Sarchuk,
T.C.C.J.:—
This
is
an
application
by
Continental
Bank
Leasing
Corporation
(Continental)
for
an
order
compelling
Marie-Thérése
Boris
(Boris)
to
re-attend
before
the
official
examiner
to
answer
certain
questions
put
to
her
during
cross-examination
upon
her
affidavit,
which
questions
were
refused
to
be
answered.
Continental
further
seeks
an
order
compelling
Boris
to
provide
proper
answers
to
certain
undertakings
given
by
her
during
cross-examination
and
compelling
her
to
re-attend
thereafter,
if
necessary,
to
answer
questions
arising
out
of
the
responses
to
the
undertakings.
The
grounds
for
the
motion
are
that
the
questions
were
proper
in
the
circumstances
and
were
improperly
objected
to
in
whole
or
in
part.
Background:
The
appeal
of
Continental
arises
from
a
notice
of
reassessment
issued
October
12,
1989
in
which
the
Minister
of
National
Revenue
(the
Minister)
made
adjustments
to
active
business
income
by
adding
the
amount
of
$84,348,900
as
recaptured
capital
cost
allowance
on
transfer
of
leasing
assets
to
Central
Capital
Leasing
Partnership.
By
way
of
a
notice
dated
January
8,
1990
Continental
objected
to
the
reassessment.
This
was
followed,
apparently
prior
to
confirmation
by
the
Minister,
by
a
notice
of
appeal
dated
April
9,
1991.
In
this
notice
Continental
sets
out
the
circumstances
leading
to
the
transaction
in
issue
(paragraphs
18-28
inclusive)
and
in
paragraph
29
pleads:
29.
Continental
leasing
did
not
receive,
directly
or
indirectly,
any
amount
or
property,
nor
was
it
entitled
to,
for
the
leasing
assets
transferred
to
the
partnership
other
than
the
Partnership
Interest
referred
to
in
paragraph
23
above.
Continental
Leasing
also
did
not
receive,
either
directly
or
indirectly,
any
amount
or
property,
nor
was
it
entitled
to,
for
the
Partnership
Interest
transferred
to
Continental
Bank
on
the
winding-up
of
Continental
Leasing.
In
the
reply
delivered
on
June
10,
1991
the
Deputy
Attorney
General
of
Canada
on
behalf
of
the
respondent
made
certain
admissions
of
fact
as
follows:
1.
He
admits
the
facts
alleged
in
paragraphs
2,
3,
4,
5,
11,
12,
29,
30,
31
and
32
of
the
appellant's
notice
of
appeal.
[Emphasis
added.]
The
parties
exchanged
documents
and
arrangements
were
made
to
conduct
an
examination
for
discovery
of
an
officer
of
the
Department
of
National
Revenue.
On
April
21,
1992
counsel
advised
that
the
respondent
proposed
to
seek
amendments
to
the
reply
and
sought
the
consent
of
counsel
for
Continental.
It
was
not
forthcoming.
On
June
16,
1992
the
respondent
filed
a
Notice
of
motion
for
an
order
pursuant
to
Rule
54
of
the
Tax
Court
of
Canada
Rules
(General
Procedure)
granting
leave
to
the
Respondent
to
amend
the
Reply
in
the
manner
set
out
in
Appendix
A
filed
with
the
motion
and
entitled
"Proposed
Amendments
to
the
Respondent's
Reply”.
One
of
the
amendments
sought
was
to:
Delete
the
reference
in
paragraph
1
of
the
Reply
to
paragraph
29
of
the
appellant's
Notice
of
Appeal.
The
grounds
for
the
respondent's
motion
are
the
existence
of
unintentional
inconsistencies
and
confusion
in
the
reply
which
could
prejudice
or
impair
an
effective
trial
of
the
issues
in
that:
(b)
in
relation
to
paragraph
29
of
the
Notice
of
Appeal
an
admission
that
the
appellant
did
not
receive
and
was
not
entitled
to
receive
directly
or
indirectly
any
amount
for
the
leasing
assets,
if
construed
literally,
is
inconsistent
with
and
contradictory
to:
(i)
the
assumption
pleaded
in
paragraph
16(h)
of
the
reply
that
there
were
proceeds
which
represented
the
sale
price
of
the
appellant's
leasing
assets;
(ii)
the
assumption
pleaded
in
paragraph
16(i)
of
the
reply
and
the
allegation
in
paragraph
18
of
the
reply
that
in
disposing
of
its
leasing
assets
the
appellant
became
liable
to
recapture
pursuant
to
section
13
of
the
Income
Tax
Act.
