secured by mortgages on the development properties. Yet when the dust settled, the investors’ security was woefully insufficient to protect their investments. Development companies that had borrowed more than $130 million had approximately $17,000 in their collective bank accounts. The receiver Grant Thornton estimates that these individual investors lost $106 million from their aggregate investment of $131.3M in what are known as the Tier 1 Syndicated Mortgage Investments.

9A Mareva injunction was granted by the Superior Court in 2017 in respect of seven of these projects. In granting the injunction, Justice Meyers called the projects “a ponzi scheme”. According to Justice Meyers’ endorsement as quoted in the investigation report, money raised from the public was not used to build any buildings. Money was raised from new investors to pay interest on money previously raised from prior investors.

10The background section of investigation report further stated that:

Gregory Harrington Harris (“Harris”), the subject of this investigative report, provided legal services in relation to all 16 of the Syndicated Mortgage Investments. As our investigation shows, there was no lawyer more involved in these projects than Harris. He was the supervising and responsible partner for these matters at his firm. According to Harris, he represented the borrowers/developers on 13 projects and the lenders/​mortgage holders on 3 projects. Nearly all the funds raised from investors passed through his firm’s trust account.

Yet Harris’ involvement was not limited to providing legal services for which his firm earned over $1.8 million. The evidence strongly suggests that Harris was an active partner in and beneficiary of the fraudulent scheme ….

11Polley Faith concluded in the investigation report that there were reasonable grounds to believe that Mr. Harris had engaged in professional misconduct summarized as follows:

• Knowingly assisting or participating in dishonest or fraudulent conduct or failing to be on guard against becoming the tool or dupe of an unscrupulous client or third party, contrary to Rule 2.02(5).
• Acting in a conflict of interest, contrary to Rules 2.04(3), (6) and (8).
• Failing to serve his borrower clients and his Tier 1 clients to the standard of a competent lawyer, contrary to Rule 2.01(2).
• Engaging in improper transactions with clients, contrary to Rules 3.4-28 and 3.4-28.1.
• Breaching the duty of integrity (Rule 2.1-1) and failing to treat court with candour (Rules 5.1-1 and 5.1-2(e)) (Rule 6.01(1) in the pre-2014 Rules).

THIS APPLICATION AND DISCLOSURE TO DATE

12This application began in April 2024. The allegations in the notice of application are very serious, including alleged knowing participation in fraud or other dishonesty in respect of 15 projects. There are many other allegations.

13The application is complex and document intensive. The Law Society's disclosure to date comprises over 400,000 documents which has included:

• Mr. Harris’ written responses to the investigation and documentary productions;
• investigative interview transcripts;
• electronic records from Harris & Harris LLP;
• documents from the court proceedings;
• approximately 760 emails between Polley Faith and Ellwood Evidence, a digital forensics and e-discovery company; and
• 423 emails between Polley Faith and the Law Society regarding the investigations into Mr. Harris and two other licensees.

14The emails between Polley Faith and the Law Society were disclosed in five PDF “binders” with a number of redactions having been made to the emails in the binders.

15The Law Society has provided a table which identifies the emails in these binders by date, sender, and recipient, and further sets out the “Reason for redaction/removal” and “notes”. I will refer to this table as the Redaction Table for ease of reference. I will refer to individual documents to which the Redaction Table refers either as documents or communications.

16Attachments to three emails between Polley Faith and Ellwood Evidence were not disclosed with the emails. These attachments were separately disclosed in redacted form. The redactions were of communications between another lawyer who was investigated and her clients.

THIS MOTION

17In his notice of motion, Mr. Harris seeks:

An order directing the Law Society to produce unredacted copies of the entirety of the Polley Faith productions (as defined below), excepting those communications with Discipline Counsel with carriage of this Application.

18The notice of motion defines the “Polley Faith productions” to mean documents and communications from Polley Faith and asserts that the Polley Faith productions contain many redactions which are inappropriate or inadequately justified.

19In his factum, Mr. Harris submits that the sole issue to be determined on this motion is whether the redacted/withheld Polley Faith productions are properly protected by claims of privilege. The Harris factum ultimately submits that “the Law Society should be ordered to produce the complete unredacted Polley Faith file, with the exception of truly privileged communications with Discipline Counsel with carriage of this Application”.

