In Re William W. Kask Et Al., [1966] CTC 659, 66 DTC 5374

Wilson, C.J.:—The Department of National Revenue, under the provisions of the Income Tax Act, has essayed to seize certain documents in the possession of Mr. Marshall, a solicitor, contained in a file relating to the affairs of his clients, William

W. Kask and David Kask, carrying on business under the firm name and style of Kask Brothers, the said William W. Kask and David Kask, Patricia Kask and Mildred Frances Kask.

Mr. Marshall has agreed, on the instructions of his clients, that all documents in the file save those numbered 3, 19 and 28 may be surrendered to the Departmental officials for use in their investigation. In respect of Documents Nos. 3, 19 and 28 he has claimed, for his clients, privilege and the provisions of Section 126A of the Income Tax Act are invoked by him so that I am required, pursuant to Section 126A(5) to decide whether the documents above mentioned are to be handed over to the Department or returned to the solicitor.

To guide me in making this decision Parliament has by Section 126A(1) (e) defined solicitor and client privileges thus:

“(e) ‘SOLICITOR-CLIENT PRIVILEGE.’—‘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, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.”

The argument before me was as to whether or not the documents in question were privileged by the definition cited, and particularly as to what was meant by ‘‘an oral or documentary communication . .. passing between him and his lawyer in professional confidence’’ having regard to the right that a person would have in a superior court of the province to refuse to disclose such communication. The law in force in our courts regarding professional privilege is the same as that in force in England.

It is contended that the definition is restrictive and narrows the class of documents which are, by the common law, privileged.

I shall cite three definitions of solicitor and client privilege from three standard authorities:

Phipson, 10th ed., page 251, section 585 :

“A client (whether party or stranger) cannot be compelled, and a legal adviser (whether barrister, solicitor, the clerk or intermediate agent of either, or an interpreter) will not be allowed without the express consent of his client, to disclose oral or documentary communications passing between them in professional confidence.”

Halsbury’s Laws of England, 3rd ed., page 39, para. 56 :

“THE NATURE OF PRIVILEGE. As litigation can only be properly conducted by professional lawyers it is necessary that a litigant should be able to have recourse to them in circumstances which enable him to place unrestricted confidence in the lawyer whom he consults and that the communications which he makes to that lawyer should be kept secret. Hence communications made to and from a legal adviser for the purpose of obtaining legal advice and assistance are protected from disclosure in the course of legal proceedings, both during discovery and at the trial. This privilege is quite separate from the defence of privilege which may be raised in an action of defamation in respect of words spoken or written between legal advisers and client. Any other communications as are reasonably necessary in order that the legal advice may be safely and sufficiently obtained are also protected, but in the ease of communications to or from a non-professional agent or third party, such as a person who witnessed some event, the privilege only arises if litigation is threatened or contemplated.”

Annual Practice 1966, page 521:

“(a) COMMUNICATIONS PRIVILEGED ALTHOUGH NO LITIGATION WAS CONTEMPLATED OR PENDING

—SOLICITOR AND CLIENT.—Letters and other communications passing between a party, or his predecessors in title, and his, or their solicitors, are privileged from production, provided they are, and are sworn to be, confidential, and written to, or by, the solicitor in his professional capacity, and for the purpose of getting legal advice or assistance for the client. ’ ’

It will be noted that each of these definitions refers to the same thing as is referred to in Section 126A(1) (e), communications between solicitor and client. Therefore Parliament must be assumed to have intended that the word “communications” should be given not a new meaning but the meaning long given it by the common law. The statute does not do away with or narrow the common law definition for the purposes of the Income Tax Act insofar as privilege accorded to the client of a solicitor is concerned. All this is proper, expectable and as it should be. The only exception is, perhaps, as to accounting records.

I have looked, as I am permitted to do, at the three disputed documents.

Document No. 3 is a précis of fact, law and opinion prepared by counsel, the contents of which have been communicated to his client. It is clearly privileged, see Phipson, 10th ed., page 257, section 597 and cases therein cited.

Document No. 19 is of the same character and similarly privileged.

Document 28 consists of the working notes of the solicitor which must be based on information communicated to him by his client. It is also privileged, see Ward v. Marshall (1886), 3 T.L.R. 578.

Documents 3, 19 and 28 will be placed in a sealed envelope and given to the solicitor. The other documents, in respect of which no privilege is claimed, will go to the Department.