A recent decision of the Ontario Superior Court has said just that, that privilege applies to protect your trust ledgers from disclosure. See Sakab Saudi Holding Company et al v. Saad Khalid S Al Jabri et al, 2024 ONSC 1601 (CanLII)
In Sakab, the plaintiffs sought an order requiring the defendant to produce:
… trust ledgers from any law firm in respect of funds received and sent from June 21, 2017 to date in relation to funds received for legal purposes and non-legal purposes and funds currently held in trust …
In answering this question, the Court first asked whether a lawyer’s trust ledgers are presumptively privileged. Relying on two Supreme Court of Canada decisions, the Court concluded that the trust ledgers of law firms representing the defendants are accounting records that contain administrative information relating to the lawyer and client relationship and, therefore, are presumptively protected from disclosure by solicitor-client privilege. Accordingly, the plaintiffs bear the onus of proving that disclosure of the requested information is not subject to solicitor-client privilege.
The Court then dealt with the question of whether the plaintiffs rebutted the presumption of privilege and concluded they did not.
At this point, the Court also dealt with partial disclosure. In declining to order partial disclosure of monies in and out of the accounts for non-legal purposes, the Court stated:
If disclosure of information from trust ledgers of payments for non-legal purposes would lead to disclosure of confidential information concerning amounts held and payments made for legal purposes, production of the trust ledgers, even if redacted, would disclose information that is privileged.
The Court then considered the crime / fraud exception to privilege as the claim was for civil fraud. The Court distinguished between civil and criminal fraud, the case before it being the former and concluded, based on the 2022 Ontario Superior Court decision in Wintercorn v. Global Learning Group Inc., 2022 ONSC 4576 (CanLII) , that the exception does not apply to civil fraud.