Burnyeat
J.:
The
petitioner,
Katrina
Grimmova,
applies
pursuant
to
s.232(4)
of
the
Income
Tax
Act
and
s.488.1
of
the
Criminal
Code
and
the
petitioners,
Frederick
Kranz,
Katarina
Kranz,
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.,
apply
pursuant
to
Rules
5(22)
and
10
of
the
Supreme
Court
Rules
for
a
determination
of
the
question
of
whether
certain
documents
sealed
in
the
records
of
the
court
are
subject
to
solicitor-client
privilege
so
that
the
documents
should
be
returned.
In
the
Information
to
Obtain
Search
Warrants,
the
banking
records,
financial
documents,
accounting
records,
documents
pertaining
to
the
purchase
or
sale
of
properties,
rental
records,
documents
pertaining
to
income
tax,
documents
pertaining
to
the
incorporation,
shareholdings
and
minutes
of
meetings
of
certain
companies
all
pertaining
to
the
period
January
I,
1993
through
December
31,
1995
were
sought
from
the
petitioners,
Frederick
Kranz,
Katarina
Kranz,
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.
and
the
banking
records,
accounting
records,
documents
pertaining
to
income
tax,
and
original
documents
containing
specimen
signatures
of
Katrina
Grimmova
as
well
as
records,
statements
and
documents
pertaining
to
property
at
524
Eastcot
Road,
West
Vancouver
for
the
period
January
1,
1992
through
December
31,
1994
were
sought
as
against
the
petitioner
Grimmova
on
the
basis
that
those
documents
would
afford
evidence
with
respect
to
the
commission
of
certain
offences
against
the
Income
Tax
Act,
R.S.C.,
c.].
The
alleged
offences
under
the
Income
Tax
Act
were
that
Kranz
Investments
Ltd.
and
Frederick
Kranz
wilfully
evaded
or
attempted
to
evade
payment
of
taxes
by
under-stating
the
income
of
Kranz
Investments
Ltd.,
that
Kranz
Investments
Ltd.
and
Frederick
Kranz
had
made
or
participated
in,
assented
to
or
acquiesced
in
the
making
of
false
or
deceptive
statements
in
the
1994,
1995
and
1996
income
tax
returns
of
Kranz
Investments
Ltd.,
that
Yaletown
Enterprises
Ltd.
and
Katarina
Kranz
had
wilfully
evaded
or
attempted
to
evade
payment
of
taxes
imposed
on
Yaletown
Enterprises
Ltd.
for
the
taxation
years
1993
and
1994
and
had
unlawfully
made
or
participated
in,
assented
to
or
acquiesced
in
the
making
of
false
or
deceptive
statements
in
the
1993
and
1994
corporation
income
tax
returns
for
Yaletown
Enterprises
Ltd.,
that
Frederick
Kranz
had
evaded
payment
of
taxes
imposed
upon
him
personally
in
his
income
tax
returns
for
1993
through
1995
and
had
made
or
participated
in,
assented
to
or
acquiesced
in
the
making
of
false
or
deceptive
statements
in
his
income
tax
returns
for
1993
through
1995
and
that
Frederick
Kranz
and
Katarina
Kranz
had
wilfully
evaded
or
attempted
to
evade
payment
of
taxes
imposed
upon
Katarina
Kranz
for
the
taxation
years
1993
through
1995,
that
Frederick
Kranz
and
Katarina
Kranz
had
unlawfully
made,
or
participated
in,
assented
to,
or
acquiesced
in
the
making
of
false
or
deceptive
statements
in
the
1993
through
1995
income
tax
returns
of
Katarina
Kranz
and
that
Katrina
Grimmova
conspired
with
Frederick
Kranz
and
Katarina
Kranz
to
enable
Katarina
Kranz
to
evade
the
payment
of
taxes
in
the
1994
taxation
year
and
to
commit
an
offence
as
described
in
paragraph
239(1
)(d)
of
the
Income
Tax
Act.
