In re Playfair Developments Ltd., 85 DTC 5155, [1985] 1 CTC 302 (S.C.O.)

Galligan, J:—This is an application pursuant to section 232 of the Income Tax Act, RSC 1970, c 1-5, to determine whether certain documents seized from the offices of Messrs Perry, Farley and Onyschuk, by persons authorized by the Minister of National Revenue, are to be returned to the solicitors as being privileged or irrelevant to the inquiry, or are to be turned over to the Minister as being non-privileged and relevant to the inquiry.

A preliminary issue was raised as to whether or not I had jurisdiction to deal with the relevance of certain documents or whether I was restricted to determining whether or not the client has solicitor/client privilege in respect of them. Counsel advised me that there were conflicting decisions upon that question. I indicated to them that it appeared to me from a plain reading of subparagraph 232(5)(b)(i) that I only had jurisdiction to determine the question of solicitor/ client privilege. The parties then asked me, rather than deciding whether my jurisdiction was so restricted to indicate in the course of my reasons what documents appeared to me to be irrelevant. They thought that perhaps, based upon that opinion, they could discuss with their respective clients whether there was any need for a further legal proceeding to determine the relevance of those documents.

As a result of that understanding I will express my preliminary opinion upon the relevance of certain documents. I will not do so in the depth I would if I felt I had jurisdiction to pass upon their relevance.

The essential part of the requirement for production served pursuant to subsection 231(3) of the Act provides as follows:

For purposes related to the administration or enforcement of the Income Tax Act, pursuant to the provisions of Subsection 231(3) thereof, I hereby require from you the production of all file indices, letters, notes, correspondence, books, accounts, invoices, statements (financial or otherwise), agreements, documents, evidencing deeds, and any other material in your possession or under your control, having either a direct or indirect bearing on:

(a) the incorporation of Playfair Developments Limited (hereinafter called Playfair)

(b) the share structure, share ownership, capitalization and financing of Playfair since inception

(c) the lending of funds to Playfair on March 13, 1976 by Parfindus Etablissement (Parfindus) and Chanex Etablissement (Chanex), two companies incorporated under the laws of the Principality of Liechtenstein

(d) the issuance on March 31, 1976 of 46,000 Class “A” preferred shares, ie 23,000 to Parfindus and 23,000 to Chanex

(e) the transfer of the funds referred to in (c) from the Liechtenstein companies to Playfair

(f) negotiations between Brian B Freeman and the Canadian Imperial Bank of

Commerce to obtain financing or loans either for himself or for Playfair

(g) the assets and liabilities of Playfair but without restricting the generality of the foregoing, specifically the purchase from Cutaia Investments Limited by Brian B Freeman and Bohdan S Onyschuk as Trustees for Playfair of the property located at 25 Main St West in Hamilton, Ontario, known as the IBM Building

(h) the transfer of funds by Playfair to or on behalf of Parfindus and/or Chanex in the years 1976 through 1981

(i) any business connection, relationship, or employment or agency agreement involving Playfair and/or Brian B Freeman on the one hand and Robert E Mann and/or R E Mann Agencies Limited on the other

(j) any arrangement, agreement, compact or undertaking of any kind whatsoever, related to any of the matters listed above, between any person or company named above, and any or all of the following persons:—

Bohdan S Onyschuk

Umberto Casalegno

Ercole Doninelli

Antonio Escher

Franco Pettazzi

Ottavio (Tito) Riccadonna

Saverio Schiralli

Saverio Schiralli Agencies Limited

Largo Solindi

It is clear from the material before me that the real issue relates to the documents relating to the involvement of the named persons in the purchase of a property in Hamilton known as the IBM Building from Cutaia Investments Limited. It seems to me that transaction is the lynch pin of relevance.