20The motion is supported by an affidavit from Mr. Harris. The Redaction Table is an exhibit to the affidavit.

21The Law Society’s reasons in the Redaction Table for redaction/​removal are either “Privileged” or “Irrelevant”. In his motion materials, Mr. Harris does not address the issue of relevance other than generically. In his factum, he says that:

… Much of [the communications] appears to involve discussions between external investigators (who, although practicing lawyers, are retained in this matter as investigators, not counsel) and the Law Society’s internal investigative department about the scope of the investigation and other related issues, all of which are relevant and material to Mr. Harris’s ability to understand the Law Society’s case and to defend himself against it.

22In his factum, Mr. Harris further submits that:

The defence bears the onus of establishing relevance, which at the disclosure stage requires simply that the document may be useful to the defence, either in meeting the case for the prosecution, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence. This is not an onerous burden – it exists to prevent speculative, fanciful, disruptive, unmeritorious, obstructive, and time-consuming requests for production.

23Mr. Harris further submits in his factum that the redacted/removed material:

…appears to comprise hundreds of communications, reports, and summaries, typically delivered from the external Polley Faith investigators to the internal investigative department, and vice versa, many dealing with the scope of the investigation and procedural steps taken (and not taken) in furtherance of the investigation.

24While Mr. Harris’ factum asserts that the Law Society has not established a claim of privilege, his motion materials effectively assume relevance.

25Consistent with its positions in the Redaction Table, the Law Society resists this motion both on the grounds of relevance and privilege.

26In Mr. Harris’ motion materials, he took issue with the Law Society’s claim for ad hoc privilege in respect of communications and draft Investigation Reports relating to the Case Conference and Legal Strategy Meeting (CC&LSM).

27At the motion hearing and having received the Law Society’s motion materials, Mr. Harris appropriately conceded that ad hoc privilege applies to these communications and draft reports: Law Society of Ontario v Mazo, 2024 ONLSTH 59.

APPLICABLE PRINCIPLES

28Rule 10.1 of the Tribunal Rules of Practice and Procedure (the Tribunal Rules) provides that:

The Law Society must disclose to the licensee or licence applicant, within a reasonable period of time following the filing of the application, all potentially relevant documents in its possession, except for those it is not disclosing due to privilege. Privileged documents must be identified to the other party.

29The Law Society is only required to disclose potentially relevant documents. The Law Society is not required to disclose potentially relevant documents that are privileged but must identify them.

30R. v Stinchcombe, 1991 CanLII 45 (SCC) is the foundational case with respect to disclosure in criminal cases. Tribunal Rule 10.1 reflects that Stinchcombe disclosure by the Law Society is required.

31Law Society of Upper Canada v Savone, 2016 ONSC 3378, and Law Society of Upper Canada v James, 2017 ONLSTA 16, are the leading cases with respect to required disclosure by the Law Society in Tribunal proceedings.

Relevance

32In James, the appeal panel distinguished between “‘information’ gathered during an investigation” and the “analysis, comments, and opinions of investigators or counsel” and concluded that “information” must be disclosed but “analysis, comments, and opinions” need not be disclosed. This was confirmed in Barnwell v Law Society of Ontario, 2025 ONSC 1825 at para 103.

33As the Martin Committee¹ observed “the opinions and theories of the prosecuting attorney and his or her legal staff are irrelevant” and “Knowing the facts is one thing; knowing the “case” the other side is presenting is something else, and certainly more all encompassing. Disclosure deals with the facts.”: James at para 48.

34While it may well be that the “analysis, comments, and opinions of investigators or counsel” could ordinarily be of use to the defence, this does not make them potentially relevant for the purpose of disclosure. General propositions in the case law about required disclosure are better understood in this context.

35In James, the appeal panel further observed at para 39 that “[h]owever phrased, the requisite standard of relevance must be assessed by reference to the substantive issue for which production or disclosure is said to be useful.” The requirement that “information gathered during an investigation” is disclosable is the ordinary disclosure requirement for the Law Society.

