Executive Summary: Key Legal and Evidentiary Issues

• Partial leave to appeal was granted due to uncertainty around the application of solicitor-client privilege in cases involving alleged civil fraud.

• The court recognized conflicting case law on whether evidence of civil fraud justifies overriding privilege protections.

• Consideration was given to the potential overlap between civil and criminal fraud elements, including intent and act.

• Ongoing appeal in a related case (Sakab Saudi Company v. Al Jabri) may influence the outcome of this matter.

• Dispute arose over the admissibility of photos of private documents taken without consent within a domestic relationship.

• Leave to appeal was denied on the issue of disqualifying the wife’s lawyer from acting further.

Facts of the case

Eva Elise Kalisz brought a motion for leave to appeal a decision made by Justice Nakonechny on March 21, 2025. The dispute arises in a context involving domestic parties and centers on the admissibility of certain evidence—specifically documents that may indicate fraudulent conduct, and whether such documents are protected by solicitor-client privilege or inadmissible due to privacy violations. Kalisz’s position was that some of the materials—despite privilege claims—ought to be producible due to their evidentiary relevance to alleged misconduct. The responding party, Thomas Agnew Rolfe, opposed the motion, raising concerns around both privilege and privacy.

Legal issues raised

A primary issue was whether solicitor-client privilege can be set aside when documents suggest an intent to commit fraud, especially where the alleged fraud is civil rather than criminal in nature. The motion judge had relied on a previous decision of the same court, Sakab Saudi Company v. Al Jabri, where similar concerns arose. That decision is now under appeal, which leaves the law in flux.

Another legal issue involved photos of documents obtained by Kalisz, allegedly taken in breach of her husband’s privacy. The court was asked to consider whether the public interest in exposing potential fraud could outweigh the violation of privacy that occurred during the collection of such evidence.

Finally, the court was asked to determine whether Kalisz’s legal counsel should be removed from the record due to her alleged involvement in or knowledge of the improper acquisition of documents.

Outcome of the motion

The Divisional Court granted the motion for leave to appeal in part. It acknowledged that there is judicial uncertainty regarding how far solicitor-client privilege can be pierced in cases of civil fraud and how closely civil and criminal fraud may align in terms of legal standards. This warranted appellate review.

However, leave to appeal was denied on the issue of removing the wife's lawyer as counsel of record. The court did not find that this aspect of the decision merited further appellate consideration at this stage.

Costs of the leave application were left to the panel hearing the full appeal, with a fixed amount of $5,000 set for costs purposes. The case remains influenced by the pending outcome of the Sakab Saudi Company appeal, which may help clarify the law moving forward.