Counsel appearing in this matter have done a formidable job of organizing the material so that the task of making the necessary rulings on this application has been made much less difficult than it might have been. The applicant has filed a factum with Schedule C attached listing the documents which are in dispute between the parties. I have made a number of handwritten amendments to that document, all at the request of, and with the concurrence of, counsel. I propose to give my rulings by reference to the headings and sub-headings set out in the schedule, and I propose as closely as possible to follow the order of the documents as set out in it.

I say at the outset that counsel for the applicant abandoned the claim for privilege to certain of the documents, namely: 120, 93, 107, 163d, 165b, 508, 205, 206a, 220, 296, 298 and 487. Those documents shall be delivered to the respondent pursuant to the provisions of subparagraph 232(5)(b)(ii).

Throughout these reasons where I rule a document to be privileged it is to be taken that I order its delivery to the applicant. And likewise when I rule a document not to be privileged it is to be taken that I order its delivery to the person designated by the Deputy Minister.

My rulings will now follow according to the headings and sub-headings contained in Schedule C to the applicant’s factum.

ACCOUNTING DOCUMENTS

Memos/Notes to/from Accounting Department

Paragraph 232(l)(e) of the Act provides that an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be a communication covered by solicitor/client privilege.

The documents under this heading are 18 in number, commencing with document number 73 and concluding with document number 582C. All of the documents are written communications between personnel in the solicitor’s office relating to the application, disbursement or use of certain funds belonging to the client. For example, certain of them are memos from a solicitor to the accounting department directing that certain funds held on the client’s account be invested in short term interest-bearing securities. Others direct that certain funds received from the client be applied against certain receivables. Counsel for the applicant contended that those communications are inter-office communications relating to the client’s affairs and are prima facie privileged. Counsel for the Deputy Minister said that they are not and relies upon the judgment of the Divisional Court in Ontario Securities Commission v Greymac Credit Corporation, 41 OR (2d) 328 at 337, where the following appears:

. . . Evidence as to whether a solicitor holds or has paid or received moneys on behalf of a client is evidence of an act or transaction, whereas the privilege applies only to communications. Oral evidence regarding such matters, and the solicitor’s books of account and other records pertaining thereto (with advice and communications from the client relating to advice expunged) are not privileged, and the solicitor may be compelled to answer the questions and produce the material.

It may be helpful to ask in such a case whether the client himself if he were the witness, could refuse on the ground of the solicitor-and-client privilege to disclose particulars of a transaction directed by him through his solicitor’s trust account. The fact that a client has paid to, received from, or left with his solicitor a sum of money involved in a transaction is not a matter as to which the client himself could claim the privilege, because it is not a communication at all. It is an act. The solicitor-and-client privilege does not enable a client to retain anonymity in transactions in which the identity of the participants has become relevant in properly constituted proceedings.

In this case the act of what is done with the client’s funds is not privileged because of the provisions of paragraph 232(1 )(e) of the Act. Thus the problem which arose in Greymac is not present in this case. The Deputy Minister has available all of the accounting information as to the transactions in the solicitors’ accounts. The accounting records will show what money was received from the client and what was done with it. It seems to me that instructions given by solicitors to the accounting department which resulted in various financial activities that are recorded in the accounts do not fall within the meaning of “accounting record” or any “supporting voucher or cheque”. Nor do I think that they form any part of the financial transactions themselves. It is my opinion therefore that all of those inter-office communications are privileged and I so rule.

Duplicate Cheque Requisitions

This sub-heading relates to five documents beginning with document number 148 and ending with document number 377. As the sub-heading suggests, these are duplicates of cheque requisitions which are located in the solicitors’ working files rather than in the accounting department records. In my opinion the cheque requisitions themselves would clearly be a supporting voucher for a lawyer’s accounting record. It would seem to me that a duplicate kept in the lawyer’s general files rather than in the accounting department would fall into the same category. Accordingly all of the documents in this sub-heading are in my opinion not privileged.