36There are cases where additional disclosure is required. The James panel cited cases in which there was “a more specific issue”. In submissions, Mr. Harris referred to R. v Forde, 2011 ONCJ 293, which is, in my view, an example of disclosure on the basis of a more specific issue.

37In Forde, the defence sought police “policies, procedures, and educational materials regarding Identification evidence and photo line-ups” on the basis of its position that “the Identification procedure undertaken by the investigating officers was fatally flawed and unreliable”. Justice Harris accepted that the defence was entitled to further disclosure given the specific position being taken. Because of the basis for the request, Justice Harris ordered disclosure of information beyond information gathered during the investigation.

38To summarize, information gathered during an investigation is ordinarily potentially relevant and therefore disclosable, subject to privilege. Additional disclosure may be required if there is further information potentially relevant to a more specific issue that has arisen.

Privilege

39As well as disputing relevance, the Law Society has asserted both ad-hoc privilege in respect of CC&LSMs and solicitor-client privilege. Mr. Harris has conceded the application of ad-hoc privilege in respect of CC&LSMs but there remain issues regarding solicitor-client privilege.

40The issue of solicitor-client privilege arises because it is the Law Society’s position that Polley Faith’s retainer was a legal retainer to conduct an investigation with the result that:

The communications between the Polley Faith lawyers and Law Society staff fall squarely within the continuum of communications that is protected by solicitor-client privilege.

41It is not in dispute that the continuum of communications in which a solicitor renders legal advice is protected by solicitor-client privilege: Currie v Symcor Inc., 2008 CanLII 37901 (ON SCDC).

42As Justice Major said for the court in Pritchard v Ontario (Human Rights Commission), 2004 SCC 31 at para 16:

Generally, solicitor-client privilege will apply as long as the communication falls within the usual and ordinary scope of the professional relationship. The privilege, once established, is considerably broad and all-encompassing ….

The scope of the privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct: ….

43The concept of “legal advice” is not to be unduly narrowed. As said in Ontario (Ministry of Community and Social Services) v Cropley, 2004 CanLII 11694 (ON SCDC) at para 22:

The legal advice covered by solicitor-client privilege is not confined to a solicitor telling his or her client the law. The type of communication that is protected must be construed as broad in nature, including advice on what should be done, legally and practically.

44The issue here is the application of these principles given the Law Society’s position that:

… Mr. Faith and Mr. Max were expressly retained as counsel and often provided legal advice. In many contexts, lawyers investigate the facts in order to determine whether there are grounds to commence legal proceedings. There is simply no inconsistency between acting as counsel and conducting an investigation. The communications between the Polley Faith lawyers and Law Society staff fall squarely within the continuum of communications that is protected by solicitor-client privilege.

45It is notable that the Law Society carefully asserts that Polley Faith was “expressly retained as counsel and often provided legal advice” but does not assert that Polley Faith was retained to provide legal advice. For the following reasons, this is an important distinction.

46The Law Society relies on the decision of the College of Physicians of B.C. v British Columbia (Information and Privacy Commissioner), 2002 BCCA 665 (College of Physicians of B.C.), which addressed a claim by the College that documents created in the course of its investigation of a complaint of professional misconduct were exempt from disclosure because they were subject to solicitor-client privilege.

47The issue before the BC Court of Appeal was whether the lawyer who conducted the investigation acted as an investigator or as a lawyer. Justice Levine started her analysis on this issue at para 38 citing R. v Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, in which the question of privilege arose where a lawyer acted in two capacities. Justice Levine wrote:

In R. v Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, the Supreme Court of Canada pointed out (at para. 50): “It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege.” After describing the varying functions performed by government and in-house lawyers, the Court stated:

Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

48Justice Levine then observed at para 39:

In my view, the fact that an investigation is mandated by statute is irrelevant to the functional analysis of the lawyer’s role. Lawyers must often undertake investigative work in order to give accurate legal advice. In this respect, investigation is integral to the lawyer’s function.