Specifically,
it
was
alleged
that
Frederick
Kranz
appropriated
monies
from
Kranz
Investments
Ltd.
in
the
amount
of
not
less
than
$138,123
during
the
period
January
I,
1993
through
December
31,
1995
by
charging
personal
and
non-business
expenses
to
that
company,
that
Katarina
Kranz
appropriated
monies
from
Yaletown
Enterprises
Ltd.
in
the
amount
of
not
less
than
$111,910
during
the
period
January
1,
1993
through
December
31,
1995
by
under-reporting
the
company’s
rental
income
in
1993,
by
underpaying
the
company
for
renovations
done
on
her
personal
residence
and
by
under-reporting
her
income
from
the
company
in
1995,
that
Frederick
Kranz
under-stated
his
taxable
income
for
the
years
1993
through
1995
by
failing
to
report
the
amount
he
appropriated
from
Kranz
Investments
Ltd.,
that
Katarina
Kranz
under-stated
her
taxable
income
reported
for
the
years
1993
through
1995
by
failing
to
report
the
amount
she
appropriated
from
Yaletown
Enterprises
Ltd.,
that
Frederick
Kranz
and
Katarina
Kranz
understated
the
taxable
income
of
Katarina
Kranz
reported
for
the
1994
taxation
year
when
Katarina
Kranz
failed
to
report
her
income
in
the
amount
of
$217,410
from
the
sale
of
property
at
524
Eastcot
Road,
West
Vancouver,
that
Frederick
Kranz
under-stated
the
revenues
and
over-stated
the
expenses
of
Kranz
Investments
Ltd.
in
an
amount
of
not
less
than
$138,123,
that
Frederick
Kranz
and
Katarina
Kranz
under-stated
the
revenues
and
overstated
the
expenses
of
Yaletown
Enterprises
Ltd.
in
an
amount
of
not
less
than
$99,910
for
the
1993
and
1994
taxation
years
and
that
Katrina
Grim-
mova
conspired
with
Frederick
Kranz
and
Katarina
Kranz
in
the
understatement
of
the
1994
taxable
income
of
Katarina
Kranz
by
claiming
ownership
of
524
Eastcot
Road,
West
Vancouver,
and
entitlement
to
the
principle
residence
exemption
available
to
such
an
owner.
As
a
result
of
that
Information,
the
documents
which
are
in
issue
were
seized
on
June
17,
1998
from
the
law
firm
of
Gourlay,
Spencer,
Slade
&
Winch,
from
the
residence
of
Frederick
and
Katarina
Kranz
and
from
the
business
premises
of
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.
In
an
affidavit
sworn
January
29,
1999,
Janet
Slade,
Barrister
and
Solicitor,
stated
that
the
petitioner,
Katrina
Grimmova,
retained
her
and
her
firm
to
provide
legal
advice,
that
she
had
communicated
with
Ms.
Grimmova
on
a
confidential
basis
in
order
to
provide
her
with
legal
advice,
that
she
had
received
instructions
from
Ms.
Grimmova:
“...
to
take
instructions
from
and
provide
legal
advice
to
the
petitioner’s
agent,
Yaletown
Enterprises
Ltd.,
and
its
officers,
employees
and
agents
...
for
the
purposes
of
discharging
a
builder’s
lien
placed
on
the
Petitioner’s
property”,
and
that
she
had
communicated
with
Yaletown
Enterprises
Ltd.
“on
a
confidential
basis
in
order
to
provide
them
with
legal
advice.”
Two
affidavits
were
sworn
by
Frederick
Kranz.