Cheque Stubs

Under this sub-heading there are two documents: document number 14% and document number 150b. These two documents are perforated slips that were originally attached to cheques. For some reason before the cheques were sent from the solicitors’ office these two stubs were removed and found their way into correspondence files. It appears that according to the accounting records of these solicitors, copies of those cheque stubs remain with the accounting department and would not be privileged. In my view neither would the original stubs which happened to be retained in the solicitors’ files. I hold that they are not privileged.

Invoices to Perry, Farley and Onyschuk

Documents numbered 13 and 193b are two invoices submitted to the solicitors for services rendered to them by persons on behalf of the client. In my opinion they are clearly supporting vouchers to accounting records and no privilege can attach to them. I hold that they are not privileged.

Client Letters and Memos

This sub-heading contains 15 letters and memoranda beginning with document 192 and concluding with document number 582b. They need not be discussed in any detail. They are letters or memos to and from the client relating to accounts. Largely they are covering letters when a cheque was sent in payment of an account. While obviously the entry of a cheque into the solicitors’ accounts is not privileged I cannot see how letters or memoranda covering the transmission of the cheques from client to solicitor or the solicitor’s acknowledgement of receipt can form any part of lawyer’s accounting records. In my opinion all of the documents under this sub-heading are privileged and I so rule.

Miscellaneous

The documents under this sub-heading were originally eight in number, beginning with document number 120 and ending with document number 154ee. As noted above, counsel conceded that document number 120 is not privileged.

Document number 426b is an account and a solicitor’s reconciliation of their disposition of certain funds in the trust account. In my opinion neither the letter nor the trust statement are part of the accounting records and are privileged.

Document number 553b is simply a letter from the client to the solicitors enclosing a cheque to pay an interim account, together with a photocopy of the cheque. In my opinion the letter itself is not a part of the accounting record and is privileged. However, in my opinion the photocopy of the cheque could be said to be a part of the accounting records and I rule that it is not privileged.

Document number 529b is an inter-office memorandum from a solicitor in the firm to the accounting department instructing how certain funds of the client are to be handled. For reasons given in respect to the sub-heading “Notes, Memos to/from Accounting Department”, it is my opinion that that inter-office communication is privileged and I so rule.

Document number 537 is a letter dated April 2, 1980 from the solicitors to Parfindus. I am satisfied that Parfindus itself was a client of the solicitors. It is therefore my opinion that that letter is privileged.

Documents numbered 154s and 154ee are two petty cash vouchers; one of which is not approved; the other of which has been approved but the approval appears to have been stricken out. The probability is that these documents were never forwarded to the accounting department and therefore did not become a part of the accounting records. I therefore find that they are privileged.

Document number 154u is a cheque requisition. It may or may not have ever been forwarded by the solicitor to the accounting department but in my opinion a cheque requisition is part of accounting records and I find that it is not privileged.

NON-CLIENT DOCUMENTS

This heading includes four documents. Documents numbered 80, 331 and 463 are handwritten notes made by a solicitor of non-privileged information which he obtained. It is conceded that the information was obtained from a non-privi- leged communication. However it is contended that the handwritten note made by the solicitor is part of a lawyer’s work product and is privileged. Counsel for the Deputy Minister argued that the aide-mémoire is in the same category as a letter received from a non-privileged source and is not privileged. It is my opinion that the note made by the solicitor of information received by him is a part of lawyer’s work product and the notes themselves are privileged and I so rule.

Document number 147 is an office copy of a letter written to a non-privileged source. It is agreed that the letter itself is not privileged. However, a solicitor wrote some instructions to his secretary on a part of the copy of the letter. The instructions are obviously privileged. Counsel agreed that the matter could be resolved by the delivery to the Deputy Minister of a copy of the letter after having blocked out the handwritten instructions. I so rule.

