Docket: 2008-922(GST)G
BETWEEN:
GLOBAL CASH ACCESS (CANADA) INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on July 14, 2010, at Toronto, Ontario
By: The Honourable
Justice E.A. Bowie
Appearances:
|
Counsel for the Appellant:
|
Dalton J. Albrecht
|
|
Counsel for the Respondent:
|
Annie Paré
|
____________________________________________________________________
ORDER
UPON motion by the Appellant for an Order
directing the Respondent to provide to the Appellant an unredacted copy of a memorandum
dated December 11, 2003, and for costs of this motion;
AND UPON
reading the material filed herein;
AND UPON
hearing counsel for the parties;
IT IS ORDERED THAT:
1. the respondent shall
produce to the appellant, within 15 days of receipt of this Order, a copy of the December
11, 2003 memorandum on which only the fourth to the seventeenth lines,
inclusive, of page 2 are redacted;
2. the Registry shall return the envelopes containing
the opinions and the unredacted memorandum to counsel for the respondent; and
3. the appellant shall pay to the respondent costs of
the motion forthwith, in any event of the cause, which costs are fixed at $1,000
inclusive of disbursements and H.S.T.
Signed at Ottawa, Canada,
this 6th day of October, 2010.
“E.A. Bowie”
Citation: 2010 TCC 493
Date: 20101006
Docket: 2008-922(GST)G
BETWEEN:
GLOBAL CASH ACCESS (CANADA)
INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bowie
J.
[1] The appellant brings this motion for an order
requiring the respondent to produce to it an unredacted copy of a certain
memorandum dated December 11, 2003, which was sent by Jocelyn Denis, Tax
Appeals Directorate, Commodity Taxes Section, of the Canada Revenue Agency to
Colin Cook, Chief of Appeals, Toronto North Taxation Services Office, of the
Canada Revenue Agency. I shall refer to it throughout as “the memorandum”. To
state the issue briefly, the respondent takes the position that the redactions
from the copy of the memorandum which her counsel has produced “relate
primarily to matters covered by solicitor‑client privilege”, and are
therefore protected from disclosure in the process of discovery. The appellant
does not accept that this is so, and brings this motion to have the matter
decided by the Court.
[2] The background
to the motion is both lengthy and fraught with overtones of the sort of
incivility that in recent years has been of concern to the judiciary, the law
societies and the Advocates’ Society. In a letter of September 16, 2009 counsel
for the appellant asked that counsel for the respondent produce the memorandum.
Its existence had become known to the appellant because it was mentioned in one
of the respondent’s productions. Considerable correspondence was exchanged by
counsel on the subject, and on February 17, 2010 counsel for the respondent
sent the redacted copy of the memorandum to counsel for the appellant. On
February 26 counsel for the appellant wrote, saying in part:
… we do not
agree with the Crown’s position that the redacted portions of the Memorandum
are protected by solicitor client privilege.
It
was in this letter that counsel for the appellant first indicated the intention
to bring this motion to force production of an unredacted copy. It appears that
it was in an email sent on April 1, 2010 that counsel for the respondent first
took the position that the redacted portions of the memorandum are not only
protected by privilege, but are “in any event, irrelevant”. Further
correspondence ensued, with counsel for the respondent on April 14 saying,
apparently for the first time, that the redacted portions of the document
summarize the content of a legal opinion given by the Department of Justice to
the Canada Revenue Agency.
[3] On June 18, 2010
the appellant filed this motion. Between them the parties have filed competing
affidavit material some 3 centimeters thick to advance their respective views
of the facts. Most of it consists of the correspondence between counsel and has
little to do with the merits of either party’s case. It seems to have been
reproduced only to advance the arguments in respect of costs.
[4] The position of
counsel for the appellant is that the memorandum is simply a communication
between two employees of the Canada Revenue Agency, and that no privilege
attaches to that. The respondent’s position is that the redacted portion of the
document consists of legal advice, given in confidence, by a lawyer in the
Department of Justice to officers of the Canada Revenue Agency. That advice,
she says, is privileged, and it remains privileged when it is passed from one
officer of the Agency to another as part of their internal correspondence.
[5] At the hearing,
an unredacted copy of the memorandum was given to me in a sealed envelope by
counsel for the respondent. She also provided, in a separate sealed envelope,
copies of the communications between the Agency and the Department of Justice.
I have reviewed these, and there is no doubt that the greatest part of the
redactions in question comprises the substance of the legal advice that was
given in confidence by a lawyer in the Department of Justice to an officer of
the Canada Revenue Agency. The advice was given to the Agency under the protective
cloak of solicitor client privilege, and it does not lose that protection when
it is passed from one officer of the Agency to another. If support for that
proposition, other than common sense, is required, it may be found in the
judgment of Halvorson J. in International Minerals & Chemical Corp.
(Canada) v. Commonwealth Insurance Co.
[6] I have said that
the greatest part of the redaction remains subject to the privilege and so not
subject to production. There are, however, some parts of the redaction that do
not satisfy the requirements of solicitor-client privilege. This seems to have
been recognized early in the dispute, when counsel for the respondent wrote
that the redactions relate primarily to matters subject to the
privilege. The part that contains the opinion that is protected by privilege is
that which begins with the fourth line on page 2 of the memorandum and ends
immediately above the heading tax
appeals directorate position. The remainder of the redactions, although
they make reference in places to the opinion, do not contain the substantive
advice and are not subject to privilege. The respondent shall, within 15 days
of receipt of this Order, produce to the appellant a copy of the memorandum on
which only fourth to the seventeenth lines, inclusive, of page 2 are redacted.
[7] Both parties
argued strenuously for substantial costs of the motion. Success is divided,
although it is difficult to see of what practical use the limiting of the
redactions will be to the appellant. Indeed, it is difficult to see of what
practical use the memorandum, redacted or not, could be to the appellant in the
litigation. Motions of this kind should not be encouraged. The Respondent shall
have costs of the motion, which I fix at $1,000, payable forthwith, in any
event of the cause.
Signed at Ottawa, Canada, this 6th
day of October, 2010.
“E.A. Bowie”
CITATION: 2010 TCC 493
COURT FILE NO.: 2008-922(GST)G
STYLE OF CAUSE: GLOBAL CASH ACCESS (CANADA) INC. and HER
MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: July 14, 2010
REASONS FOR ORDER
BY: The Honourable Justice E.A. Bowie
DATE OF ORDER: October 6, 2010
APPEARANCES:
|
Counsel for the
Appellant:
|
Dalton J. Albrecht
|
|
Counsel for the
Respondent:
|
Annie Paré
|
COUNSEL OF RECORD:
For the Appellant:
Name: Dalton J. Albrecht
Firm: Miller
Thomson LLP
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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