49Justice Levine then observed at para 41 that “In this case, the SMRC had to make legal decisions about how to proceed” and at para 42 that the lawyer “was acting on her client’s instructions to obtain the facts necessary to render legal advice to the SMRC concerning its legal obligations arising out of the complaint. As such, she was engaged in giving legal advice to her client.”²

50Justice Levine’s reasons are consistent with the more recent Ontario case of Vecchio Longo Consulting Services Inc. v Aphria Inc., 2023 ONSC 6336 at paras 64 and 67. Solicitor-client privilege depends on whether a lawyer investigator is retained to conduct an investigation or, alternatively, is retained to provide legal advice and, for that purpose, conducts an investigation.

51Based on the evidence in the case before her, Justice Levine concluded that the lawyer was retained to render legal advice concerning the legal obligations of the SMRC. Her decision flows from that finding. Her reasons do not support a general contention that investigative work undertaken by a lawyer is privileged merely because a lawyer is retained to conduct an investigation and that legal issues may arise in the course of the investigation.

52To return to Pritchard, Justice Major observed that solicitor-client privilege does not extend to communications where legal advice is not sought or offered. This is consistent with Justice Levine’s starting point that the purpose of the retainer in that case was to obtain legal advice.

53It is also worth repeating from Pritchard that solicitor-client privilege does not extend to communications where the legal advice is not intended to be confidential. Further, privilege is ordinarily waived where confidentiality is not maintained³. Where information was not intended to be confidential and, ordinarily, where confidentiality has not been maintained, information is not solicitor-client privileged.

ANALYSIS AND CONCLUSION

54I first address the question of relevance. For the following reasons, I do not accept that all communications between Polley Faith and the Law Society are potentially relevant such that, subject to privilege, disclosure is required.

55I will then address solicitor-client privilege. For the following reasons, I find as a fact that Polley Faith was not retained to provide legal advice and to investigate for the purpose of providing legal advice. Rather, I conclude that Polley Faith was retained to conduct a regulatory investigation for regulatory purposes. As a result, I conclude that solicitor-client privilege does not generally attach to all communications between Polley Faith and the Law Society.

56I accept that Polley Faith may have, from time to time during the investigation, given legal advice to the Law Society. Communications in this regard would ordinarily be solicitor-client privileged if intended to be confidential.

Relevance

57Mr. Harris’ position is that all communications between Polley Faith and the Law Society must be disclosed unless privileged. I do not accept this submission.

58Mr. Harris’ position proceeds from the premise that all communications are potentially relevant because they might be useful.

59The decisions in James and Banwell make clear that potentially relevant “’information’ gathered during an investigation” is ordinarily required to be disclosed and the “analysis, comments, and opinions of investigators or counsel” are not. There is no basis in the record before me to conclude that there is “a more specific issue” that justifies requiring disclosure beyond the “’information’ gathered during an investigation”. There is no basis to conclude that the information gathered during the investigation has not, subject to claims of privilege, been disclosed.

60As noted above, Mr. Harris indicated in his factum that some of the subject Polley Faith communications appeared to deal with the scope of the investigation and procedural steps taken (and not taken) in furtherance of the investigation.

61In the course of submissions, Mr. Harris suggested that the importance to Mr. Harris and the complexity of the allegations of misconduct in this case is such that information relating to the scope of the investigation and procedural steps taken (and not taken) should be disclosed. In effect, Mr. Harris submitted at the motion hearing that there is a “more specific issue” here as a result of importance to Mr. Harris and complexity.

62I would make two observations in respect of this submission.

63The first is that Mr. Harris appears already to have had effective disclosure of the scope of the investigation and the procedural steps taken. This is plain from a review of the disclosed investigation report and the extensive disclosure that has been made. I have no basis to conclude that disclosure of what procedural steps have been taken is not effective disclosure of what procedural steps have not been taken.

64Mr. Harris’s submission seems to amount to a claim that he is entitled to disclosure of the analysis behind the scope of the investigation and the investigative choices that were made. In effect, Mr. Harris appears to seek “analysis, comments, and opinions” regarding the investigation rather than the “facts” of what was investigated and how. For the same reasons that “analysis, comments, and opinions” regarding the information gathered in an investigation are not ordinarily disclosable, I conclude the same is true with respect to “analysis, comments, and opinions” regarding the scope of an investigation and investigative choices.