NON-A GENT DOCUMENTS

To/from Mann

In order to understand the documents under this heading and those that follow, a brief explanation of the background circumstances is required. In the Autumn of 1975, Messrs Riccadonna and Pettazzi became clients of the solicitors. They are Italian nationals. Mr Freeman became a client of the solicitors at about the same time. Mr Freeman is a Canadian. Mr Mann is a real estate broker. He was acting on behalf of Messrs Riccadonna and Pettazzi in an effort to find investment property for them in Canada. Eventually a consortium of the two Italians and Freeman entered into negotiations through Mann, with one Cutaia, for the purchase of a property in Hamilton known as the IBM Building. Eventually an agreement was reached and they purchased the building by an agreement of purchase and sale, dated December 16, 1975. The transaction closed in May of 1976. The agreement of purchase and sale was executed on behalf of the purchasers by Messrs Onyschuk and Freeman, in trust, for a company to be incorporated. That company was incorporated on or about December 15, 1975. That corporation is Playfair Developments Limited (“Playfair”). Mr Onyschuk became an officer and a director at the nomination of Mr Freeman. His law partner Mr Harris became a director. Ultimately Mr Mann became a director.

On some occasions Mr Mann who was obviously in frequent contact with the Italian clients sought legal advice on their behalf from the solicitors.

At times it is somewhat difficult to determine whether certain communications between the solicitors and others were made in their capacity as solicitors, or in their capacity as officials of Playfair. In my approach to the problems raised by various documents I will attempt to resolve at least some of them, by deciding whether the communications were in connection with what could be broadly described as solicitors’ work for the clients, or in connection with business operations of the corporation. If I tend to lean in favour of finding privilege, it is because, as has often been said, the confidentiality of a solictor/client communication is very important. If in doubt, I think it is appropriate to uphold the privilege.

Document number 6 is a letter from Mr Onyschuk to Mr Mann, dated October 16, 1975. It clearly gives legal advice and it is apparent, from a perusal of the letter, that the Italian clients of the solicitors requested certain legal advice through Mr Mann. It is my opinion that the advice given to their clients through Mr Mann, who was a person in frequent communication with them, in the circumstances of this case, must remain a privileged communication. I rule that this document is a privileged communication.

Document number 5 appears in Schedule C under the heading “Miscellaneous”. It is convenient to deal with it at this time. This document is an inter-office memorandum written to Mr Onyschuk by one of his law partners, Mr Harris, who apparently is an expert in tax law. The memorandum formed the basis of document number 6, and in my opinion is clearly privileged and I so rule.

Documents numbered 7, 8, 249d and 275 can all be conveniently dealt with together because they are all copies of the same letter. The letter is dated October 24, 1975 and is written by the solicitors to Messrs Pettazzi, Riccadonna and Casalegno. The letter clearly gives legal advice and on its face is privileged. It was submitted that because it was sent to Mr Casalegno as well as to the clients that privilege had been lost. The evidence indicates that Mr Casalegno was a European financial adviser of the clients. By making that financial adviser aware of their legal advice to their clients does not appear to me to destroy the obvious privilege that exists in those communications. In my opinion those documents are all covered by solicitor/client privilege and I so rule.

Document number 22, is a letter dated November 3, 1975 from Mann to Onyschuk enclosing a copy of a letter written by Mann to Cutaia, together with a draft right of first refusal. The enclosed documents being documents involving the vendor were not communications between solicitor and client, and obviously were not privileged. It is my opinion that the letter from Mann forwarding those documents to the solicitors was not privileged.

Document number 26 is a letter from Mann to the solicitors, dated November 3, 1975. At that time Mr Mann was not a client of the solicitors and upon my review of that letter he was not conveying any private communications from the Italian clients. It is a letter commenting upon a certain stage in the negotiations for the purchase of the IBM Building. I can see no basis upon which this is a privileged communication and I so rule.