Such
recapture
occurs
if
the
disposition
of
the
leasing
assets
was
a
transaction
or
event
entitling
the
appellant
to
proceeds
of
disposition
of
the
depreciable
property
within
the
meaning
of
paragraphs
13(21)(c)
and
13(21)("
)(iv)
of
the
Act.
In
support
of
this
motion
the
respondent
delivered
the
affidavit
of
Boris
sworn
June
16,
1992
in
which
with
reference
to
paragraph
29
of
the
notice
of
appeal
she
says:
7.
At
no
time
did
I
intend
to
admit
that
the
appellant
did
not
receive
or
was
not
entitled
to
receive
any
amount
or
property
for
the
leasing
assets
transferred.
Such
an
admission
would
have
been
inconsistent
with
the
position
I
was
attempting
to
assert
and
with
my
reliance
upon
the
provisions
of
section
13
of
the
Act
and
in
particular
paragraph
13(21)(c)
thereof.
I
cannot
now
understand
why
I
included
paragraph
29
of
the
notice
of
appeal
among
the
paragraphs
listed
in
paragraph
1
of
the
reply.
I
can
only
conclude
it
was
through
inadvertence.
On
June
24,
1992
Boris
was
examined
on
her
affidavit
during
the
course
of
which
her
counsel
objected
to
certain
questions
on
the
ground
of
solicitorclient
privilege.
On
July
2,
1992
counsel
for
Continental
brought
this
motion
before
the
Court.
In
order
to
permit
it
to
be
heard
the
Court
granted,
on
consent,
an
order
abridging
the
time
for
delivery
of
the
requisite
motion
material.
Concurrently
both
counsel
agreed
that
the
respondent's
application
for
an
order
granting
leave
to
amend
the
reply
be
adjourned
sine
die.
One
further
matter.
During
the
course
of
cross-examination
counsel
for
Continental
put
a
wide
array
of
questions
to
Boris,
all
of
which
were
objected
to
on
the
basis
that
the
information
sought
was
the
subject
of
solicitor-client
privilege.
For
the
convenience
of
the
Court
both
counsel
agreed
to
group
the
questions
in
respect
of
which
an
order
was
sought
into
three
categories.
They
are:
1.
What
instructions
were
provided
to
Ms.
Boris
or
others
at
the
Department
of
Justice
by
Revenue
Canada
in
respect
of
the
delivery
of
the
respondents
reply
to
the
notice
of
appeal
dated
April
9,
1991?
Who
provided
the
instructions?
When
were
the
instructions
provided?
Produce
all
documents
which
pertain
to
or
record
these
instructions.
2.
Who
at
Revenue
Canada
or
at
the
Department
of
Justice
participated
in
the
drafting
of
the
reply
and
in
the
drafting
of
each
iteration
of
the
reply
thereafter,
including
the
Amended
Reply
(June,
1991),
the
Proposed
Further
Amendments
to
respondent's
reply
(April,
1992)
and
the
Proposed
Amendments
to
respondent's
reply
(June,
1992)?
What
comments
were
provided
in
respect
of
these
pleadings
or
draft
pleadings?
What
specific
comments
were
provided
in
respect
of
the
admission
by
the
respondent
of
paragraph
29
of
the
notice
of
appeal?
What
precipitated
the
first
attempt
to
withdraw
the
admission
in
respect
of
paragraph
29
in
April,
1992?
Produce
all
documentation
which
pertains
to
or
records
any
such
comments
provided
by
Revenue
Canada
or
others
at
the
Department
of
Justice.
3.
What
factual
information
was
received
or
obtained,
and
what
factual
determinations,
if
any,
were
made,
either
by
Revenue
Canada
or
by
the
Department
of
Justice
in
respect
of
the
matters
pleaded
in
paragraph
29
of
the
notice
of
appeal
before
the
reply
was
delivered
by
the
respondent
on
June
10,
1991?