65The second is that it would be procedurally unfair, in my opinion, to require disclosure on a basis not effectively advanced in Mr. Harris’ motion materials. Mr. Harris’ materials did not address relevance other than generically. I accept the Law Society’s position that it did not have an opportunity to respond to a claim of expanded relevance because of a more specific issue because no such claim was made in the motion materials. Mr. Harris essentially assumed that all communications between Polley Faith and the Law Society were relevant.

66I am not satisfied that documents said by the Law Society in the Redaction Table to be irrelevant are potentially relevant. In reaching this conclusion, I note that the submissions were not made on a document-by-document basis. I have considered the submissions and reached a conclusion on the basis of the submissions made and on the record before me.

Privilege

67The Redaction Table contains a number of entries where the reason for redaction/​removal is only privilege. I cannot tell which of those entries are effectively addressed by the concession that ad hoc privilege applies in respect of the CC&LSM but need not make a document-by-document determination.

68I now address the Law Society’s submission that all Polley Faith’s communications are generally protected by solicitor-client privilege. I do not accept this submission for several reasons.

The retainer letter

69In support of its position, the Law Society submits that the Polley Faith retainer letter shows that Polley Faith was retained by the Law Society as a law firm to do legal work and, accordingly, that communications between Polley Faith and the Law Society are solicitor-client privileged.

70The retainer letter is from the Law Society and is dated January 10, 2020. It states at the outset that:

Further to our discussion, this will confirm that you have been retained by the Law Society of Ontario (the "Society") to investigate the complaints noted above.

and goes on to state with respect to the Purpose and Scope of Retainer

We would like you to complete the investigations commenced by the Society and to prepare the Investigation Reports. As discussed, these cases require coordination with other cases the Society is investigating and accordingly we require regular updates and discussion at key decision points. Prior to taking any investigatory steps, please provide a case plan for the investigations.

On these matters, you will receive instructions from Deborah McPhadden, Manager, Investigation Services. You may also receive instructions from Anne-Marie Kearney in her capacity as Director, Investigation Services and from me in my capacity as Executive Director of Professional Regulation.

71There is no statement in the retainer letter that Polley Faith was retained to provide legal advice nor that the investigations were to gather information for that purpose.

72The Law Society noted that the retainer letter refers to Polley Faith as counsel, provides for remuneration at the most recent tariff for outside counsel, addresses conflicts of interest and requires an expression of interest in accordance with its protocol for retaining outside counsel.

73In submissions, the Law Society’s position was that these references to counsel demonstrate that Polley Faith were retained as lawyers to do legal work and that it made sense that lawyers would be retained in the circumstances given the nature of the investigations (which involved legal work in complex transactions as well as the required professional conduct of a lawyer in the circumstances).

74Notably, the Law Society did not lead evidence from the Polley Faith lawyers nor anyone involved with their retainer from the Law Society.

75The retainer letter makes clear that the purpose and scope of the Polley Faith retainer was to “complete the investigations commenced by the Society and to prepare the Investigation Reports”. On the evidence, I do not accept that the balance of the retainer letter changes purpose and scope of the retainer. The balance appears to be little more than application of a generic retainer letter to the retainer of lawyers to do an investigation. That “counsel” were retained to investigate does not imply that the retainer was to provide legal advice nor that the investigation was to obtain information for that purpose.

76I do accept the submission that it made sense, given what was being investigated, to retain lawyers to conduct the investigation. Indeed, the Law Society investigator who started the investigation was a lawyer. His title was Senior Investigation Counsel. It makes sense that investigators would be retained who could readily understand what was being investigated. But this does not change the purpose of the investigation.

What is the purpose of a Law Society conduct investigation?

77The Law Society submits that the reasons of Justice Levine in College of Physicians of B.C. apply. I repeat that Justice Levine’s reasons were premised on her finding that the investigation in that case was to provide a basis for a legal opinion.

78For the following reasons, I conclude that the investigation conducted by Polley Faith was not undertaken to provide a basis for a legal opinion but rather to inform the appropriate exercise of regulatory discretion which might, or might not, involve a legal opinion.

79The Law Society Act, RSO 1990, c L.8 (the Act), addresses conduct and capacity investigations in s 49.3. Polley Faith was retained with respect to investigations of the conduct of Mr. Harris and other lawyers.

