5.11: Order for record to be produced

Case Summary

The Appellant, Alberta Adolescent Recovery Centre Society (“AARCS”) applied to the Court of Queen’s Bench to have the Respondents, Ms. Sparks and her lawyer produce their communications on the basis of the future crimes and fraud exception to solicitor-client privilege. The Application was dismissed, and AARCS appealed to the Court of Appeal. On Appeal, AARCS requested in the alternative that the Court of Appeal exercise its jurisdiction under Rule 5.11 to inspect the communications over which solicitor-client privilege was claimed.

The Court of Appeal held the appropriate procedure for determining whether the future crimes and fraud exception to solicitor-client privilege applies would be to first make the records available for inspection by a Justice. Furthermore, before the Court could Order the inspection of allegedly privileged communications, there must be a sufficient evidentiary basis to support an inference that would justify the exception to solicitor-client privilege. AARCS would have to show that there was sufficient evidentiary basis to give colour to the allegation that Ms. Sparks approached her lawyer with a view to facilitating future unlawful conduct.

The Court of Appeal held that there was a sufficient evidentiary basis based on the evidence on the record. The Court therefore allowed the Appeal and the Respondents were required to produce records of any communications between them in relation to the allegedly unlawful conduct for inspection by a Justice of the Court of Queen’s Bench.

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