MARTLAND,
J.
(all
concur)
:
—
Two
applications
have
been
made
by
the
Deputy
Attorney-General
of
Canada
(hereinafter
referred
to
as
‘‘the
applicant’’)
for
leave
to
appeal
to
this
Court,
pursuant
to
Section
41
of
the
Supreme
Court
Act.
The
respondent,
Eric
Brown,
is
a
barrister
and
solicitor,
practising
his
profession
in
the
City
of
Vancouver.
On
August
24,
1962,
an
officer
of
the
Department
of
National
Revenue
attended
at
his
office
and
asked
him
for
permission
to
examine
his
trust
account
books
and
records
kept
by
him.
The
apparent
purpose
of
such
examination
related
to
the
respondent’s
own
return
of
income
and
not
to
the
returns
of
any
of
his
clients.
It
should
be
stated
at
the
outset
that
it
is
clear
that
the
respondent
is
a
barrister
and
solicitor
in
good
standing
and
of
high
repute
and
that
the
proposed
examination
was
not
inspired
by
any
suggestion
of
improper
conduct
on
his
part,
but
was
to
be
made
in
the
course
of
what
both
counsel
described
as
a
“spot
check’’
of
lawyers’
records.
After
considering
the
request,
the
respondent
refused
permission,
on
the
ground
that
his
clients
had
a
solicitor
and
client
privilege
in
respect
of
those
books
and
records.
The
officer
thereupon
seized
the
documents
in
question,
placed
them
in
a
sealed
package,
which
was
marked
for
identification,
and
then
delivered
them
into
the
custody
of
the
sheriff
of
the
County
of
Vancouver.
On
September
5,
1962,
the
respondent
applied,
pursuant
to
the
provisions
of
Section
126A
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended,
for
the
determination
of
the
question
whether
the
clients
had
a
solicitor
and
client
privilege
in
respect
of
the
documents
w
hich
had
been
seized.
He
also
communicated
to
the
Minister
of
National
Revenue,
as
he
was
required
to
do
by
subsection
(14)
of
that
section,
the
names
and
addresses
of
the
clients
last
known
to
him
in
respect
of
whom
the
privilege
had
been
claimed.
This
list
contained
the
names
and
addresses
of
all
the
respondent’s
clients
for
whom
he
held
funds
in
trust.
The
Minister
did
not
communicate
with
any
of
the
persons
whose
names
were
contained
in
the
list
to
advise
that
a
claim
of
privilege
had
been
made
on
his
behalf
and
to
afford
an
opportunity
of
waiving
the
privilege
as
contemplated
by
subsection
(14).
The
reason
was
the
highly
laudable
one
that
such
a
communication,
addressed
to
each
of
the
respondent’s
clients
for
whom
he
held
trust
funds,
would,
in
all
likelihood,
have
had
a
serious
effect
upon
the
respondent’s
standing
with
his
clients.
In
the
result,
however,
none
of
the
respondent’s
clients
was
aware
of
a
claim
of
privilege
having
been
made
on
his
behalf,
unless
the
respondent
communicated
with
them,
as
to
which
there
is
no
evidence
before
us.
The
matter
came
on
for
hearing
before
Sullivan,
J.,
who
held
that
a
solicitor
and
client
privilege
did
exist
in
respect
of
all
the
documents
in
question
and
who
ordered,
pursuant
to
subsection
(5)
(b)
(i)
of
Section
126A,
that
the
sealed
package
be
delivered
by
the
sheriff
to
the
respondent
forthwith.
The
learned
judge
found
that
the
privilege
existed
with
respect
to
all
of
the
contents
of
the
respondent’s
trust
account
books
and
records
and
he
did
not
deem
it
necessary,
in
the
light
of
the
evidence
adduced
at
the
hearing,
to
inspect
them.
Application
for
leave
to
appeal
from
the
order
of
Sullivan,
J.,
which
was
made
on
September
24,
1962,
was
made
to
this
Court
by
notice
filed
on
December
6,
1962.
Upon
it
appearing
that
an
appeal
had
been
taken
from
the
order
to
the
Court
of
Appeal
of
British
Columbia,
that
application
was
adjourned.