Was
any
additional
information
conveyed
or
obtained
by
either
the
Department
of
Justice
or
Revenue
Canada
in
respect
of
the
matters
pleaded
in
paragraph
29
of
the
reply,
or
were
any
additional
determinations
made
in
respect
of
those
matters,
before
the
delivery
by
the
respondent
of
the
amended
reply
(June,
1991),
the
proposed
further
amendments
to
respondent's
reply
(April,
1992)
or
the
proposed
amendments
to
respondent's
reply
(June,
1992)?
Appellant's
position:
The
appellant
relies
on
Rules
12,
105(3),
107(3)
and
110
of
the
Tax
Court
of
Canada
Rules
(General
Procedure).
The
factual
assertion
contained
in
paragraph
29
of
the
notice
of
appeal
is
vital
to
Continental's
case
and
the
respondent
made
an
unqualified
admission
of
the
facts
alleged
in
that
paragraph.
Counsel
argues
that
the
Minister
of
National
Revenue
by
his
assessment
is
“
attempting
to
tax
on
an
income
basis
recaptured
capital
cost
allowance
in
the
hands
of
Continental
Bank
Leasing
Corporation”.
Since
Continental's
position
is
that
no
recaptured
capital
cost
arises
from
this
transaction
because,
inter
alia,
recaptured
capital
cost
allowance
could
only
arise
in
its
hands
to
the
extent
that
it
received,
or
was
entitled
to
receive
proceeds
of
disposition
in
respect
of
the
transfer
of
its
leasing
assets
to
the
partnership,
the
Minister's
admission
of
that
assertion
in
paragraph
29
is
critical
to
Continental's
appeal.
It
is
contended
that
the
respondent
can
succeed
in
her
motion
for
leave
to
deliver
the
amended
reply,
involving
as
it
does
a
withdrawal
of
an
admission,
only
if
it
can
be
demonstrated
that
the
admission
was
made
inadvertently,
or
that
the
solicitor
making
the
admissions
was
wrongly
instructed.
Those
are
the
two
legal
tests
that,
according
to
counsel,
apply
to
the
respondent's
motion
to
amend.
Counsel
submits
that
Boris
could
not
have
misunderstood
the
issue
and
in
fact
she
conceded
in
cross-examination
that
the
reply
was
drafted
carefully
and
was
reviewed
to
assure
that
only
those
facts
which
the
respondent
intended
to
admit
were
admitted.
He
argues
that
the
very
nature
of
the
reply
was
such
as
to
negate
any
suggestion
that
Boris
did
not
understand
or
comprehend
what
was
pleaded
in
paragraph
29
of
the
notice
of
appeal.
The
admission,
therefore,
could
not
be
inadvertent
and
thus
in
his
cross-examination
of
Boris
he
was
entitled
to
challenge
her
assertion
to
that
effect.
To
do
so
it
was
necessary
to
discover
Boris
on
the
nature
and
extent
of
instructions
given
to
her
at
any
relevant
time
by
her
client
the
respondent.
There
is
no
dispute
that
what
the
appellant
seeks
to
obtain
from
Boris
would
in
the
normal
case
be
protected
by
solicitor-client
privilege.
Counsel,
however,
contends
that
privilege
was
waived
in
this
instance
because
directly
or
by
implication
Boris,
in
her
affidavit,
placed
advice
or
instructions
received
from
the
client
in
issue
and
accordingly
it
would
be
unfair
to
permit
her
to
hide
behind
the
cloak
of
privilege
in
refusing
to
answer
questions
on
cross-
examination.
Furthermore,
to
the
extent
that
facts
which
are
essential
are
not
within
Boris’
knowledge,
there
is
an
obligation
to
make
reasonable
inquiries
to
inform
herself
in
respect
thereof
and
to
disclose
the
acquired
information
during
a
resumption
of
cross-examination.
Respondent's
position:
The
respondent's
position
is
that
any
communication,
whether
oral
or
written,
between
the
Department
of
Justice
and
officers
of
the
Department
of
National
Revenue
concerning
Continental's
appeal,
as
well
as
documents
prepared
in
contemplation
of
litigation,
are
subject
to
privilege
and
nothing
the
respondent
has
done
constitutes
a
waiver
of
that
privilege.
Counsel
contends
that
the
grounds
asserted
in
the
respondent's
motion
to
amend
the
reply
do
not
raise
any
issue
regarding
solicitor-client
communications
and
accordingly
cannot
constitute
a
waiver
of
that
privilege.