In
those
affidavits
he
states
that
the
firm
of
Russell
&
DuMoulin
was
retained
by
him
in
1993
and
acted
as
legal
counsel
for
him
as
well
as
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.,
the
firm
of
Clark
Wilson
was
retained
by
him
in
1993
and
acted
as
legal
counsel
for
him
and
the
two
companies
through
1996,
the
firm
of
Thorsteinssons
was
retained
by
him
in
1997
and
has
since
acted
as
legal
counsel
for
him,
Katarina
Kranz
and
the
two
companies
in
respect
of
certain
income
tax
matters,
David
Okros
was
retained
by
him
in
1993
and
acted
as
legal
counsel
for
him
and
the
two
companies
and,
that
David
Okros,
representatives
from
Russell
&
DuMoulin,
Clark
Wilson
and
Thorsteinssons
had
confidential
communications
with
him
in
his
personal
capacity
and
his
capacity
as
an
officer
of
the
two
companies
for
the
purpose
of
seeking
or
obtaining
legal
advice
and
that
Katarina
Kranz
has
had
confidential
communications
with
representatives
from
Thorsteinssons
for
the
purposes
of
seeking
or
obtaining
legal
advice.
Statutory
Provisions
The
provisions
which
are
applicable
to
this
matter
are
s.488.1
of
the
Criminal
Code
and
s.232
of
the
Income
Tax
Act.
Section
488.1
reads
in
part:
488.1(2)
Where
an
officer
acting
under
the
authority
of
this
or
any
other
Act
of
Parliament
is
about
to
examine,
copy
or
seize
a
document
in
the
possession
of
a
lawyer
who
claims
that
a
named
client
of
his
has
a
solicitorclient
privilege
in
respect
of
that
document,
the
officer
shall,
without
examining
or
making
copies
of
the
document,
(a)
seize
the
document
and
place
it
in
a
package
and
suitably
seal
and
identify
the
package;
and
(4)
On
an
application
under
paragraph
(3)(c),
the
judge
(a)
may,
if
the
judge
considers
it
necessary
to
determine
the
question
whether
the
document
should
be
disclosed,
inspect
the
document;
(d)
shall
determine
the
question
summarily
and,
(i)
if
the
judge
is
of
the
opinion
that
the
document
should
not
be
disclosed,
ensure
that
it
is
repackaged
and
resealed
and
order
the
custodian
to
deliver
the
document
to
the
lawyer
who
claimed
the
solicitor-client
privilege
or
to
the
client,
or
(ii)
if
the
judge
is
of
the
opinion
that
the
document
should
be
disclosed,
order
the
custodian
to
deliver
the
document
to
the
officer
who
seized
the
document
or
some
other
person
designated
by
the
Attorney
General,
subject
to
such
restrictions
or
conditions
as
the
judge
deems
appropriate,
and
shall,
at
the
same
time,
deliver
concise
reasons
for
the
determination
in
which
the
nature
of
the
document
is
described
without
divulging
the
details
thereof.
(10)
An
application
under
paragraph
(3)(c)
shall
be
heard
in
private.
(11)
This
section
does
not
apply
in
circumstances
where
a
claim
of
solicitorclient
privilege
may
be
made
under
the
Income
Tax
Act,
R.S.C.
1985,
c.27
(1st
Supp.),
s.71.
Section
232
of
the
Income
Tax
Act
provides
in
part:
(1)
“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
the
person
and
the
person’s
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.
(3)
Where,
pursuant
to
section
231.3,
an
officer
is
about
to
seize
a
document
in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
the
lawyer
has
a
solicitor-client
privilege
in
respect
of
that
document,
the
officer
shall,
without
inspecting,
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
on
a
person
to
act
as
custodian,
in
the
custody
of
that
person.
(5)
An
application
under
paragraph
(4)(c)
shall
be
heard
in
camera,
and
on
the
application
(a)
the
judge
may,
if
the
judge
considers
it
necessary
to
determine
the
question,
inspect
the
document
and,
if
the
judge
does
so,
the
judge
shall
ensure
that
it
is
repackaged
and
resealed;
and
(b)
the
judge
shall
decide
the
matter
summarily
and,
(i)
if
the
judge
is
of
the
opinion
that
the
client
has
a
solicitor-client
privilege
in
respect
of
the
document,
shall
order
the
release
of
the
document
to
the
lawyer,
and
(ii)
if
the
judge
is
of
the
opinion
that
the
client
does
not
have
a
solicitor-client
privilege
in
respect
of
the
document,
shall
order
(A)
that
the
custodian
deliver
the
document
to
the
officer
or
some
other
person
designated
by
the
Deputy
Minister
of
National
Revenue,
in
the
case
of
a
document
that
was
seized
and
placed
in
custody
under
subsection
(3),
or
(B)
that
the
lawyer
make
the
document
available
for
inspection
or
examination
by
the
officer
or
Other
person
designated
by
the
Deputy
Minister
of
National
Revenue,
in
the
case
of
a
document
that
was
retained
under
subsection
(3.1),
and
the
judge
shall,
at
the
same
time,
deliver
concise
reasons
in
which
the
judge
shall
identify
the
document
without
divulging
the
details
thereof.
