Coopers Park – Tax Court of Canada finds that advice provided by KPMG was not protected by privilege despite KPMG’s label as the client’s agent in law firm dealings

The engagement letter between the taxpayer and other clients (the "Concord Parties"), a law firm that was to provide tax advice to the clients (Moscowitz Law), an accounting firm (KPMG Accounting) and a second law firm (Farris Law) indicated that “KPMG Accounting’s role was to act as agent on behalf of the Concord Parties to retain Moskowitz Law and to provide Moskowitz Law with factual and other information.”

Hill J found that most of the documents before her for which the taxpayer claimed solicitor-client privilege were not protected from production to the Crown. In particular, in various instances:

KPMG Accounting provided independent legal advice beyond the scope of its role as agent under the Engagement Letter. … [P]roviding advice to a lawyer as part of an overall retainer, even if the lawyer then incorporates it into their own legal advice, does not make a communication privileged. Furthermore, KPMG Accounting provided that legal advice to Farris Law, a different law firm outside of the specific solicitor-client relationship established in the Engagement Letter.

Neal Armstrong. Summary of Coopers Park Real Estate Development Corporation v. The King, 2024 TCC 122 under General Concepts – Solicitor-client privilege.