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Here are their February updates – English
What’s Hot on CanLII? 
– February 2026
Each month, we tell you which three English-language cases and French-language cases have been the most viewed* on CanLII in the previous month and we give you a small sense of what the cases are about.
For this past month, the three most-consulted English-language decisions were:
1. R. v. Fox, 2026 SCC 4
[1] The main issue on this appeal is whether a lawyer charged with a criminal offence can invoke the “innocence at stake” exception to solicitor-client privilege recognized in R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, and R. v. Brown, 2002 SCC 32, [2002] 2 S.C.R. 185, to seek access to their client’s solicitor-client communications for use in their own defence. Under this exception, solicitor-client privilege may be set aside in rare circumstances to allow an accused to make full answer and defence to a criminal charge. A second issue is whether evidence in this case that was obtained in a manner that breached s. 8 of the Canadian Charter of Rights and Freedoms should be excluded under s. 24(2). The evidence consists of the non-privileged part of a phone call between a lawyer and her client, which formed part of a longer call that included privileged communications. The s. 8 breach arose when state authorities violated the terms of a wiretap authorization that required them to stop listening immediately if they reasonably believed that a lawyer was a party to the communication.
[2] For the reasons that follow, I conclude that a lawyer can invoke the innocence at stake exception to solicitor-client privilege recognized in McClure and Brown to seek access to their client’s privileged communications for use in their own defence. The procedure outlined in McClure and Brown can readily be adapted for this purpose. Moreover, I agree with the majority of the Court of Appeal for Saskatchewan that the evidence in this case was obtained in a manner that breached s. 8 of the Charter and should be excluded under s. 24(2). Accordingly, I would dismiss the appeal.
[…]
[89] The purpose of s. 24(2) of the Charter is “to maintain the good repute of the administration of justice”, which “embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole” (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 67). The phrase “bring the administration of justice into disrepute” must be “understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system” (para. 68). The analysis under s. 24(2) starts from the premise that a Charter breach has already damaged the administration of justice and “seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system” (para. 69). The focus of s. 24(2) is societal, targeting systemic concerns rather than punishing the police or compensating the accused (para. 70).
[90] The analysis under s. 24(2) proceeds in two stages. First, the court considers a threshold requirement, which asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. The threshold requirement involves a generous and purposive approach to examining the entire chain of events involving the Charter breach and the impugned evidence and asks whether they were part of the same transaction or course of conduct. The connection between the Charter breach and the impugned evidence can be temporal, contextual, or causal, or a combination of all three. Although a causal connection is not required, the connection should not be remote or tenuous. Each case must be considered on its own merits; there is no rigid rule as to what sort of connection is too remote or tenuous (see R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38;R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 78;R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 96).
[91] Second, if the threshold requirement is met, the court considers an evaluative component, which asks whether admitting the evidence would bring the administration of justice into disrepute. The evaluative component involves balancing three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits (Grant, at para. 71; Beaver, at paras. 94 and 116; Tim, at para. 74). The balancing is a qualitative exercise and does not involve mathematical precision (Grant, at paras. 86 and 140; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Beaver, at para. 117).
(Check for commentary on CanLII Connects)
2. 2357596 Alberta Ltd v Antoniuk, 2026 ABKB 81
[1] 2357596 Alberta Ltd. (“the Appellant”) applied to an Applications Judge to discharge a caveat. The caveat is registered as instrument number 4387AI (the “Caveat”) against the title to properties legally described as Plan 2803AF, Block 109, Lots 6 and 7 (the “Site”). The Site is located in the Glenora neighbourhood in Edmonton. The Applications Judge dismissed the application. The Appellant now appeals that decision to this Court. The Respondents in this case are 65 residents of the Glenora neighbourhood, all of whom own property in Glenora that is subject to the Caveat. 67 residents are named in the style of cause but two of these Respondents have since sold their home.
[…]
[12] According to the book, Old Glenora, which is attached to the affidavit of Barbara Finlay, a Glenora resident since 1976, whose property is subject to the Caveat, the Caveat originated with Mr. James Carruthers. Mr. Carruthers envisioned a prestigious subdivision and to secure this aim, placed the Caveat on his property in 1911. The Caveat set down certain requirements and prohibitions to which the subdivided lots were subject.