Document number 35 contains two telephone messages. One was received at 4:40 pm. It is a message from Mr Mann conveying obviously privileged information respecting the transaction to Mr Onyschuk. I think that that telephone message is privileged. The second part of document number 35 is a telephone message for Mr Onyschuk from a person at A E LePage. The time of that message was 3:15 pm. While A E LePage was retained to do an appraisal I do not think that they became an agent to such an extent that communications with them would fall within the solicitor/client privilege. I rule that the telephone message marked 3:15 pm is not privileged.

Document number 43 is a telephone message of November 12, 1975 from Mann to Onyschuk. At this time I do not think that Mann was a client of the firm and the information which he was relaying in my opinion could not be considered a privileged communication. I rule that it is not a privileged communication.

Document number 48 is a handwritten note made by Mr Onyschuk with respect to certain information conveyed to him by Mann. In my opinion that note is a piece of lawyer’s work product and is privileged.

Document number 53 is a letter from Mann to Weber Bros in Edmonton, dated November 18, 1975. Clearly it is not a privileged document but in my opinion it has no relevance to the issues raised by the requirement to produce.

Document number 55 is a letter from Mann to Onyschuk, dated February 19, 1975. Mann was not a client of the law firm at that time. It is my opinion that the information contained in the letter was information to assist the purchasers in determining what amount they would offer for the IBM Building. In my opinion there is nothing in the letter which relates to the conduct of solicitors’ work. I rule the letter is not privileged.

Documents numbered 68, 75 and 79 are telephone slips containing messages which are in my opinion irrelevant to any of the issues between the parties.

Document number 821s a letter from Mann to Onyschuk, dated December 11, 1975. That letter reports on various incidents in the final negotiations with the vendor. A certain amount of financial detail is set out in it. The letter, speaking on behalf of Freeman, requests detailed legal advice respecting a possible type of financial structure of the transaction. It would be impossible to segregate the request for legal advice from the information given in the letter to the solicitors. In my opinion this letter is clearly privileged and I so rule.

Document number 122 is another letter from Mann to Onyschuk dated December 11, 1975. This letter as well gives the solicitors certain information with respect to the negotiations and asks on behalf of the clients very specific legal advice. In my opinion this letter is in the same category as document number 82, and I rule that it is privileged.

Document number 141 is a letter from Mann to Onyschuk dated May 11, 1977 enclosing a letter written by him to the Montreal Trust Company. In my opinion the enclosure is not a privileged document being written to someone who is neither a client nor an agent of the client. However, by that time Mann was a client of the law firm and it is my opinion therefore that the covering letter is privileged.

Document number 154d is a copy of document number 122 and is privileged for the same reason that that document was privileged.

Document number 154k is a copy of document number 82 and is privileged for the same reason as was document 82.

Documents numbered 154m and 154n are two copies of the same letter. It is a letter from Mann to the solicitors, dated January 6, 1976. The letter gives information relating to the leasing of the IBM Building. It seems to me that this may very well be information which is necessary to the performance of solicitors’ work in preparation for closing the transaction which had then been executed. While I have some doubt in this matter, I lean in favour of finding it privileged and I so rule.

Document number 155C is a cryptic note which appears to me to be a solicitor’s work product and I find it to be privileged.

Documents numbered 155f and 155g are an exchange of correspondence between Mann and Onyschuk in January of 1976. The letters relate to an outstanding account of A E LePage. In my opinion this is a matter relating to the busi- ness affairs of the corporation and is not a matter of privileged communication. I rule that those documents are not privileged.

Document number 15511 is a memorandum of a telephone conversation between Mann and Onyschuk, dated January 21, 1976. It is my opinion that this document is privileged on two bases. It contains certain information necessary to the preparation of closing documents for the completion of the transaction, and it is also, in my opinion, a part of the solicitors’ work product. I rule that document to be privileged.

Document number 163b is a note of a telephone message on April 12, 1976. Part of the note is irrelevant to these proceedings. Part of it relates to information necessary for legal advice and I rule it privileged.

