Is The Amount Of Fees Billed By A Lawyer Protected By Lawyer-Client Privilege? The Latest Twist In The Kalogerakis Case

The issue of whether or not the amount of legal fees incurred by a party is privileged, which seem rather straightforward, has sparked a great deal of debate over the last few years, most recently before the Quebec Court of Appeal in the matter of Kalogerakis v. Commission scolaire des Patriotes1.

Factual context and procedural history

This appeal involved two cases, joined together, that had initially been heard by Quebec's access to information commission (the "Commission").

In the first case, the plaintiff sought to learn the amount of legal fees incurred by the respondent school boards in defending against a class action involving screening measures for dyslexia and teaching methods adapted for students with learning disorders. In the second case, a private citizen wanted to find out the amount of legal fees paid by a municipality in defending against a civil liability lawsuit involving police ethics that he himself had instituted against it.

Both cases were based on the Act respecting access to Documents Held by Public Bodies and the Protection of Personal Information2 and involved situations where the applicant's request for information was denied on the grounds that the amount of billed legal fees was protected by solicitor-client privilege.

In 2012 the Commission decided that a lawyer's accounts for services rendered were part of the solicitor-client relationship and were thus covered by solicitor-client privilege. Its decision was however overturned in May 2014 by the Court of Québec, which held that the solicitor-client privilege did not apply in these instances3.

However, the matter did not end there, as the applicants applied to the Quebec Superior Court for judicial review of the Court of Québec's decision. In October 2015 the Superior Court overturned that decision and reinstated the Commission's decisions to the effect that the amount of professional fees billed by lawyers is covered by professional secrecy4.

The decision and reasoning of the Court of Appeal

In the latest development in the proceedings, the Quebec Court of Appeal rendered a decision in the matter on August 22, 2017. It overturned the judgment of the Superior Court and reinstated that of the Court of Québec, concluding that the solicitor-client privilege does not apply to the amount of lawyers' fees.

The Court stated in its decision that each case is unique and requires an analysis of the facts specific to it. The Court then proceeded to make that...