Tyrwhitt-Drake,
J.:—The
petitioners,
partners
in
the
firm
of
solicitors
Cox
Taylor
Bryant,
have
applied
under
subsection
232(4)
of
the
Income
Tax
Act
for
an
order
determining
the
question
of
whether
or
not
the
firm’s
trust
account
ledger
in
respect
of
a
client’s
moneys
in
their
hands
is
a
privileged
document
which,
and
the
contents
of
which,
the
firm
may
not
reveal
to
third
parties
without
the
consent
of
the
client.
The
ambit
of
solicitor-client
privilege,
so
far
as
this
application
is
concerned,
is
defined
and
limited
in
the
Income
Tax
Act,
paragraph
232(1)(e)
in
this
way:
“Solicitor
client
privilege”
means
the
right,
if
any,
that
a
person
has
in
a
superior
court
in
the
province
where
the
matter
arises
to
refuse
to
disclose
an
oral
or
written
communication
as
one
passing
between
him
and
his
lawyer
in
professional
confidence,
except
that
for
the
purposes
of
this
section
an
accounting
record
of
a
lawyer,
including
any
supporting
voucher
or
cheque,
shall
be
deemed
not
to
be
such
a
communication.
The
resolution
of
the
question
posed
depends
entirely
upon
whether
or
not
the
petitioners’
trust
account
ledger
is
"an
accounting
record
of
a
lawyer"
and
so
not
a
privileged
communication
between
solicitor
and
client.
Many
authorities
which
bear
upon
this
point
were
cited,
such
as
He/man
et
al.
v.
M.N.R.,
[1970]
C.T.C.
586;
70
D.T.C.
6355,
but
the
case
most
apposite,
relied
upon
by
both
sides
here,
is
Re
Romeo's
Place
Victoria
Ltd.
et
al.
v.
The
Queen,
[1981]
C.T.C.
380;
128
D.L.R.
(2d)
279,
where
the
very
same
section
of
the
Income
Tax
Act
now
under
scrutiny
was
analyzed
by
Collier,
J.
in
the
Federal
Court.
That
learned
judge
had
this
to
say
(p.
388;
D.L.R.
289):
A
solicitor’s
trust
account
record
of
a
client's
transactions
is,
in
ordinary
circumstances,
fraud
absent,
privileged.
It
is
not
a
record
required,
by
the
Income
Tax
Act,
to
be
kept
by
lawyers.
Nevertheless,
it
is
my
view
the
particular
trust
account
records
in
this
case
are
excluded
from
the
normal
solicitor-client
privilege:
this
by
the
specific
exception
in
paragraph
232(1)(e):
(e)
.
.
.
except
that
for
the
purposes
of
this
section
an
accounting
record
of
a
lawyer,
including
any
supporting
voucher
or
cheque,
shall
be
deemed
not
to
be
such
a
communication.
Trust
account
records
are,
undoubtedly,
accounting
records
of
a
lawyer.
[My
emphasis.]
Thereafter
he
proceeds
to
distinguish
earlier
cases,
such
as
Helman,
which
dealt
with
privilege
where
the
affairs
of
lawyers
themselves
were
under
investigation;
and
where
the
statute
at
that
time
referred
to
"any
books
or
records
are,
or
should
be
kept
pursuant
to
this
Act";
since
trust
account
records
were
not
required
to
be
kept
by
the
Income
Tax
Act,
their
prima
facie
privileged
quality
was
not
affected
by
it.
Collier,
J.
went
on
to
point
out
that
the
words
"pursuant
to
this
Act"
do
not
appear
in
the
current
statute
(subs.
231(1)).
Having
referred
again
to
the
fact
that
in
these
cases
it
was
the
lawyer's
own
business
which
was
under
investigation,
he
continued:
That
is
not
the
question
here.
The
tax
affairs
of
the
clients,
not
their
solicitor,
are
being
investigated.
The
clients
are,
in
reality,
claiming
the
privilege.
But
the
statute
specifically
provides
the
solicitor's
trust
account
records
of
those
clients
are
not
privileged.
In
that
aspect,
as
distinguished
from
the
He/man
case,
the
legislators
have,
in
my
view,
clearly
done
away
with
the
normal
solicitor-client
privilege.