Document number 161b is a letter from Mann to the solicitors, dated February 24, 1976. On the face of it it appears that a copy was sent to Mr Cutaia. In providing a copy of the letter to Mr Cutaia it is my opinion that the solicitor/ client privilege if it existed has been lost. I rule that the document is not privileged.

Document number 157 is a telephone message dated January 26, 1976 from Mr Mann to Mr Onyschuk. The message appears to be in relation to Alexandria Square. It is conceded that Alexandria Square is not a relevant property. It is my opinion that the telephone message is irrelevant.

Document number 176 is a letter from Mann to the solicitors, dated March 20, 1976. It relates to leasing problems and in my opinion is information necessary for the solicitors in the preparation of closing documents to complete the transaction. In my opinion it is privileged communication.

Document number 177 is a copy of document number 161b which I ruled not to be privileged. The copy is not privileged.

Document number 193C is a letter from Mann to Onyschuk, dated October 26, 1976, and relates to the A E LePage account. In my opinion, for the reasons given earlier, that is corporate business and is not solicitor/client communication. Accordingly, it is my opinion that that document is not privileged.

Document number 216 is a letter from Mann to Onyschuk, dated January 24, 1976, in which a number of reports on other buildings are enclosed. They appear to me to relate to corporate business, and I find that solicitor/client privilege does not attach to them. However it is my opinion that they are not relevant to the issues raised in the requirement to produce.

Document number 222 is a letter from Mann to Onyschuk, dated December 19, 1975. It appears to me that it is corporate business and would not be privileged. However it relates to other properties and in my opinion it is irrelevant.

Document number 309 is a letter dated November 5, 1981 from Mann to the solicitors with a copy to the president of Playfair. It encloses certain information apparently obtained from Mr. Cutaia. It appears to me that this is corporate business, not information for legal work, and I rule that it is not privileged.

Document number 431 is a telephone message advising that Mr Mann had called. The document is so innocuous that I cannot understand why it is in issue in these proceedings. I think it is irrelevant.

Document number 436 is a letter from Mr Mann to Mr Onyschuk dated May 29, 1976. It relates to an amendment which had been agreed upon between himself and Mr Cutaia respecting the agreement of purchase and sale. In my opinion this is corporate business and is not a privileged communication. I rule that the document is not privileged.

Document number 497 is a letter from Mann to Onyschuk dated December 18, 1978 with certain enclosures. It is my opinion that that document is not privileged in that it is merely the delivery of some information about Mann, personally, to Onyschuk. I rule that the document is not privileged.

Document number 291 is a letter from the solicitors to Montreal Trust Company, dated October 8, 1980. It is clearly not a privileged communication. Indeed privilege is only claimed with respect to the PS at the end of the letter. I do not think that the PS is a privileged communication.

To/From Freeman

Document number 350 is a letter from Mr Onyschuk to Mr Freeman, dated January 21, 1976. It encloses copies of certain assignments and explains certain matters relating to their execution. In my opinion it is a communication between solicitor and client relating to legal advice, and is therefore privileged.

Document number 441 is a letter from Playfair to the solicitors and others. It encloses a financial statement for operations in the year ending March 31, 1976 of Cutaia Investments Limited. The covering letter seeks an opinion with respect to possible legal proceedings. I think the letter is privileged. However, the enclosed financial statement is in my opinion not privileged.

Document number 581 is a letter from Playfair to the solicitors dated March 15, 1982. It is a covering letter enclosing a cheque. In my opinion it is communication between client and solicitor and is privileged, and I so rule.

Document number 366 is comprised of two telephone call slips; one dated February 23, 1976 and the other dated February 16, 1976. The latter is innocuous; it simply records that Mr Freeman had called. In my opinion it is a document to which the legal maxim de minimis non curat lex applies. The telephone call dated February 23, 1976 has certain handwritten notes added to it which, in my opinion, are obviously a lawyer’s work product and I rule it is privileged.