Documents
Seized
from
Gourlay,
Spencer,
Slade
&
Winch
The
documents
seized
from
this
law
firm
are
clearly
documents
contemplated
by
s.488.1
of
the
Criminal
Code
and
s.232
of
the
Income
Tax
Act
in
that
they
are
documents
“in
the
possession
of
a
lawyer
and
the
lawyer
claims
that
a
named
client
of
the
lawyer
has
a
solicitor-client
privilege
in
respect
of
that
document.”
It
is
clear
that
the
onus
is
on
either
the
lawyer
or
the
client
to
show
that
a
solicitor-client
relationship
was
in
place
so
that
solicitor-client
privilege
applies:
R.
v.
Morra
(1991),
68
C.C.C.
(3d)
273
(Ont.
Gen.
Div.));
In
the
Matter
of
Application
under
s.
441.1(3)(c)
of
the
Criminal
Code
of
Canada,
Re
(February
21,
1990),
Doc.
Vancouver
CC881107
(B.C.
S.C.);
Hilborn
v.
Canada
(Attorney
General)
(May
18,
1990),
Doc.
Vancouver
CC900160
(B.C.
S.C.);
R.
v.
Tysowski,
[1997]
8
W.W.R.
493
(Man.
Q.B.);
and
B.
v.
Canada,
[1995]
5
W.W.R.
374
(B.C.
S.C.).
In
B.
v.
Canada,
Thackray
J.
dealt
with
certain
documents
in
the
hands
of
a
law
firm
and
at
the
residence
of
one
the
firm’s
solicitors.
In
his
judgment,
he
refers
to
the
Report
of
the
Special
Committee
of
the
Canadian
Bar
Association
-
Ontario,
Regarding
Solicitor-Client
Privilege
(1985)
and
quotes
the
following
passage:
...
Cases
suggest
to
the
Committee
that
the
limits
of
solicitor-client
privilege
may
not
be
fully
understood
by
all
members
of
the
legal
profession.
Some
lawyers
confuse
the
principle
of
confidentiality
with
the
rule
of
privilege.
The
Committee
feels
that
this
misunderstanding
accounts
for
most
of
the
concern
expressed
by
lawyers
when
cases
involving
solicitor-client
privilege,
such
as
Greymac
are
discussed.
The
doctrine
of
solicitor-client
privilege
does
not
protect
all
communications
between
a
solicitor
and
his
client
from
disclosure.
Certain
communications
between
a
solicitor
and
his
client,
while
confidential,
may
be
subject
to
compulsory
disclosure
under
due
process
of
law.
Other
communications
are
protected
from
disclosure
by
the
rule
of
privilege
provided,
of
course,
that
the
communications
themselves
are
not
made
in
furtherance
of
a
fraud
or
other
crime.
It
has
been
established
for
many
years
that
in
order
for
a
privilege
to
exist,
certain
conditions
must
apply.
The
classic
statement
of
those
conditions
is
contained
in
8
Wigmore,
Evidence,
Section
2285
(McNaughton
rev.
