The
Chief
Justice
(concurred
in
by
MacKay
and
Kelly,
DJJ)
(judgment
delivered
from
the
Bench):—This
is
an
interlocutory
application
made
in
the
course
of
a
section
28
application.
It
is
expedient
to
outline
the
proceedings
preceding
the
interlocutory
application
before
attempting
to
indicate
the
substance
of
It.
section
232
of
the
Income
Tax
Act,
chapter
63
of
the
Statutes
of
1970-71-72*
provides,
inter
alia,
a
procedure
for
resolving
a
claim
of
solicitor-client
privilege
in
respect
of
documents
seized
under
that
Act,
which
procedure
is
designed
to
protect
the
privilege
in
cases
where
the
dispute
is
resolved
in
favour
of
it.
That
procedure
may
be
summarized
as
follows:
(1)
where
a
solicitor-client
privilege
is
claimed
in
respect
of
a
document
about
to
be
examined
or
seized
while
in
possession
of
a
lawyer,
the
document
is
to
be
sealed
up
and
put
in
the
custody
of
the
appropriate
sheriff
or
other
custodian
(subsection
232(3));
(2)
the
client
or
the
lawyer
may
apply
to
a
judge
of
a
superior
court
in
a
manner
prescribed
by
the
statute
for
an
order
determining
the
validity
of
the
claim
(subsection
232(4));
(3)
after
a
hearing
in
camera,
during
which
“if
he
considers
it
necessary
to
determine
the
question’’
he
may
inspect
the
document
(and,
if
he
does
so,
must
ensure
that
it
is
“resealed’’),
the
judge
is
to
decide
the
matter
“summarily”,
and
(a)
within
14
days
from
the
day
the
document
was
so
placed
in
custody,
apply,
upon
3
days’
notice
of
motion
to
the
Deputy
Attorney
General
of
Canada,
to
a
Judge
for
an
order
(i)
fixing
a
day
(not
later
than
21
days
after
the
date
of
the
order)
and
place
for
the
determination
of
the
question
whether
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
and
(ii)
requiring
the
custodian
to
produce
the
document
to
the
judge
at
that
time
and
place:
(b)
serve
a
copy
of
the
order
on
the
Deputy
Attorney
General
of
Canada
and
the
custodian
within
6
days
of
the
day
on
which
it
was
made,
and,
within
the
same
time,
pay
to
the
custodian
the
estimated
expenses
of
transporting
the
document
to
and
from
the
place
of
hearing
and
of
Safeguarding
it:
and
(c)
if
he
has
proceeded
as
authorized
by
paragraph
(b),
apply,
at
the
appointed
time
and
place,
for
an
order
determining
the
question.
(5)
An
application
under
paragraph
(4)(c)
shall
be
heard
in
camera,
and
on
the
application
(a)
the
judge
may,
if
he
considers
it
necessary
to
determine
the
question,
inspect
the
document
and,
if
he
does
so.
he
shall
ensure
that
it
is
repackaged
and
resealed:
and
(b)
the
judge
shall
decide
the
matter
summarily
and,
(i)
if
he
is
of
opinion
that
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
shall
order
the
custodian
to
deliver
the
document
to
the
lawyer,
and
(ii)
if
he
is
of
opinion
that
the
client
does
not
have
a
solicitor-client
privilege
in
respect
of
the
document,
shall
order
the
custodian
to
deliver
the
document
to
the
officer
or
some
other
person
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation,
and
he
shall,
at
the
same
time,
deliver
concise
reasons
in
which
he
shall
describe
the
nature
of
the
document
without
divulging
the
details
thereof.
(6)
Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3)
and
a
judge,
on
the
application
of
the
Attorney
General
of
Canada,
is
Satisfied
that
neither
the
client
nor
the
lawyer
has
made
an
application
under
paragraph
(4)(a),
or,
having
made
that
application,
neither
the
client
nor
the
lawyer
has
made
an
application
under
paragraph.
(c)
thereof,
he
shall
order
the
custodian
to
deliver
the
document
to
the
officer
(a)
if
he
decides
in
favour
of
the
privilege,
“order
the
custodian
to
deliver
the
document
to
the
lawyer’’,
and
(b)
otherwise,
“order
the
custodian
to
deliver
the
document”
to
the
Department
(subsection
232(5)).
There
is
a
statutory
duty
on
the
custodian
either
(a)
to
deliver
the
document
to
the
lawyer
(i)
in
accordance
with
a
consent
by
or
on
behalf
of
the
Department,
or
(ii)
in
accordance
with
an
order
of
the
judge
made
under
section
232,
Or
(b)
to
deliver
it
to
the
Department
(i)
in
accordance
with
a
consent
from
the
lawyer
or
client,
or
(ii)
in
accordance
with
an
order
of
the
judge
made
under
section
232
(subsection
232(7)),
and
to
no
one
else
(subsection
232(11)).
In
accordance
with
this
procedure,
on
April
21,
1977
Madame
Justice
Boland
of
the
Supreme
Court
of
Ontario,
on
application
of
the
applicants,
made
an
order
inter
alia
that
the
Sheriff
of
the
County
of
York
deliver
certain
specified
documents
to
Goodman
and
Carr,
Barristers
and
Solicitors,
of
Toronto,
and
that
he
deliver
certain
other
specified
documents
to
an
officer
of
the
Department
of
National
Revenue,
Taxation.
(The
order
further
provided
that
such
documents
“not
be
delivered
by
the
Sheriff
until
an
Appeal
or
Application
for
Leave
to
Appeal
from,
or
for
judicial
review
of,
this
Order,
if
any,
be
disposed
of”
provided
such
appeal
or
application
be
filed
with
the
appropriate
court
within
10
days.
Having
regard
to
the
scheme
of
section
232,
I
do
not
think
that
this
order
that
the
documents
“not
be
delivered”
until
some
time
in
the
future
is
authorized
by
section
232,
paragraph
(5)(b)
which,
in
my
view,
contemplates
not
only
that
the
matter
be
decided
“summarily”
but
that
there
be
an
unconditional
order
“to
deliver”.
Subsection
232(10)
does
not,
in
my
view,
authorize
what
is,
in
effect,
a
suspension
of
the
subsection
232(5)
order.
It
follows
that
the
continued
custody
of
the
sheriff
in
this
case
is
of
the
same
character
as
was
the
custody
of
the
sheriff
in
Deputy
Attorney
General
of
Canada
v
Brown,
[1965]
SCR
84;
[1964]
CTC
483;
64
DTC
5296,
to
which
reference
will
be
made
later
in
these
reasons.)
On
April
28,
1977
the
applicants
filed
a
section
28
application
for
an
order
setting
aside
that
part
of
the
aforesaid
order
in
which
Madame
Justice
Boland
“decided
that
certain
documents
seized
by
the
Department
of
National
Revenue
from
the
applicants’
solicitors
were
not
privileged”.
A
copy
of
documents
filed
in
connection
with
the
matter
before
Madame
Justice
Boland,
under
cover
of
a
certificate
dated
May
3,
1977,
and
accompanied
by
a
statement
to
the
effect,
inter
alia,
that
the
documents
referred
to
in
her
order
“were
never
in
the
possession
of”
the
office
of
the
Supreme
Court
of
Ontario,
was
received
in
the
Registry
of
this
Court
pursuant
to
Rule
1402.*
While
not
originally
so
framed,
counsel
have
agreed
that
this
interlocutory
application
should
be
treated
as
a
general
application
for
directions
that
would
achieve
the
objectives
sought
by
the
applicants.
To
be
more
specific,
it
is
to
be
treated
as
an
application
for
an
order
(a)
adding
the
documents
in
question
to
the
case
as
constituted
by
Rule
1402(1),
and
(b)
requiring
that
such
documents
be
placed
before
the
Court
in
some
manner
whereby
they
would
not
be
available
for
examination
except
by
the
Court.
(Whether,
without
consent
of
all
parties,
an
order
can
be
made
for
placing
the
documents
before
the
Court
in
such
manner
that
they
would
not
be
available
for
examination
except
by
the
Court,
is,
in
my
view,
open
to
argument.
In
certain
section
28
applications,
such
an
order
is
made
by
consent.)