Document number 375 is comprised of two telephone call slips; one dated March 9, 1976 and one dated March 8, 1976. One of them requests that Mr Onyschuk called Mr Freeman as soon as possible; the other relates that a meeting has been set up for March 9, 1976. These are two documents to which the legal maxim de minimis non curat lex applies.

To/From Others

Documents numbers 290, 292 and 293 can conveniently be dealt with together. Briefly they are letters dated October 21, 1980 and October 7, 1980 from Playfair’s rental agent providing the solicitors with certain information to enable them to arrange leasing documents. In my opinion it is information relating to solicitors’ work in the broad sense and is therefore privileged.

Document number 303 is a letter to the solicitors from a real estate agent relating to the leasing of a part of the building to a prospective tenant. The communication is not between any agent of Playfair and in my opinion the letter and the enclosure are not privileged. The solicitor did make some handwritten notes upon the enclosure and in my opinion they are a solicitor’s work product. I direct that the lawyer’s handwriting be blocked out and that a photocopy of the document without that writing be delivered to the Deputy Minister.

Document number 467 is a letter from the solicitors to their rental agent dated November 2, 1977. The letter gives advice respecting a change to a document. In my opinion the advice is legal and the letter giving it is therefore privileged.

Document number 472 is a letter from the solicitors to the rental agent dated November 24, 1977. The letter contains a lease. It is my opinion that the communication is in respect of solicitors’ work. I rule that it is privileged.

Document number 483a is a letter from the solicitors to Playfair, dated February 8, 1978. It is a classic example of solicitor/client privilege in which the solicitors give advice with respect to a potential damage claim by a tenant. I rule that the document is privileged.

Document number 580 is a letter from the solicitors to Mr Casalegno dated March 17, 1982. The letter encloses certain documents to be executed by Parfin- dus and Chanex. Both of those are clients and, having regard to the relationship of Mr Casalegno to them, it is my opinion that the letter and contents are protected by solcitor/client privilege, and I so rule.

Firm’s Copy of Otherwise Unprivileged Communication

The documents under this sub-heading are solicitors’ copies of documents which, admittedly in the first instance, were not privileged. It is the contention of Playfair that when these copies came into the possession of its solicitors they then became privileged.

The general rule is that copies of non-privileged documents do not become privileged when they come into the possession of a solicitor. There is an exception to that rule where the documents are collected at the request of the lawyer for the purpose of giving legal advice, or for the purpose of litigation. See Crown Zellerbach Canada Limited v The Attorney-General of Canada, [1982] CTC 121; 82 DTC 6116, and Re Hoyle Industries, [1980] CTC 501; 80 DTC 6363. It is my opinion that the exception has not been established in this case.

Document number 21 is a letter from Mann to Pettazzi, dated November 3, 1978, containing a blank or draft right of first refusal. There is handwriting on the enclosure which I think forms part of solicitors’ working product. I rule that the document itself is not privileged and that a photocopy of it shall be delivered to the Deputy Minister after the handwriting on the enclosure has been blocked out.

Document number 138 is a copy of document number 441 and my ruling with respect to document number 441 applies to this document.

Document number 545b is a letter from a tenant to Cutaia, dated April 1, 1980. In my opinion that is clearly not a privileged communication.

It is unnecessary for me to make specific reference to all of the other documents under this heading. It is my opinion that none of them are privileged because the exception to the general rule has not been made out. Therefore, I rule that all of the documents under this sub-heading are not privileged.

Notes

Document number 50 contains three notes; one is a telephone message slip dated November 17, 1975. In addition there is a telephone message from a representative of A E LePage. It is my opinion that A E LePage was not an agent of a type to which solicitor/client privilege attaches, and it is therefore my opinion that that message is not privileged. The second note is another to which the maxim de minimis non curat lex applies. The third appears to me to relate to other matters and in my opinion it is irrelevant.