He
argues
that
the
entire
focus
of
the
affidavit
relates
to
Boris’
intentions
in
drafting
the
reply.
Reference
to
the
specifics
in
that
affidavit
establishes
that
the
admission
was
made
through
inadvertence
and
at
no
time
does
the
affidavit
refer
to
any
instructions
received
from
the
Minister
or
his
officers.
The
respondent's
motion
does
not
rely
upon
or
put
in
issue
any
of
Boris'
dealings
with
the
Department
of
National
Revenue.
Counsel
refers
to
paragraphs
3,
4
and
5
of
Boris’
affidavit
in
which
she
states
that
her
intention
was
to
assert,
on
behalf
of
the
respondent,
that
the
appellant
was
not
a
member
of
any
Central
Capital
Leasing
Partnership.
He
notes
that
fact
is
stated
in
paragraph
16(h)
of
the
reply
as
it
presently
stands
and
is
also
implicit
in
paragraph
18
of
that
reply.
He
further
argues
that
Boris
intended
to
state
her
intention
that
insofar
as
the
partnership
agreement
purported
to
make
the
appellant
a
partner
it
was
a
sham
and
he
notes
that
is
the
substance
of
present
paragraphs
16(h)
and
16(j)
of
the
reply
and
also
that
of
paragraph
18.
He
further
notes
the
word
"sham"
is
used
in
the
reply.
In
paragraph
(c)
of
her
affidavit
Boris
asserts
that
she
intended
to
state
in
substance
that
the
appellant
had
disposed
of
its
leasing
assets
for
proceeds
of
disposition
which
resulted
in
recapture
of
depreciation
under
section
13
of
the
Income
Tax
Act
of
not
less
than
$84,348,900.
Counsel
notes
that
paragraphs
16(i)
and
18
of
the
existing
reply
in
substance
deal
with
that
issue.
Counsel
argues
Boris
did
not
intend
to
admit
that
Continental
did
not
receive
or
was
not
entitled
to
receive
any
amount
or
property
for
the
leasing
assets
transferred
as
pleaded
in
paragraph
29
of
its
notice
of
appeal.
In
her
affidavit
she
stated
that
such
an
admission
would
have
been
inconsistent
with
the
position
she
was
attempting
to
assert
and
more
particularly
inconsistent
with
her
reliance
in
the
reply
upon
the
specific
provisions
of
subparagraph
13(21)(c)
of
the
Act.
Lastly,
counsel
contends
that
on
the
face
of
the
respondent's
reply
it
is
obvious
that
inconsistencies
and
ambiguities
exist
from
which
it
is
apparent
that
there
is
no
clear
admission
of
the
facts
alleged
in
paragraph
29
of
the
notice
of
appeal.
Alternatively,
if
such
an
admission
were
made
it
was
strictly
through
inadvertence
and
does
not
raise
any
issue
regarding
solicitor-client
communications.
Conclusions:
The
position
of
Continental
as
expressed
by
its
counsel
is
that
the
amendment
proposed
involves
the
withdrawal
of
an
admission
of
fact
and
that
counsel
is
entitled
to
test
the
assertions
of
respondent's
counsel
in
her
affidavit
that
it
was
made
inadvertently
by
cross-examining
her
with
respect
to
the
instructions
received
by
her
from
the
client.
Counsel
referred
to
what
he
described
as
an
emerging
doctrine
of
fairness
in
judicial
pronouncements
with
respect
to
waiver
of
privilege
by
implication.
He
relied
on
Land
v.
Kaufman,
Ont.
C.J.
(Gen.
Div.)
Action
No.
SCO
492/88
(unreported);
Nowak
v.
Sanyshyn
(1979),
23
O.R.
(2d)
797,9
C.P.C.
303
(H.C.J.);
Harich
v.
Stamp
(1979),
27
O.R.
(2d)
395,
106
D.L.R.
(3d)
340
(C.A.);
Rogers
v.
Bank
of
Montreal,
62
B.C.L.R.
387,
[1985]
4
W.W.R.
508
(C.A.);
Lloyds
Bank
Canada
v.
Canada
Life
Assurance
Co.
(1991),
47
C.P.C.
(2d)
157
(Ont.
C.J.
(Gen.
