Iggillis – Federal Court of Appeal indicates that privilege is not lost when a tax opinion is shared with a party with a “sufficient common interest in the same transactions”
Solicitor-client privilege over a tax-planning memo prepared for the purchaser in a tax-structured purchase transaction by a tax lawyer was not lost when the tax lawyer provided the memo in draft form to the vendors' tax lawyer, whose comments resulted in memo revisions. CRA had taken the position that the sharing of the opinion with a “third party” represented a waiver of its previous confidentiality. Webb JA stated:
[W]hen dealing with complex statutes such as the Income Tax Act, sharing of opinions may well lead to efficiencies in completing the transactions and the clients may well be better served as the application of the Income Tax Act will be of interest to all of the parties to the series of transactions. … [The appellants] had sufficient common interest in the transactions to warrant a finding that … the … memo is protected from disclosure by solicitor-client privilege.
Neal Armstrong. Summary of Iggillis Holdings Inc. and Ian Gillis v. The Queen, 2018 FCA 51 under s. 232(1) – solicitor-client privilege.