Federal Appeal


Evidence

PRIVILEGE
Solicitor-client privilege does not apply to accounting records

Federal Court Judge found that appellant lawyer did not comply with requirement for information provided to him by respondent Minister of National Revenue pursuant to enforcement proceedings under Income Tax Act (Can.). Canada Revenue Agency sought complete statement of lawyer’s income and expenses, current accounts receivable listing and copies of bank statements. Lawyer raised shield of solicitor-client privilege to protect basic information regarding accounts receivable, claiming clients’ names and amounts owing were protected, but argument not accepted. Lawyer’s appeal allowed in part. Solicitor-client privilege is fundamental tenet of legal system, but not absolute. Privilege belongs to client and can only be asserted or waived by client. Privilege does not attach to communications in which legal advice neither sought nor offered or where communication not intended to be confidential. Solicitor-client privilege protects client names only where identity of client constitutes foundation of retainer or essence of consultation; client names not per se privileged. Privilege distinct from, and narrower than, duty of confidentiality. Solicitor-client privilege does not apply to accounting records and supporting vouchers and cheques. Moreover, lawyer failed to establish privilege on balance of probabilities. Judge’s finding that there was nothing to suggest any client’s name required protection of privilege fully supported by evidence. Minister seeking purely factual information consisting of names of clients and amounts of money owed by clients individually. Judge did not err in finding this information not subject to solicitor-client privilege. Nor was there interference with any rights in relation to privilege contrary to Canadian Charter of Rights and Freedoms. While client names not always privileged, possible some clients’ names protected by solicitor-client privilege. Clients should have opportunity to assert privilege and lawyer should have opportunity to lay proper evidentiary foundation on their behalf. Judge should have fashioned remedy addressing critical issue of privilege before making order. Matter returned to federal court for new hearing on question of accounts receivable listing.

Thompson v. Minister of National Revenue (Aug. 29, 2013, F.C.A., J.D. Denis Pelletier J.A., Johanne Trudel J.A., and Robert M. Mainville J.A., File No. A-515-12) 230 A.C.W.S. (3d) 736.

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