Div.))
and
on
certain
comments
found
in
The
Law
of
Evidence
in
Canada
(Sopinka,
Lederman
and
Bryant),
Butterworths:
Toronto,
1992,
pages
666-68.
As
a
general
rule
there
must
be
clear
and
unequivocal
evidence
establishing
the
waiver
of
privilege.
I
accept
that
it
can
reasonably
be
argued
that
waiver
may
occur
in
some
instances
even
in
the
absence
of
any
intention
to
waive
the
privilege,
and
that
there
may
be
waiver
by
implication
only.
However
I
am
not
convinced
by
counsel's
submission
that
the
“fairness
test’
as
enunciated
by
him
has
become
the
primary
or
most
relevant
factor
for
determining
when
solicitor
and
client
privilege
is
waived.
Clearly
regard
must
be
had
for
the
element
of
fairness
and
consistency
but
in
my
view
it
is
but
one
element
to
be
considered.
Furthermore,
while
there
are
exceptions
to
the
solicitor-client
rule,
that
rule
is
not
lightly
to
be
set
aside
(per
Osler,
J.
in
Breivik
Scorgie
&
Wasylko
v.
Great
Atlantic
&
Pacific
Co.
of
Canada
(1987),
58
O.R.
(2d)
794,17
C.P.C.
(2d)
81
(H.C.),
at
page
797
[O.R.]).
In
order
to
succeed
in
this
matter
it
is
necessary
for
the
applicant
to
demonstrate
on
a
balance
of
probabilities
that
the
language
or
conduct
of
Boris,
acting
as
counsel
for
the
respondent,
can
readily
be
taken
as
an
expression
of
an
intention
on
the
part
of
the
respondent
to
waive
solicitor-client
privilege.
Such
clear
intention
was
found
in
the
decisions
relied
upon
by
counsel
for
Continental.
In
Nowak
v.
Sanyshyn
et
al.,
supra,
the
plaintiff
sued
for
a
declaration
that
a
mortgage
and
guarantee
were
null
and
void
on
the
ground,
inter
alia,
that
she
had
insufficient
legal
advice
to
ensure
her
understanding
of
the
documents.
Grange,
J.
held
that
she
may
be
compelled
on
discovery
to
answer
questions
as
to
advice
she
obtained
prior
to
signing
such
documents.
In
so
doing
Grange,
J.
made
the
following
comments:
The
issue—perhaps
the
only
issue—in
the
case
at
bar
is
the
advice
obtained
by
the
plaintiff
before
she
signed
the
documents.
If
she
was
advised
fully
her
action
will
fail;
if
she
was
not
it
may
succeed.
It
would,
in
my
mind,
be
a
distortion
of
the
purpose
of
the
rule
to
permit
it
to
be
used
to
prevent
any
inquiry
into
the
matter
by
the
defendants.
Indeed,
counsel
for
the
plaintiff
on
discovery
frankly
admitted
that
he
intends
to
lead
evidence
on
the
subject-matter
of
the
questions
at
trial.
The
solicitor-client
privilege
is
being
used
(I
do
not
suggest
any
impropriety)
to
obtain
a
timing
advantage.
I
have
not
found
a
case
precisely
on
point
but
those
that
I
will
now
refer
to
dispose
of
the
claim
of
privilege
either
upon
the
ground
that
the
privilege
does
not
extend
to
the
very
issue
of
the
action
or
that
the
privilege
has
been
waived
whenever
the
communication
between
the
solicitor
and
client
is
legitimately
put
in
issue
in
the
action.
In
Conlon
v.
Conlons,
Ltd.,
[1952]
2
All
E.R.
462,
when
the
plaintiff
sued
for
damage
and
the
defendant
pleaded
settlement,
in
reply
the
plaintiff
denied
his
solicitor's
authority
to
make
the
settlement.
The
Court
of
Appeal
ordered
that
interrogatories
as
to
the
authority
of
the
solicitors
must
be
answered.
In
James
v.
Maloney,
[1973]
1
O.R.
656,
Zuber,
J.
(as
he
then
was),
upheld
an
order
that
a
medical
report
upon
which
a
party
relied
in
an
application
to
increase
a
claim
for
damages
must
be
produced.
In
Thomson
v.
Thomson,
[1948]
O.W.N.
137,
Gale,
J.
(as
he
then
was),
required
a
solicitor-deponent
to
answer
questions
on
information
received
by
him
from
his
client
because
that
information
had
been
used
in
an
affidavit
attacking
the
opposite
party's
counterclaim.
In
Kennedy
v.
Diversified
Mining
Interests
(Canada)
Ltd.,
[1948]
O.W.N.
798,
[1949]
1
D.L.R.
59,
LeBel,
J.,
re
a
ui
red
production
of
a
letter
notwithstanding
a
claim
of
solicitor-client
privilege
because
the
letter
had
been
referred
to
in
an
affidavit
filed
by
the
solicitor
on
behalf
of
the
client.
In
Rogers
v.
Bank
of
Montreal,
supra,
the
Bank
in
its
defence
alleged
that
it
had
relied
on
the
professional
advice
of
the
receiver
respecting
the
lawfulness
of
the
appointment
and
the
timing
of
the
demand
for
payment.
The
Court
held
that
by
raising
the
defence
of
reliance
on
the
legal
opinion
of
the
receiver
the
Bank
made
its
knowledge
of
the
law
relevant
to
the
proceedings
with
the
result
that
solicitor-client
privilege
respecting
the
advice
it
received
ought
to
be
removed
for
the
purposes
of
the
application.
In
Harich
v.
Stamp,
supra,
the
defendant
in
a
civil
trial,
in
an
effort
to
explain
a
plea
of
guilty
to
a
driving
offence,
testified
regarding
his
lawyer's
failure
to
discuss
the
defence
and
his
lack
of
comprehension
thereof.
The
plaintiff
called
the
lawyer
who
represented
the
defendant
in
the
criminal
trial
as
a
witness
and
the
issue
was
whether
the
defendant's
allegation
of
inadequacy
of
advice
constituted
a
waiver
of
solicitor-client
privilege.
The
Court
held
that
in
the
circumstances
of
the
plea
the
defendant
had
effectively
waived
the
privilege
which
could
not
be
relied
upon
as
a
ground
to
object
to
the
lawyer’s
testimony.
In
Lloyds
Bank
Canada
v.
Canada
Life
Assurance
Co.,
supra,
the
defendants
moved
to
compel
the
plaintiff
to
re-attend
on
discovery
to
answer
certain
questions.
Several
related
to
communications
between
the
Bank
and
its
solicitors
for
the
purpose
of
giving
and
receiving
advice.
The
applicant
argued
that
the
Bank
waived
any
claim
it
might
have
to
solicitor-client
privilege
by
putting
in
issue
its
state
of
mind,
namely
its
pleading
that
it
was
induced
by
the
defendants
to
make
certain
loans
and
that
it
relied
upon
the
representations
made
by
the
defendants
in
determining
that
it
would
make
the
loans.
The
Court
held
that
there
was
not
a
waiver
of
privilege
in
every
instance
where
the
state
of
mind
of
the
person
possessing
the
privilege
was
in
issue.
Privilege
would
not
be
waived
where
the
person
seeking
disclosure
of
the
legal
advice
raised
the
issue
of
reliance
on
legal
advice.
However,
by
pleading
that
the
Bank
relied
on
the
comfort
letters,
it
waived
its
privilege
and
was
to
divulge
whether
it
obtained
legal
advice
before
authorizing
a
loan.
Questions
in
that
context
were
to
be
answered.
I
turn
next
to
the
decision
in
Land
v.
Kaufman,
supra.
In
that
case
the
plaintiff
sought
to
withdraw
certain
admissions
made
in
her
statement
of
claim
alleging
that
the
solicitor
preparing
it
misunderstood
her
instructions.
In
support
of
the
application
to
withdraw
the
admissions
the
solicitor
for
the
plaintiff
who
prepared
the
statement
of
claim
filed
an
affidavit.
That
solicitor
was
cross-examined
on
the
circumstances
surrounding
the
receipt
of
the
instructions
and
objection
was
made
to
answering
those
questions
on
the
ground
of
solicitor-client
privilege.
Salhany,
J.
stated:
The
real
issue,
as
I
see
it
in
this
case,
is
whether
that
privilege
has
been
waived
by
the
filing
of
her
affidavit
in
support
of
the
motion.
I
think
it
has.
By
averting
to
communications
made
by
the
plaintiff
to
her,
the
solicitor
has
waived
the
privilege.
It
is
true
that
it
is
the
client’s
privilege
and
not
that
of
the
solicitor.
Nevertheless.
I
think
the
words
of
Master
Cork
in
Hanna
v.
Hanna
(7986),
53
O.R.
(2d)
(Ont.
H.C.)
are
apt
where
he
said
at
page
254:
.
.
where
under
circumstances
as
here,
counsel
act
and
represent
the
client.
actions
taken
by
the
solicitor
in
the
name
of
the
client
or
by
that
client,
for
purposes
within
the
litigation
binds
that
client,
and
the
solicitor
for
these
purposes
only
acts
as
a
legal
conduit
for
the
information
which
that
solicitor
represents
as
coming
from
the
client."
[Emphasis
added.]
In
his
argument,
Mr.
Sommerville
stressed
the
sanctity
of
solicitor/client
privilege
and
submitted
that
it
ought
not
to
be
waived
except
in
the
most
compelling
circumstances.
In
my
view,
it
would
cause
injustice
and
unfairness
to
allow
the
solicitor
for
one
side
to
plead
that
he
or
she
misunderstood
the
client's
instructions
and
then
be
permitted
to
hide
behind
solicitor/client
privilege
when
the
other
side
seeks
to
explore
whether
there
is
any
merit
to
that
claim
of
misunderstanding.
Fairness
to
the
defendants
demands
that
the
defendants
be
entitled
to
those
answers
particularly
after
discoveries
have
been
conducted
and
the
positions
of
the
parties
have
been
revealed
by
their
pleadings
and
their
evidence
on
discovery.
As
Gale,
J.
said
in
Thomson
v.
Thomson,
[1948]
O.W.N.
137
at
page
140:
.
.
.it
would
be
an
artful
device
to
waive
the
privilege
insofar
as
the
precise
wording
of
the
affidavit
is
concerned,
but
set
it
up
to
deprive
the,
opposite
party
of
the
right
to
cross-examine
on
that
affidavit.
In
my
view
the
privilege
has
been
waived
and
the
solicitor
will
be
required
to
answer
all
questions
pertaining
to
communications
from
the
plaintiff
on
those
issues
which
are
the
subject
matter
of
the
application,
subject,
of
course,
to
relevancy.
This
decision,
I
might
add,
forms
the
foundation
for
the
appellant's
"fairness
doctrine”.
Counsel
for
the
respondent
referred
to
a
number
of
decisions,
only
one
of
which
need
be
referred
to.
In
Strait
Printing
and
Publishing
Ltd.
v.
Causeway
Insurance
Agencies
Ltd.,
91
N.S.R.
(2d)
391,
233
A.P.R.
391,
the
facts
were
that
during
discovery
the
insured
answered
questions
by
referring
to
a
conversation
between
himself
and
his
lawyer.
The
defendant
insurer
applied
to
have
the
insured's
solicitor
examined
for
discovery
with
production
of
documents
on
the
ground
that
solicitor-client
privilege
had
been
waived.
The
Court
held
that
the
applicant
had
not
shown
that
the
insured
had
a
clear
intention
to
waive
privilege.
The
communications
were
not
put
into
issue
by
the
insured
as
the
basis
for
his
actions.
In
that
decision
the
Court
concluded
that
the
insured
was
not
relying
on
any
advice
given
to
it
by
its
solicitor
and
there
was
no
clear
evidence
that
the
insured
intended
to
waive
that
privilege.
I
note
that
in
each
of
the
foregoing
cases
solicitor-client
privilege
was
raised
by
the
client
in
circumstances
where
the
privileged
communications
were
specifically
and
unequivocally
relied
upon
by
that
person.
It
is
understandable
the
Courts
found
that
the
privilege
had
effectively
been
waived
and
could
not
be
relied
upon
as
a
ground
to
object
to
answering
questions.
However
in
my
opinion
where
it
is
alleged
that
it
is
the
solicitor
and
not
the
client
who
raises
the
issue
the
evidence
must
be
quite
clear
and
unequivocal
that
the
solicitor
as
the
clients
agent
is
truly
waiving
the
privilege.
That
was
the
case
in
Land,
supra.
The
plaintiff
Land,
in
seeking
the
order
to
amend,
specifically
pleaded
that
there
was
a
misunderstanding
of
her
instructions
by
the
solicitor
who
drafted
the
statement
of
claim.
That
assertion
was
made
in
clear
and
precise
language
and
was
a
major
element
in
the
decision
of
Salhany,
J.
Factually
that
case
is
distinguishable.
There
is
no
assertion
by
the
respondent
that
Boris
misunderstood
or
acted
contrary
to
instructions
given
to
her
in
drafting
the
reply.
Furthermore
no
reliance
is
placed
in
her
affidavit
either
directly
or
by
implication
on
the
instructions
or
advice
received
from
the
client.
The
only
assertion
made
is
that
the
language
utilized
by
Boris
in
the
reply,
while
expressing
the
basis
upon
which
the
Minister
made
the
assessment,
was
imprecise,
contained
unintentional
inconsistencies
and
failed
to
make
her
intention
clear.
That
is
not
sufficient
to
enable
me
to
find
waiver
of
privilege
by
implication.
It
is
important
not
to
lose
sight
of
the
principles
which
govern
disclosure
of
privileged
communications.
In
Lloyds
Bank
Canada
v.
Canada
Life
Assurance
Co.,
supra,
Van
Camp,
J.
referred
to
Descôteaux
v.
Mierzwinski,
[1982]
1
S.C.R.
860,
141
D.L.R.
(3d)
590,
and
made
the
following
comment:
.
.
.the
Supreme
Court
of
Canada
said
that
where
legal
advice
of
any
kind
is
sought
from
a
professional
legal
adviser
in
his
capacity
as
such
the
communications
relating
to
that
purpose
made
in
confidence
by
the
client
are
at
his
instance
permanently
protected
from
disclosure
by
himself
or
by
the
legal
adviser
unless
the
client
waives
the
protection;
that
this
rule
was
more
than
merely
a
rule
of
evidence;
the
right
to
communicate
in
confidence
with
one's
legal
advisers
is
a
fundamental
civil
and
legal
right
founded
upon
the
unique
relationship
of
solicitor
and
client.
It
formulated
that
substantive
rule
as
follows
[S.C.R.page
875]:
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
paragraph
2
and
enabling
legislation
referred
to
in
paragraph
3
must
be
interpreted
restrictively.
[Emphasis
added.]
I
have
concluded
that
Boris,
by
her
affidavit,
did
not
waive
the
privilege
of
the
respondent
in
respect
of
the
communications
passing
between
Boris
and
officials
of
the
Minister.
I
cannot
agree
with
Applicant's
counsel's
contention
that
an
inference
must
necessarily
be
drawn
that
she
failed
to
follow
her
client's
instructions
in
drafting
the
reply.
Counsel
for
the
respondent
referred
to
paragraph
16
of
the
reply
which
enumerates
the
assumptions
upon
which
the
Minister
relied;
in
particular
paragraphs
16(h),
(i)
and
The
issue
between
the
parties
was
also
set
forth,
albeit
in
abbreviated
form,
in
paragraph
18
of
the
reply
in
the
following
words:
The
Deputy
Attorney
General
of
Canada
respectfully
submits
that
the
appellant
has
been
properly
assessed
as
it
engaged
in
the
transactions
as
set
out
above
with
the
object
of
disposing
of
its
leasing
assets,
and
the
interposition
of
the
Central
Capital
Leasing
Partnership
and
the
other
entities,
with
the
attendant
transactions
constituted
a
sham.
Therefore,
the
appellant
is
liable
to
recapture
pursuant
to
section
13
of
the
Act
in
its
1987
taxation
year
of
not
less
than
$84,348,900.
It
is
reasonably
arguable
that
these
assumptions
amount
to
a
denial
of
the
facts
pleaded
in
paragraph
29
of
the
notice
of
appeal.
While
the
language
lacks
the
degree
of
clarity
one
expects
to
find
in
a
pleading
drawn
by
reasonably
experienced
counsel,
it
is
apparent
that
the
inclusion
of
paragraph
29
in
a
general
admission
of
facts
such
as
found
in
paragraph
1
of
the
reply
could
only
nave
occurred
through
inadvertence.
The
assertion
of
inadvertence
in
these
circumstances
cannot
be
said
to
have
put
communications
between
Boris
and
the
client
in
issue
in
the
action.
I
conclude
that
privilege
has
not
been
waived.
The
application
is
dismissed
with
costs
in
the
cause.
Application
dismissed.
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