However,
regarding
the
interlocutory
application
as
being,
in
effect,
an
application
for
such
an
order,
and
assuming
that
the
Court
would
(a)
the
order
or
decision
that
is
the
subject
of
the
application
and
any
reasons
given
therefor,
(b)
all
papers
relevant
to
the
matter
that
are
in
the
possession
or
control
of
the
tribunal,
(c)
a
transcript
of
any
verbal
testimony
given
during
the
hearing,
if
any,
giving
rise
to
the
order
or
decision
that
is
the
subject
of
the
application,
(d)
any
affidavits,
documentary
exhibits
or
other
documents
filed
during
any
such
hearing,
and
(e)
any
physical
exhibits
filed
during
any
such
hearing.
(2)
Within
10
days
of
filing
the
section
28
originating
notice,
in
the
case
of
the
applicant,
and
within
10
days
of
being
served
with
that
originating
notice,
in
the
case
of
any
other
person,
an
application
in
writing,
made
in
accordance
with
Rule
324,
may
be
made
to
vary
the
contents
of
the
case
as
fixed
by
paragraph
(1).
(3)
Unless
the
Court
otherwise
directs,
of
its
own
motion
or
upon
the
application
of
an
interested
person,
the
Deputy
Attorney
General
of
Canada
or
counsel
specially
appointed
to
apply
on
behalf
of
the
tribunal,
the
tribunal
shall,
forthwith
after
receipt
of
the
section
28
originating
notice,
either
(a)
send
to
the
Registry
of
the
Court
all
the
material
in
the
case
as
defined
by
paragraph
(1),
or,
if
some
part
thereof
is
not
in
its
possession
or
control,
the
part
thereof
that
is
in
its
possession
or
control
together
with
a
statement
of
the
part
of
the
case
not
in
its
possession
or
control,
or
(b)
prepare
copies
of
the
material
referred
to
in
subparagraph
(a)
that
is
in
its
possession
or
control,
except
the
physical
exhibits,
duly
arranged
in
sets
and
duly
certified
by
an
appropriate
officer
to
be
correct,
and
send
4
copies
of
each
set
to
the
Registry
of
the
Court
together
with
the
physical
exhibits
if
any
and
a
statement
of
the
part
of
the
case
not
in
its
possession
or
control,
and
send
one
copy
of
the
copies
and
such
statement
to
each
of
the
interested
persons.
(6)
Any
order
made
under
paragraph
(2)
shall
contain
incidental
directions
varying
the
procedure
as
contained
in
this
Rule,
if
necessary
in
the
circumstances.”
have
power
to
make
such
an
order,
I
am
of
opinion
that
it
should,
nevertheless,
be
rejected
because
(a)
having
regard
to
the
reasoning
of
the
Supreme
Court
of
Canada
in
Deputy
Attorney
General
of
Canada
v
Brown
(supra)*
dealing
with
section
232
when
it
was
section
126A
of
the
Income
Tax
Act,
it
would
be
entirely
academic
for
the
Court
to
set
aside
the
decision
or
order
that
is
under
attack,
and
(b)
assuming
that
the
Court’s
jurisdiction
under
section
28
extends
to
reviewing
the
decision
or
order
of
a
judge
under
section
232
of
the
Income
Tax
Act
as
to
whether
a
particular
document
is
subject
to
solicitor-client
privilege,
a
matter
concerning
which
I
have
doubt,
such
jurisdiction
should
not,
in
my
view,
be
exercised
in
respect
of
an
entirely
academic
matter
any
more
than
an
appeal
court’s
jurisdiction
to
hear
an
appeal
should
be
exercised
once
the
order
or
decision
attacked
ceases
to
have
any
practical
effect.
(Compare
Oatway
v
Canadian
Wheat
Board,
[1945]
SCR
204.)
If
the
Court
cannot,
on
the
section
28
application,
review
the
order
under
attack
from
the
point
of
view
of
the
availability
of
solicitor-client
privilege
with
reference
to
particular
documents,
in
my
view,
it
is
clear
that
there
is,
except
possibly
in
exceptional
circumstances
that
I
do
not
perceive
here,
no
point
in
adding
such
documents
to
the
case
as
constituted
by
Rule
1402(1).
I
am,
therefore,
of
the
view
that
the
interlocutory
application
should
be
dismissed.
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