Thereafter
the
Court
of
Appeal,
upon
a
motion
to
quash
the
appeal
launched
by
the
respondent,
quashed
the
appeal,
on
the
ground
that
the
Court
did
not
have
jurisdiction
to
entertain
the
appeal,
it
being
the
view
of
the
majority
that
in
hearing
the
application
Sullivan,
J.
was
acting
as
persona
designata
and
there
was
no
statutory
provision
for
any
appeal
from
his
decision.
The
applicant
has
now
renewed
its
application
for
leave
to
appeal
from
the
decision
of
Sullivan,
J.,
as
being
a
decision
of
the
‘‘highest
court
of
final
resort
in
a
province,
or
a
judge
thereof,
in
which
judgment
can
be
had
in
the
particular
case
sought
to
be
appealed’’,
within
the
wording
of
Section
41
of
the
Supreme
Court
Act.
Alternatively,
the
applicant
now
seeks
leave
to
appeal
from
the
decision
of
the
Court
of
Appeal
of
British
Columbia
that
it
did
not
have
jurisdiction
to
hear
an
appeal
from
the
order
of
Sullivan,
J.
In
so
far
as
the
latter
application
is
concerned,
despite
the
fact
that
the
application
for
leave
has
been
made,
counsel
for
both
parties
submitted
that
no
appeal
did
lie
to
the
Court
of
Appeal
of
British
Columbia
because,
this
being
a
statute
enacted
by
the
Federal
Parliament,
a
right
of
appeal
to
the
Court
of
Appeal
of
British
Columbia
could
only
have
been
given
by
the
terms
of
a
federal
statute
and
no
such
right
had
been
provided.
Whether
or
not
that
submission
is
sound
was
not
determined
in
the
Court
of
Appeal
of
British
Columbia,
which
reached
its
decision
for
different
reasons,
and,
for
the
reasons
hereinafter
given,
I
do
not
think
it
is
necessary
to
decide
it
here.
Section
125
of
the
Income
Tax
Act
requires
every
person
carrying
on
a
business
and
every
taxpayer
to
keep
proper
books
and
records
of
account.
Section
126
enables
a
person,
authorized
by
the
Minister
of
National
Revenue,
to
examine
the
books
and
records
and
any
account,
voucher,
letter,
telegram
or
other
document
which
relates,
or
may
relate,
to
information
that
is,
or
should
be,
in
the
books
or
records,
or
the
amount
of
tax
payable
under
the
Act.
Section
126A
was
enacted,
in
1956,
by
c.
39
of
the
Statutes
of
Canada
of
that
year,
and
it
deals
with
documents
which
are
in
the
possession
of
a
solicitor
for
which
he
claims
a
solicitor
and
client
privilege.
The
extent
of
that
privilege
depends
upon
the
law
of
the
province
in
which
the
document
is
situated.
The
section
provides
for
the
placing
of
the
documents,
in
a
sealed
package,
in
the
possession,
of
a
custodian
and
for
a
speedy
reference
of
the
issue,
as
to
the
existence
of
the
privilege
claimed,
to
a
judge
of
a
superior
court
having
jurisdiction
in
the
province
where
the
matter
arises,
or
to
a
Judge
of
the
Exchequer
Court
of
Canada.
The
judge
who
hears
the
application
must
hear
it
in
camera
and
he
is
required
to
deal
with
it
summarily.
He
is
further
required
to
order
either
that
the
document
in
question
be
delivered
by
the
custodian
to
the
solicitor,
if
he
holds
that
a
privilege
exists,
or
be
delivered
to
an
officer,
or
a
person
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation,
if
he
holds
that
a
privilege
does
not
exist.
The
section
contemplates,
not
only
a
decision
as
to
the
existence
of
a
solicitor
and
client
privilege,
but
also
a
disposition
of
the
custody
of
the
document
involved,
in
accordance
with
that
decision.
The
section
contains
no
provision
for
an
appeal.
The
relevant
provisions
of
Section
126A
are
as
follows:
“126A.
(1)
In
this
section
(b)
‘custodian’
means
a
person
in
whose
custody
a
package
is
placed
pursuant
to
subsection
(3)
;
(e)
‘solicitor-client
privilege’
means
the
right,
if
any,
that
a
person
has
in
a
superior
court
in
the
province
where
the
matter
arises
to
refuse
to
disclose
an
oral
or
documentary
communication
on
the
ground
that
the
communication
is
one
passing
between
him
and
his
lawyer
in
professional
confidence.
(3)
Where
an
officer
is
about
to
examine
or
seize
a
document
in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
his
has
a
solicitor-client
privilege
in
respect
of
that
document,
the
officer
shall,
without
examining
or
making
copies
of
the
document,
(a)
seize
the
document
and
place
it,
together
with
any
other
document
in
respect
of
which
the
lawyer
at
the
same
time
makes
the
same
claim
on
behalf
of
the
same
client,
in
a
package
and
suitably
seal
and
identify
the
package
;
and
(b)
place
the
package
in
the
custody
of
the
sheriff
of
the
district
or
county
in
which
the
seizure
was
made
or,
if
the
officer
and
the
lawyer
agree
in
writing
upon
a
person
to
act
as
custodian,
in
the
custody
of
such
person.
(4)
Where
a
document
has
been
seized
and
placed
in
custody
under
subsection
(3),
the
client,
or
the
lawyer
on
behalf
of
the
client,
may
(a)
within
14
days
from
the
day
the
document
was
so
placed
in
custody,
apply,
upon
8
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
(c)
of
subsection
(4)
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
solicitorclient
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.
(7)
The
custodian
shall
(a)
deliver
the
document
to
the
lawyer
(i)
in
accordance
with
a
consent
executed
by
the
officer
or
by
or
on
behalf
of
the
Deputy
Attorney
General
of
Canada
or
the
Deputy
Minister
of
National
Revenue
for
Taxation,
or
(ii)
in
accordance
with
an
order
of
a
judge
under
this
section
;
or
(b)
deliver
the
document
to
the
officer
or
some
other
person
designated
by
the
Deputy
Minister
of
National
Revenue
for
Taxation
(i)
in
accordance
with
a
consent
executed
by
the
lawyer
or
the
client,
or
(ii)
in
accordance
with
an
order
of
a
judge
under
this
section.
(11)
The
custodian
shall
not
deliver
a
document
to
any
person
except.
in
accordance
with
an
order
of
a
judge
or
a
consent
under
this
section
or
except
to
any
officer
or
servant
of
the
custodian
for
the
purposes
of
safeguarding
the
document.
(14)
Where
a
lawyer
has,
for
the
purpose
of
subsection
(2)
or
(3),
made
a
claim
that
a
named
client
of
his
has
a
solicitorclient
privilege
in
respect
of
information
or
a
document,
he
shall
at
the
same
time
communicate
to
the
Minister
or
some
person
duly
authorized
to
act
for
the
Minister
the
address
of
the
client
last
known
to
him
so
that
the
Minister
may
endeavour
to
advise
the
client
of
the
claim
of
privilege
that
has
been
made
on
his
behalf
and
may
thereby
afford
him
an
opportunity,
if
it
is
practicable
within
the
time
limited
by
this
section,
of
waiving
the
claim
of
privilege
before
the
matter
comes
on
to
be
decided
by
a
judge
or
other
tribunal.
’
’
I
agree
with
the
view
expressed
by
Lord,
J.A.,
in
the
Court
of
Appeal,
that,
in
cases
to
which
the
section
is
applicable,
4
Section
126A
is
a
complete
code
in
itself
for
deciding
the
question
of
solicitor-client
privilege
relative
to
documents
of
a
client
in
the
possession
of
a
solicitor.”
It
is,
of
course,
clear
that
the
privilege
involved
is
that
of
the
client
and
not
the
solicitor
and
the
application
to
a
judge
for
which
the
section
provides
may
be
made
by
the
client,
or
by
the
lawyer
on
his
behalf.
The
section
contemplates
a
speedy
determination
of
the
issue
of
the
claim
of
privilege
and
thereafter
a
prompt
delivery
of
possession
of
the
document
involved,
either
to
the
solicitor
or
to
the
officer
of
the
Department.
