Canada: 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 analysis using the following two-step test for deciding questions involving professional secrecy: 

  1. Determine the scope of the professional secrecy privilege in order to ascertain whether the information sought to be obtained is covered by it. In this regard the Court stressed both the fundamental nature of the privilege as enshrined in Quebec's Charter of Human Rights and Freedoms5, and the Supreme Court of Canada's decision in Foster Wheeler6 to the effect that not every aspect of an attorney-client relationship is necessarily privileged.
  2. If the first step indicates that the information is covered by the privilege, determine whether the instant case is one of those rare instances where lifting the privilege and disclosing the otherwise protected information is justified.  

The Court of Appeal's analysis of the relevant case law and of the previous decisions in this matter makes it easier to understand how four adjudicative bodies managed to arrive at different results in this case. The Court first of all decided that the "correctness" standard of judicial review applied to the decision of the Commission7. That being said, what really attracted our attention was the requirement to use a step-by-step approach. The Court stated that the first step consisted of determining what are the elements covered by professional secrecy as it pertains to the presumption of confidentiality associated with the solicitor-client relationship, and not to proceed to the next step of deciding whether there are exceptional aspects of the case that would justify an exemption from the general rule unless those elements are present. The Court pointed out that, to the extent that professional secrecy is not at issue, there is no need to consider the exceptions to the solicitor-client privilege.8

While the Court of Appeal's contextual analysis concerned the application of the professional secrecy of a lawyer to the specific and limited case of the amount of legal fees incurred by a party, it nevertheless remains that the Court's reasoning will undoubtedly serve as a precedent for several other pending cases9. We also note an important distinction in this instance, namely that what was at issue were legal fees paid by public bodies, which are accountable towards those they serve10

Given the number of ruling reversals and the divergent positions of the various levels of adjudicative authority having heard this case, it will be interesting to see whether the parties file an appeal of this latest decision before the Supreme Court of Canada. 

The authors would like to thank the Honourable Paul-Arthur Gendreau, Counsel, for his contribution to the preparation of this article.


1 Kalogerakis v. Commission scolaire des Patriotes, 2017 QCCA1253

2 CQLR, c. A-2.1

3 Kalogerakis c. Commission scolaire des Patriotes, 2014 QCCQ 4167. Regarding this decision of the Court of Québec, we invite you to consult the article written by the authors of this article in July 2014:

4 Commission scolaire des Patriotes v. Quenneville, 2015 QCCS 4598


6 Foster Wheeler Power Co. v. Siged, [2004] 1 SCR 456

7 Supra note 1, pars. 13 to 19

8 Ibid, par. 29 et seq.

9 Ibid, par. 38 et seq.

10 Ibid, par. 41 et seq.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jessica Syms
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions