Beaubier
T.C.J.:
These
matters
came
before
this
Court
at
9:30
a.m.
on
September
13,
1999
on
the
Order
of
Bowie,
T.C.J.
signed
on
July
20,
1999,
pursuant
to
motions
dated
June
21,
1999:
...that
the
Respondent
may
move
before
the
Court
for
a
review
of
the
claims
of
privilege
set
forth
by
the
Appellants
in
their
affidavits
of
documents
filed
and
that
the
Appellants
May
move
...
as
to
which
the
Appellants,
assent
on
a
claim
of
privilege.
The
Notices
of
Appeal
were
begun
in
December,
1997
and
April,
1998
and
relate
to
assessments
respecting
alleged
avoidance
transactions
within
the
meaning
of
subsection
245(3)
of
the
Income
Tax
Act
(“Act”).
At
9:30
a.m.
on
September
13,
1999,
the
Respondent
withdrew
its
motions
and
the
Appellants
stated
that
they
had
conceded
in
the
preceding
two
weeks
that
a
few
of
the
documents
in
dispute
were
not
privileged.
An
order
respecting
the
foregoing
was
filed
on
September
15,
1999.
The
matter
of
costs
was
reserved.
The
Appellants
asked
for
solicitor
and
client
costs
of
$155,558.19
for
the
proceedings
it
had
to
undertake
as
a
result
of
the
Respondent’s
motions
respecting
the
documents
over
which
they
claimed
privilege.
These
motions
related
to
more
than
1,000
documents
and
were
proceeded
with
by
the
Respondent
respecting
all
documents.
They
required
the
time
of
four
of
the
Appellants’
solicitors
on
an
almost
continuous
basis.
They
related
to
a
number
of
allegations
by
the
Respondent
which
varied
from
time
to
time
as
did
the
bases
alleged
for
them.
There
was
an
examination
on
an
affidavit.
A
variety
of
allegations
in
law
were
made
from
time
to
time
by
Respondent’s
counsel
on
which
briefs
had
to
be
prepared.
An
examination
of
these
motions
and
the
affidavits
in
support
of
them
raises
a
question
as
to
whether
the
Respondent’s
proceedings
were
reprehensible
and
vexatious
since
the
number
of
documents
was
so
great
and
the
bases
of
the
motions
were
neither
fraud
nor
a
criminal
act
by
the
Appellants.
Neither
was
pleaded
and
there
is
no
factual
basis
of
either
one,
alleged
or
in
evidence.
From
the
material
before
the
Court
the
only
factual
basis
for
all
of
this
is
two
documents
prepared
by
a
consulting
economist
given
by
the
Appellants
to
the
Respondent
and
which
merely
contain
a
consultant’s
opinion.
They
are
documents
to
which
the
Appellants
have
consented
as
stated
in
paragraph
[2].
In
contrast
to
the
documents
which
the
Respondent
required
of
the
Appellants,
the
Respondent’s
affidavit
of
documents
contains
a
description
of
documents
in
Schedule
B
that
is
not
clear,
explicit
or
detailed.
The
broad
exercise
that
the
Appellants
were
put
through
was
a
fishing
expedition
in
the
face
of
the
authorities
on
solicitor
client
privilege
that
there
is
privilege
to
communications
between
solicitor
and
client
unless
the
commission
of
a
crime
or
fraud
is
in
question.
If
such
is
in
question,
the
law
is
that
particulars
of
the
alleged
crime
or
fraud
must
be
pleaded
and
proven.
Appellants’
counsel
detailed
what
the
Appellants
went
through
to
the
Court.
His
statements
were
made
as
counsel
and
they
were
neither
denied
nor
refuted.
They
are
accepted
as
the
proper
undertakings
of
counsel
in
such
circumstances.
Similarly,
his
statements
respecting
the
sum
of
$155,558.19
were
not
denied
or
refuted.
From
what
both
counsel
stated
to
the
Court,
Respondent’s
counsel
was
in
constant
communication
with
Appellants
counsel
and
was
quite
aware
of
the
usage
of
solicitors
time
and
the
turmoil
that
these
motions,
various
alleged
bases
(which
changed
from
time
to
time
and
not
all
of
which
were
followed
through),
and
the
number
of
documents
involved
were
creating
—
all
at
great
expense
to
the
Appellants.
These
proceedings
relate
to
various
corporations
or
transactions
in
three
national
jurisdictions.
The
legalities
were
complicated
and
required
legal
advice
at
every
step
due
to
the
jurisdictions
and
the
complicated
transactions.
In
the
course
of
argument
Counsel
for
the
Respondent
cited
his
authority
for
these
motions
to
breach
privilege
on
such
a
large
scale.
It
is
from
an
obiter
opinion
in
the
judgment
of
Osler
J.
in
R.
v.
Church
of
Scientology
(1984),
10
D.L.R.
(4th)
711
(Ont.
H.C.)
at
714
which
reads:
It
is
trite
law
that
the
advice
of
a
solicitor
may
not
be
sought
for
an
improper
purpose,
such
as
to
assist
in
the
commission
of
a
crime
or,
in
my
view,
a
civil
wrong
upon
a
third
party
as,
e.g.,
a
tort
or
breach
of
contract,
and
such
a
purpose
will
defeat
the
privilege.
That
interpretation
has
been
renounced
by
higher
authorities.
Moreover,
the
definition
of
solicitor-client
privilege
in
subsection
232(1)
of
the
Income
Tax
Act
has
not
changed
the
traditional
concept
of
the
breadth
of
privilege.
The
documents
released
from
the
claim
of
privilege
by
the
Appellant
consisted
of
two
documents
from
a
consulting
economist
and
a
second
set
of
documents
which
the
Appellants
learned
may
have
been
given
to
a
lawyer
in
his
capacity
as
a
director
of
one
of
the
corporations
involved
in
the
transactions.
The
second
set
was
only
discovered
by
the
Appellants
to
have
been
part
of
documents
given
to
a
director-lawyer
of
a
corporation
long
after
these
motions
and
proceedings
were
under
way.
Thus,
while
the
Respondent’s
counsel’s
basis
of
interpreting
privilege
was
not
well
founded,
the
fact
is
that
the
motions
resulted
in
the
determination
by
the
Appellants
that
certain
of
its
documents
were
not
privileged.
For
this
reason,
the
determination
of
the
award
of
costs
respecting
these
motions
is
left
to
the
trial
judge
to
determine.
Order
accordingly.
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