[13] The Glenora Historic Resources Inventory prepared in June 2017 (the “Inventory”) (attached to the affidavit of Wendy Antoniuk, the President of the Old Glenora Community Conservation Association and a resident of Glenora, whose property is subject to the Caveat) describes the Caveat as “ensuring that only the finest houses would be built in Glenora and that the neighbourhood would become one of the most popular locations for the professional and commercial elite who sought their own company amid its imposing dwellings”.
[14] The essential terms of the Caveat are as follows:
• No building of any kind other than a private dwelling house with appropriate offices and outbuildings may be erected on the land;
• Not more than one dwelling house shall be erected on the land although two houses may be erected on the land provided they are separated by not less than 25 feet;
• No trade or business of any kind shall be carried out on any part of the land;
• No part of the land shall be used as a place of public entertainment, amusement or resort;
• Buildings must be set back at least 25 feet from the front street or road; and
• The house shall be either detached or semi-detached and the amount spent on the building of the house shall be not less than $3,000 to $5,000 (in 1911 dollars) depending on the location of the lot in the subdivision plan.
[15] The Caveat is registered against approximately 400 to 500 properties in the Glenora neighbourhood. The Caveat restricts the use of the Site, and all properties that it is registered against to single family dwellings. However, the Caveat does not prevent subdivision and lots may be subdivided in two to allow for “skinny” homes to be built. Further, the Caveat permits duplexes. The Caveat excludes commercial development in Glenora.
(Check for commentary on CanLII Connects)
3. Will Murray & Associates v. Nader Fakih, 2026 ONSC 657
[1] “These peasants owe me money still so I’m taking their bail money.” When a lawyer sends an email like this, it speaks volumes. That lawyer cannot hide behind solicitor-client privilege to avoid discovery in the face of allegations of misconduct.
[2] This is a motion about whether the specific documents requested by the Plaintiff law firm should be produced by the Defendant (a former lawyer at the firm), or whether they are subject to solicitor-client privilege.
[3] For the reasons that follow, this motion is granted, and the Defendant shall serve a sworn/affirmed affidavit of documents, and the documents requested in the Plaintiff’s motion.
[…]
[74] In Pomer v. Zeppieri (1992) 1992 CanLII 7550 (ON SC), 8 O.R. (3d) 215 (S.C), an action between former law partners for an accounting of the profits of the firm, the plaintiff wanted to see the files taken by the defendant in order to determine the profits made from them. The defendant argued that solicitor-client privilege prevented the plaintiff from seeing them. The court distinguished Kupfersteinbecause in Pomer both parties had at one time been entitled to see the files, and the dissolution of the partnership did not change that. The plaintiff was accordingly entitled to see the files, including the portions of them that accumulated after the dissolution of the partnership.
[75] Lazare v. Bancroft, [1994] B.C.J. No. 3125 (Prov. Ct.) was an action by a former associate of a law firm for compensation based on a percentage of billings. The defendant refused to produce her billing records, based on privilege. Full production was accordingly ordered, and the Court held:
It struck me as illogical that the documents Mr. Lazare now seeks might be privileged as against him, where many of them would previously have been producible according to the billing arrangement as outlined by the defendant’s own affidavit, and the rest would at very least have been accessible to him by virtue of their having shared office space…
Finally, there must in my view be an implied understanding amounting to a waiver by the client that a lawyer’s associates (and indeed, accountant or bookkeeper) will have access to the billing information and timesheets pertaining to the file.
[76] Following the approaches in Pomer, Lazare¸and Weary, I reject Mr. Fakih’s argument that the issue is a matter of waiving privilege for the following reasons:
- The Firm was in a solicitor and client relationship with the clients. If it weren’t for Mr. Fakih’s inappropriate management of the files, including secretive communications, the Plaintiff would have access to these files already.
- There is an implied exception to the privilege rule that allows disclosure of the files in the ordinary course of the lawyer’s business, as long as there is a reasonable expectation the privilege will be protected, and this is such an occasion.
[77] Therefore, in my view, the issue is not one of waiving privilege as between the parties. The privilege will be maintained even though the documents are to be produced as between the parties.
Read on for French updates
