Date: 20000907
Docket: T-639-93
BETWEEN:
PETER DALE AND BERNARD DALE,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER
(Delivered Orally from the Bench
in Vancouver on Wednesday, September 6, 2000)
HUGESSEN, J.
[1] The plaintiffs move to compel production of certain documents listed in Schedule 2 to the defendant's Affidavit of Documents, that is to say documents for which a claim of privilege is made. The privilege claimed is the solicitor client privilege.
[2] Two grounds are urged upon which I should find that these documents are not privileged. The first is the well known exception for communications made with a legal advisor in furtherance of a crime or fraud. The second is that the privilege has been waived. In my view, both arguments fail on the present motion.
[3] First, there is no evidence before me on this motion of any kind, prima facie or otherwise, of the commission of crime or fraud by the defendant in this case. There is not even, as I read the pleadings, an allegation of crime or fraud on the part of the Minister. As I read the pleadings the allegation is that the Minister acted in breach of section 225 of the Income Tax Act by instituting collection proceedings while an appeal was pending. It is not alleged as being a crime in the pleadings and I have very great doubts that it is, in fact, made into a crime as counsel very ably urged upon me by the operation of section 126 of the Criminal Code. It is not every breach of a statutory duty which becomes a criminal act, only those done willfully and without lawful excuse and the very paucity of prosecutions under section 126 and the very thinness of authority (counsel were able to cite none), point to the fact that this is not a crime which one often encounters.
[4] Of course, the lawfulness of the Minister's actions is the very question which is before the Court on the trial of the action itself. But even if that question is resolved in a manner satisfactory to the plaintiffs, that will not establish criminal activity, in my view, on the part of the Minister.
[5] Nor, in my view, is there any question of waiver in this case. The defendant in its Statement of Defence has simply pleaded that it has acted lawfully. That is not an allegation which puts the defendant's state of mind in issue and it is certainly not a waiver of any claimed to solicitor and client privilege.
[6] There may be cases where a waiver may be implied from the circumstances, and counsel have found some which they have given to me, but this is manifestly not such a case.
[7] Accordingly, I am going to dismiss the motion. Costs will be on the usual scale.
(Sgd.) "James K. Hugessen"
Judge
September 7, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Peter Dale and Bernard Dale |
v.
Her Majesty the Queen
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: September 6, 2000 |
| REASONS FOR ORDER OF Hugessen, J. |
APPEARANCES:
| Mr. Laurence Armstrong For the Plaintiffs |
Ms. Heather Hill and
| Mr. Carl Januszczak For the Defendant |
SOLICITORS OF RECORD:
Armstrong Nikoliich
Barristers and Solicitors
| Victoria, BC For the Plaintiffs |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Defendant |
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