Since
I
am
unable
to
agree
with
the
statement
that
"trust
account
records
are,
undoubtedly,
accounting
records
of
a
lawyer"
and
its
corollary
"the
statute
specifically
provides
the
solicitor's
trust
account
records
of
those
clients
are
not
privileged",
I
am
faced
with
the
disagreeable
duty
of
saying
so,
and
differing,
with
sincerely
expressed
respect,
from
the
opinion
of
so
learned
and
experienced
a
judge
as
Collier,
J.
In
In
re
Hansard
Spruce
Mills
Ltd.
(in
Bankruptcy)
(1954),
13
W.W.R.
(N.S.)
285
Wilson,
J.,
after
discussing
the
matter
of
stare
decisis
and
referring
to
the
recently
decided
case
of
Bell
v.
Klein
et
al.
(1954),
12
W.W.R.
(N.S.)
255
in
the
Court
of
Appeal,
said
(p.
286):
..
.
I
Will
only
go
against
a
judgment
of
another
judge
of
this
Court
if:
(a)
subsequent
decisions
have
affected
the
validity
of
the
impugned
judgment;
(b)
it
is
demonstrated
that
some
binding
authority
in
case
law
or
some
relevant
statute
was
not
considered;
(c)
the
judgment
was
unconsidered,
a
nisi
prius
judgment
given
in
circumstances
familiar
to
all
trial
judges,
where
the
exigencies
of
the
trial
require
an
immediate
decision
without
opportunity
to
fully
consult
authority.
If
none
of
these
situations
exist
I
think
a
trial
judge
should
follow
the
decisions
of
his
brother
judges.
While
we
are
not
members
of
the
same
court,
Collier,
J].
and
I
exercise
coordinate
jurisdiction
in
matters
of
the
sort
before
me,
so
I
consider
the
observations
of
Wilson,
J.
set
out
above
to
be
applicable
here.
I
believe
that
item
(c)
of
Wilson,
J.'s
criteria
governs
the
situation
in
which
I
find
myself.
The
finding
of
Collier,
J.
that
a
lawyer's
trust
account
records
are
"records
of
a
lawyer"
within
the
meaning
of
paragraph
232(1)(e)
of
the
Income
Tax
Act
is
a
bald
statement
indeed.
No
authority
is
given
for
it:
and
there
is
nothing
in
his
judgment
to
indicate
that
he
heard
argument
on
the
point
as
I
have
done.
I
pause
here
to
decry,
in
strong
terms,
the
pestilential
habit
of
the
law
reporters
of
this
day
which
moves
them
to
omit
any
note
of
the
arguments
addressed
to
the
judge
whose
judgment
they
record.
Such
is,
to
my
mind,
a
serious
omission,
particularly
in
such
cases
as
this
where
I
have
had
the
benefit
of
extensive
argument
to
the
effect
that
I
ought
not
to
follow
the
baldly
expressed
opinion
of
Collier,
J.
Had
that
learned
judge
had
the
benefit
of
the
argument
of
Mr.
Pitfield
in
the
Romeo's
case,
I
cannot
see
how
he
could
have
expressed
the
opinion
he
did
without
explaining
the
process
at
which
he
arrived
at
it.
So
I
have
to
conclude
that
his
opinion
was
“unconsidered,
a
nisi
prius
judgment
given
in
circumstances
.
.
.
where
the
exigencies
of
the
trial
require
an
immediate
decision
without
opportunity
to
fully
consult
authority".
Mr.
Pitfield
argued
that
while
trust
account
records
(which
every
lawyer
is
required
to
keep
by
the
Law
Society
as
well
as
by
law,
prudence
and
common
sense)
are
indeed
“accounting
records
of
a
lawyer”,
they
are
much
more
than
that.
I
agree.
They
are
in
reality
the
accounting
records
of
the
lawyer's
client.
To
say
that
such
records
are
simply
lawyers'
records
without
more,
is
analogous
to
saying
that
possessory
and
proprietary
rights
in
the
law
of
property
are
the
same.
A
lawyer's
trust
accounts,
like
the
accounts
of
any
trustee,
record
the
incomings
and
outgoings
of
his
clients
money:
it
is
the
client's
account
which
he
records.
To
say
that
the
record
of
a
client’s
trust
account
is
that
of
the
lawyer
who
keeps
it
is
to
say,
in
the
final
analysis,
that
such
records
belong
to
the
clerk
who
keeps
the
lawyer's
books.
The
recording
of
someone
else's
transactions,
whether
by
a
trustee
for
his
cestui
que
trust,
a
bookkeeper
for
his
employer
or
a
lawyer
for
his
client
is
an
act
purely
ministerial.
