In D.L. v. Autorité des marchés financiers (AMF), the Superior Court of Quebec ruled on solicitor client privilege claims made by D.L. to resist disclosure of documents seized by the AMF at D.L.’s home in the context of an ongoing pump and dump investigation.
The Court recalled the following principles:
- The burden of establishing solicitor client privilege giving rise to an immunity from disclosure rests on petitioner D.L.
- Solicitor client privilege protects from disclosure communications pursuant to which legal – but not business – advice is given by a lawyer to his.her client and, depending on the circumstances, third parties if they share a common interest with the client
- Solicitor client privilege protects from disclosure communications between a lawyer and his.her client even if they do not contain legal advice insofar as they are part of a continuum of communications arising out of a complex and prolonged mandate given to the lawyer by his.her client
- Documents disclosing fees and disbursements of a lawyer are presumed covered by solicitor client privilege
- The burden of establishing solicitor client privilege giving rise to an immunity from disclosure can be discharged through simple or summary evidence, such as affidavit or testimonial evidence, establishing :
- the existence of a lawyer-client relationship as between identified individuals
- the nature and scope of the mandate given to the lawyer
- if a third party is included in the communications under review, the existence and scope of any common interest with the client
In this case, petitioner D.L. chose to offer no evidence to the Court in support of his privilege claims, relying instead solely on the documents seized themselves.
The Court highlighted the difficulties resulting from this choice, as many documents appeared “nebulous” when looked at without any explanation, particularly those relating to a specialized field. As a result, the following documents were held not to be protected by solicitor client privilege:
- Communications involving lawyers pursuant to which legal advice was not given
- Cheques or documents evidencing fund transfers involving lawyers in the absence of any indication that they served to pay legal professional fees or disbursements
- Communications with third parties even if involving lawyers or containing legal advice
- Commercial or financial contracts
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