80Sections 49.3(1) and (2) provide that:

49.3(1) The Society may conduct an investigation into a licensee’s conduct if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.

(2) If an employee of the Society holding an office prescribed by the by-laws for the purpose of this section has a reasonable suspicion that a licensee being investigated under subsection (1) may have engaged in professional misconduct or conduct unbecoming a licensee, the person conducting the investigation may,

(a) enter the current or former business premises of the licensee between the hours of 9 a.m. and 5 p.m. from Monday to Friday or at such other time as may be agreed to by the licensee or, in the case of a former business premises, by a person with the authority to allow entry into the premises;

(b) require the production of and examine any documents that relate to the matters under investigation, including client files; and

(c) require the licensee and people who work or worked with the licensee to provide information that relates to the matters under investigation.

81Section 49.3(1) permits an investigation. Section 49.3(2) authorizes the use of certain investigative powers. The Law Society refers to satisfaction of the requirements of s 49.3(2) by saying that an investigation has been “instructed”.

82The Act does not specify outcomes for conduct investigations. However, there are a range of possible regulatory outcomes including that:

• no regulatory issue is found;
• no regulatory action is taken;
• advice on best practices is given;
• a caution is given regarding future conduct;
• other remedial action is requested, such as an undertaking;
• interim measures are sought, such as an interlocutory suspension; and/or
• referral to the Proceedings Authorization Committee (PAC), which may conclude that: i. no remedial action should be taken, ii. a formal letter of advice should be given, iii. an invitation to attend should be made, iv. a regulatory meeting should be held, or v. a conduct application should be brought.

83The purpose of an investigation under s 49.3(1) and (2) is not to provide the basis for a legal opinion but rather to provide the basis for the exercise of regulatory discretion as to the appropriate regulatory outcome. In this respect, the situation here is different than the situation found by Justice Levine in College of Physicians of B.C.

Legal issues may arise in an investigation

84This is not to say that legal issues do not arise in the course of, or as a result of, a conduct investigation.

85For example, where a conduct application is thought appropriate by the Law Society after an investigation, the Law Society may refer the matter to PAC for a review under Part VI of By-Law 11. One of the alternatives available to PAC is to authorize a conduct application.

86Section 51(1) of By-Law 11 provides that a conduct application may not be authorized “unless the Committee is satisfied that there are reasonable grounds for believing that the licensee has contravened section 33 of the Act”. This is a prerequisite on which legal advice to PAC may be appropriate.

87However, there are a number of alternatives to a conduct application that are available to PAC under s 51(1) of By-Law 11 which do not require any legal prerequisite. Further, there are a number of regulatory outcomes short of referral to PAC that are available to the Law Society that also do not require satisfaction of a legal prerequisite.

88Also, legal issues may arise during the course of an investigation when interim measures are considered. Section 49.27(1) of the Act provides that an interlocutory suspension or restriction order may not be made unless “there are reasonable grounds for believing that there is a significant risk of harm to members of the public, or to the public interest in the administration of justice, if the order is not made”. This is an issue on which legal advice may be appropriate.

89I conclude that conduct investigations under s 49.3 of the Act are not undertaken for the purpose of obtaining legal advice but rather to enable the Law Society to obtain information for the purpose of determining appropriate regulatory outcomes. Legal advice is sometimes, but not always, required depending on what regulatory outcome is thought appropriate. Legal advice is no doubt sometimes needed by the Law Society in the course of the investigation. Police similarly can require legal advice in criminal investigations: Campbell, at paras 49-50. But this does not mean that everything done by investigative counsel attracts solicitor-client privilege: Campbell at para 50.

Conclusions as to privilege in respect of the Polley Faith communications with the Law Society

90It follows, both for lawyer investigators who are employed by the Law Society and external counsel who are retained to investigate conduct matters, that their communications with the Law Society are not generally solicitor-client privileged but that privilege will attach to communications in respect of legal advice. Using lawyers to investigate complex legal matters is no doubt useful. Obtaining legal advice, where appropriate, from the same lawyers is no doubt useful. But using lawyers to investigate conduct matters does not cloak conduct investigations with solicitor-client privilege.