The
recorder
has
no
interest,
other
than
those
of
accuracy
and
confidentiality,
in
the
content
of
such
records.
In
my
opinion
Mr.
Pitfield's
argument
is
unanswerable:
a
lawyer's
record
of
his
client’s
trust
account
is
privileged,
and
only
express
legislation
can
take
that
privilege
away.
The
matter
here
is
governed,
there
being
no
legal
proceedings
afoot,
by
the
rule
of
the
common
law,
a
substantive
rule
rather
than
a
rule
of
evidence,
stated
by
Dickson,
J.
in
Solosky
v.
The
Queen,
[1980]
1
S.C.R.
821;
105
D.L.R.
(3d)
745
in
this
way
at
page
839
(D.L.R.
760):
One
may
depart
from
the
current
concept
of
privilege
and
approach
the
case
on
the
broad
basis
that
.
.
.
the
right
to
communicate
in
confidence
with
one's
legal
adviser
is
a
fundamental
civil
and
legal
right,
founded
upon
the
unique
relationship
of
solicitor
and
client.
.
.
.
This
rule
was
stated
with
greater
elaboration
by
Lamer,
J.
in
Descoteaux
v.
Mierzwinski
and
A.G.
Quebec,
[1982]
1
S.C.R.
860;
141
D.L.R.
(3d)
590.
Lamer,
J.
referred
to
Solosky
and
went
on
to
formulate
a
working
rule
thus:
1.
The
confidentiality
of
communications
between
solicitor
and
client
may
be
raised
in
any
circumstances
where
such
communications
are
likely
to
be
disclosed
without
the
client’s
consent.
2.
Unless
the
law
provides
otherwise,
when
and
to
the
extent
that
the
legitimate
exercise
of
a
right
would
interfere
with
another
person's
right
to
have
his
communications
with
his
lawyer
kept
confidential,
the
resulting
conflict
should
be
resolved
in
favour
of
protecting
the
confidentiality.
3.
When
the
law
gives
someone
the
authority
to
do
something
which,
in
the
circumstances
of
the
case,
might
interfere
with
that
confidentiality,
the
decision
to
do
so
and
the
choice
of
means
of
exercising
that
authority
should
be
determined
with
a
view
to
not
interfering
with
it
except
to
the
extent
absolutely
necessary
in
order
to
achieve
the
ends
sought
by
the
enabling
legislation.
4.
Acts
providing
otherwise
in
situations
under
para.
2
and
enabling
legislation
referred
to
in
para.
3
must
be
interpreted
restrictively.
Applying
this
formula
to
paragraph
232(1)(e)
of
the
Income
Tax
Act,
the
phrase
"accounting
records
of
a
lawyer"
comes
to
mean,
when
interpreted
restrictively,
exactly
what
it
says:
the
accounting
records
of
a
lawyer
relating
only
to
his
own
business.
Mr.
Pitfield
made
a
further
submission
of
a
rather
technical
nature,
but
when
one
looks
at
the
statute
with
a
restrictive
eye
—
and
indeed,
apart
from
the
rule
enunciated
in
Descoteaux,
all
taxing
statutes
are
required
to
be
interpreted
strictly
—
it
has
merit.
Referring
to
the
definition
of
"lawyer"
in
paragraph
232(1)(c)
of
the
Income
Tax
Act,
as
“a
barrister
or
solicitor"
in
the
singular,
he
argues
that
this
definition
cannot
be
said
to
include
a
partnership
firm
such
as
that
of
the
petitioners
here;
this
firm
is
a
collective
of
individuals,
and
its
books
of
account
are
those
of
the
firm
and
not
of
any
single
lawyer
who
is
a
partner
therein.
Strictly
speaking,
the
firm’s
accounting
records,
are
not
the
accounting
records
of
"a"
lawyer.
In
my
judgment
then,
the
petition
succeeds
because
the
accounting
records
demanded
are
the
records
of
the
client
rather
than
those
of
the
solicitor
and
so
privileged.
If
I
am
wrong
in
this,
then
they
are
not
in
any
event
caught
by
the
statute
because
they
are
the
records
of
a
partnership
of
lawyers
and
not
those
of
"a"
lawyer.
In
accordance
with
paragraph
232(a),
there
will
be
no
order
as
to
costs.
Petition
allowed.
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