506913 N.B. - Solicitor-client privilege potentially can be retained in documents which are inadvertently disclosed

Legal advice from the Department of Justice to CRA was inadvertently disclosed to the taxpayer.  D'Arcy J. found that the Minister had implicitly waived solicitor-client privilege in these documents - not when the documents were disclosed, but when the Minister failed to object when they were introduced into court records several years later (i.e., the Minister lost the privilege due to failure to act promptly once the inadvertent disclosure was discovered).

Similar considerations arise when a taxpayer inadvertently provides privileged documents to CRA or another third party, e.g., failing to remove such documents before providing a file to a CRA auditor.  In such circumstances, a prompt request should be made to CRA to return the privileged documents and to destroy all copies.

Scott Armstrong.  See summary of 506913 N.B. Ltd. v. The Queen, 2012 TCC 210 at s. 232.