91As said above, Pritchard instructs that the scope of the solicitor-client privilege does not extend to communications where legal advice is not sought or offered or where the communication is not intended to be confidential.

92I have concluded that solicitor-client privilege does not extend generally to communications between a lawyer investigator and the Law Society in conduct investigations because the purpose of a conduct investigation is not to provide legal advice. But I also recognize that communications may be privileged where the Law Society obtains legal advice from a lawyer investigator.

93There are also situations where legal advice is provided by a lawyer employee to the Law Society in the context of a conduct investigation. The employed lawyer may well require information from the investigator (who may be a lawyer) in order to provide legal advice. This appears to have occurred here. It follows that these communications would also be solicitor-client privileged. It is also possible that legal advice could be jointly provided to the Law Society by a legal advisor and a lawyer investigator which would also attract solicitor-client privilege.

94When the Polley Faith investigation report was delivered to the Law Society, it would have been reasonable to expect that the Law Society would refer the matter to PAC and that PAC would authorize a conduct application. A conduct application must have been very likely given the contents of the investigation report.

95The practice of the Law Society is to disclose investigation reports when conduct applications are brought and, accordingly, it would have been reasonable to expect that the Polley Faith investigation report would be disclosed to Mr. Harris if a conduct application was brought. In any event, the report was in fact disclosed to Mr. Harris. It is now on the public record as an exhibit.

96While it may be otherwise in cases where a conduct investigation is not brought, confidentiality of the Polley Faith investigation report either was not intended or has been lost. Whether because confidentiality was never intended or by waiver, there cannot now be solicitor-client privilege in the investigation report or in underlying investigative communications.

97However, this does not mean that undisclosed legal advice, and related communications, provided during the course of the investigation are no longer privileged.

98Accordingly, I conclude that the communications between Polley Faith and the Law Society are not generally solicitor-client privileged but that communications relating to specific undisclosed legal advice may well be solicitor-client privileged. Given the nature of Mr. Harris’ motion and the submissions of the parties, it is difficult to be more definitive in respect of specific communications.

Conclusions as to privilege in respect of communications with Elwood Evidence

99While not the subject of oral submissions at the motion hearing, communications with Elwood Evidence were addressed in the motion materials.

100What was not disclosed to Mr. Harris were communications between another lawyer whose conduct was also investigated and her client. Assuming solicitor-client privilege applies, it is not clear that Mr. Harris is entitled to disclosure of these communications for the reasons set out in Law Society of Ontario v Cadogan, 2026 ONLSTH 20 at paras 53-57. As no submissions were made in respect of Mr. Harris’ entitlement to disclosure of privileged communications obtained in the investigation of the conduct of another lawyer where Mr. Harris was not part of the “circle of privilege,”⁴ I dismiss the motion in respect of these documents but with leave to bring a further motion.

ORDER

101For these reasons, I dismiss Mr. Harris’ motion for an order directing the Law Society to produce unredacted copies of the entirety of the Polley Faith productions, excepting those communications with discipline counsel with carriage of this application.

102To the extent that the Law Society does not assert in the Redaction Table that Polley Faith communications are irrelevant and claims privilege only on the basis that investigative communications were generally privileged, I direct the Law Society to disclose those communications.

103To the extent that the Law Society does not assert in the Redaction Table that Polley Faith communications are irrelevant but claims privilege on the basis that the communications were privileged because those communications were in respect of specific legal advice, I direct that the Law Society identify those communications in accordance with Tribunal Rule 10.1. Mr. Harris is free to move for a disclosure order in respect of any such identified communications.

104I reserve the costs of this motion to the hearing panel in this application.

Footnotes

1. 1The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D. was the Chair of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions. The committee’s 1993 seminal report is commonly referred to as the “Martin Report”: R. v McNeil, 2009 SCC 3 at paras 23-24.
2. 2The SMRC is the Sexual Misconduct Review Committee.
3. 3That disclosure of privileged information ordinarily amounts to waiver of privilege explains the rationale of s 49.8(3) of the Law Society Act.
4. 4The phrase “circle of privilege” is used in R. v Fox, 2026 SCC 4 at para 67(iii), and R. v Basi, 2009 SCC 52.