It
seems
to
me
that
once
that
has
been
done
the
whole
matter
has
been
not
only
determined,
but
completed,
and
that
any
order
which
could
be
made
on
an
appeal
(assuming
that
an
appeal
lies)
could
not
have
a
‘‘direct
and
immediate
practical
effect’’,
to
use
the
words
of
Duff,
C.J.C.
in
The
King
on
the
Relation
of
Tolfree
v.
Clark,
[1944]
S.C.R.
69
at
72.
The
document
in
question
would
no
longer
be
in
the
hands
of
the
custodian.
If
the
order
appealed
from
directed
delivery
to
the
departmental
officer,
he
would,
by
the
time
the
appeal
was
heard,
have
had
his
opportunity
to
inspect
the
document.
If
the
order
appealed
from
directed
delivery
to
the
solicitor,
the
Act
contains
no
provision
which
would
require
him,
after
the
document
has
been
restored
to
him,
to
surrender
it
again
to
the
departmental
officer
or
to
the
custodian.
We
were
advised
that
in
the
present
case,
following
the
delivery
of
the
documents
to
the
solicitor,
pursuant
to
the
order
of
Sullivan,
J.
they
were
voluntarily
returned
to
the
custody
of
the
sheriff,
pending
an
appeal,
but
I
do
not
see
how
such
a
voluntary
delivery
can
clothe
the
Appellate
Court
with
power
to
make
a
new
direction
regarding
their
disposition.
They
are
no
longer
in
the
hands
of
the
custodian,
pursuant
to
subsection
(3).
Furthermore,
the
custodian,
under
subsection
(7),
is
obligated
to
deliver
the
document
only
upon
a
consent,
or
in
accordance
with
the
order
of
a
judge
under
the
section.
In
the
light
of
the
foregoing,
and
assuming,
without
deciding,
that
this
is
a
case
in
which
an
appeal
could
be
brought
to
this
Court,
I
do
not
think
that
it
is
one
in
which
leave
should
be
granted.
Assuming
that
the
appeal
were
to
be
heard,
the
only
issue
which
could
be
determined
would
be
as
to
whether
the
learned
judge
was
right
in
holding
that
the
respondent
was
properly
entitled
to
claim,
on
behalf
of
his
clients
generally,
a
solicitor
and
client
privilege
in
respect
of
all
his
trust
account.
records.
Assuming
that
this
Court
did
not
agree
that
all
such
records,
per
se,
were
necessarily
privileged
from
production,
this
would
not
finally
determine
the
matter.
It
is
each
individual
client
who
possesses
a
privilege,
if
one
exists.
Circumstances
may
vary
and
the
position
of
each
client
who
desired
to
claim
privilege
would
still
require
to
be
considered.
The
order
which
this
Court
would
have
to
make
in
such
event
would
be
that
the
position
of
each
client
of
the
respondent,
who
did
not
waive
a
claim
to
privilege,
be
examined
separately
and
so
the
matter
would
be
back
practically
where
it
started,
more
than
two
years
after
it
began.
In
so
far
as
granting
leave
to
appeal
from
the
Court
of
Appeal
of
British
Columbia
is
concerned,
as
previously
mentioned,
neither
counsel
contended
that
an
appeal
did
lie
to
that
Court.
If
leave
were
to
be
granted
to
appeal
from
the
decision
of
the
Court
of
Appeal,
even
if
we
were
to
reach
the
conclusion,
on
the
appeal,
that
an
appeal
did
lie
to
the
Court
of
Appeal,
the
matter
would
then
have
to
be
referred
back
to
that
Court
to
hear
the
appeal
upon
the
merits.
Even
if
that
appeal
were
to
succeed,
the
Court
of
Appeal
would
be
faced
with
the
same
problems
in
formulating
an
order
as
those
which
I
have
already
outlined.
For
these
reasons,
in
my
opinion,
this
is
not
a
proper
case
for
granting
of
leave
to
appeal
to
this
Court
and
I
would
dismiss
both
applications
with
costs.
Judgment
accordingly.
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