T C Messages

Documents numbered 30 and 31 are telephone message slips dated November 6, 1975. They appear to me to be irrelevant, but if they are they are documents to which the maxim de minimis non curat lex is applicable.

Document number 35 is a telephone message from Mr Mann to Mr Onyschuk, dated November 7, 1975. It conveys a message from Mr Riccadonna which, in my opinion, is a communication intended to pass to his solicitor confidentially. It is my opinion that it is privileged and I so rule.

Document number 152 is a telephone message and attached note of January 10, 1978. It appears that somebody from A E LePage wanted the release of certain information and that release was authorized. It is my opinion therefore that any privilege that existed was lost by its release to a third party and I rule that this document is not privileged.

Document number 543 contains three telephone messages: one dated March 11, 1980 and two dated April 1, 1980. The telephone call of March 11 has affixed to it a solicitor’s note which I find is part of solicitors’ working product and I rule it to be privileged. The telephone messages of April 1, 1980 are documents to which the maxim de minimis non curat lex applies.

Banks

Documents numbered 76 and 114a are copies of a letter from the Canadian Imperial Bank of Commerce to the solicitors dated December 5, 1975. In my opinion that is correspondence from a third party and no solicitor/client privilege attaches to it.

Document number 391 is a letter from the solicitors to the Union Bank of Switzerland, dated March 19, 1976. The document also contains similar letters to a Mr Doninelli and a Mr Datliner. I am not convinced that there is an agency between the clients and those persons sufficient to justify the attachment of solicitor/client privilege. Accordingly I find that there is no privilege in it.

Document number 535 is a note of a bank’s telephone number. This is a document to which the maxim de minimis non curat lex applies.

Documents numbered 538, 540 and 541 are telex communications between the solicitors and Union Bank of Switzerland. In my opinion those are communications with third parties and are not privileged.

Document 408 is a letter from the solicitors to the Union Bank dated April 12, 1976. That is a letter to a third party to which no privilege attaches.

Document number 534 is a letter from the solicitors to the Bank of Montreal dated April 2, 1980. This is a letter to a third party to which no solicitor/client privilege attaches.

Miscellaneous

Documents numbered 5, 7 and 8 have been dealt with previously.

Document number 29 is a communication between Mr Riccadonna and his office. It is clearly not privileged but it appears to me to relate to a matter other than his participation in the IBM Building and in my opinion it is irrelevant to this matter.

Document number 203 is a binder containing information respecting this and other properties. The document is clearly not covered by solicitor/client privilege but in my opinion parts of it are irrelevant. I direct that the document be delivered to the Deputy Minister with the observation that I think that parts of it are irrelevant.

Document number 210 is another group of documents relating to certain buildings. The document is not protected by solicitor/client privilege. However, in my opinion parts of its are irrelevant. I direct that the document be delivered to the Deputy Minister with my opinion that parts of it are irrelevant.

Document number 482 contains three telex messages which are clearly not covered by solicitor/client privilege but seem to relate to Mr Riccadonna’s wine business and are therefore irrelevant to this proceeding.

Document number 518 is a memorandum by the solicitor to his file dated January 30, 1980. It is my opinion that it is part of solicitors’ work product and is protected by solicitor/client privilege.

Document number 570 is a four-page handwritten memorandum by the solicitor. Part of it relates to corporate business and is not protected by solicitor/ client privilege. However, the bottom part of the second page, and the whole of the third page, appear to me to be notes respecting solicitors’ work for the client. I direct that the portions to which I have referred be blocked out and that a copy of the balance of the document be delivered to the Deputy Minister.

Counsel for the parties advised me that they would be able to prepare the formal order of the Court based upon these reasons for judgment. They have also advised me that the disposition of certain documents has been agreed to between them and that those documents will be incorporated into the formal order. If there are problems in the drafting of the formal order I may be spoken to.

The Act provides that there shall be no order as to costs of these proceedings. Accordingly, there is no order as to costs.

Order accordingly.