1961)
and
may
be
summarized
as
follows:
1.
the
communications
must
originate
in
a
confidence
that
they
will
not
be
disclosed;
2.
this
element
of
confidentiality
must
be
essential
to
the
full
and
satisfactory
maintenance
of
the
relation
between
the
parties;
3.
the
relation
must
be
one
which
in
the
opinion
of
the
community
ought
to
be
sedulously
fostered;
and
4.
the
injury
that
would
inure
to
the
relation
by
the
disclosing
of
the
communications
must
be
greater
than
the
benefit
thereby
gained
for
the
correct
disposal
of
litigation
(applied
in
Slavutych
v.
Baker
et
al
(1975),
55
D.L.R.
(3d)
224,
228-9,
(S.C.C.)).
Because
communications
between
a
solicitor
and
his
client
fulfill
these
four
conditions,
the
rule
of
privilege
with
respect
to
such
communications
has
been
established.
The
question
then
becomes
to
what
extent
does
the
privilege
apply.
As
noted
above,
the
privilege
does
not
apply
to
every
communication
between
a
solicitor
and
his
client
but
only
to
certain
ones.
In
order
for
the
privilege
to
apply,
a
further
four
conditions
must
be
established.
Those
conditions
may
be
put
as
follows:
1.
there
must
be
a
communication,
whether
oral
or
written;
2.
the
communication
must
be
of
a
confidential
character;
3.
the
communication
must
be
between
a
client
(or
his
agent)
and
a
legal
advisor;
and
4.
the
communication
must
be
directly
related
to
the
seeking,
formulating,
or
giving
of
legal
advice.
If
these
four
conditions
are
satisfied
then
the
communications
(and
papers
relating
to
it)
are
privileged.
It
is
these
four
conditions
that
can
be
misunderstood
(or
forgotten)
by
members
of
the
legal
profession.
Some
lawyers
mistakenly
believe
that
whatever
they
do,
and
whatever
they
are
told,
is
privileged
merely
by
the
fact
that
they
are
lawyers.
This
is
simply
not
the
case.
For
example:
(a)
the
name
of
a
client
is
not
protected
because
it
is
not
normally
communicated
in
confidence
and
therefore
has
been
held
not
to
be
privileged
except
in
special
circumstances;
(b)
evidence
as
to
what
monies
a
solicitor
holds,
or
has
received,
or
has
paid
on
behalf
of
a
client
is
not
privileged
because
the
handling
of
a
client’s
funds
is
considered
to
be
an
act,
not
a
communication;
(c)
similarly,
even
where
a
document
itself
may
be
privileged,
the
facts
contained
in
the
document
are
not
privileged
because
they
are
facts
not
communications
and
must,
therefore,
be
revealed
if
properly
compelled
by
law.
If
the
second
set
of
four
conditions
noted
above
is
kept
in
mind,
the
narrow
scope
of
privilege
is
easier
to
understand.
Further,
decisions
such
as
Greymac
can
be
seen
not
as
major
encroachments
on
the
rule
of
privilege
but
rather
as
the
natural
outcome
of
the
proper
application
of
these
four
conditions.
As
noted
at
the
outset,
the
confusion
arises
from
a
failure
to
distinguish
between
the
rule
of
privilege
and
the
principle
of
confidentiality.
(at
pp.379-380)
He
also
cites
the
following
passage
from
Sopinka,
Lederman
and
Bryant,
The
Law
of
Evidence
in
Canada,
(Toronto:
Butterworths
1992)
at
pp.626-27):
Although
confidentiality
is
the
cornerstone
for
the
protection
of
communications
within
particular
relationships,
confidentiality
alone
is
not
sufficient
to
attract
privilege.
Confidentiality
may
well
attract
other
legal
and
ethical
rights
and
obligations
but
it
does
not
have
its
foundation
in
the
evidentiary
doctrine
of
privilege.
Evidence
law
does
not
concern
itself
with
the
ethical
requirement
upon
a
professional
such
as
a
lawyer
to
hold
in
strict
confidence
all
information
acquired
in
the
course
of
his
or
her
professional
relationship
concerning
the
business
and
affairs
of
a
client.
The
lawyer
has
a
professional
duty
not
to
divulge
such
information
without
the
client’s
approval
or
unless
required
by
law
to
do
so.
This
ethical
rule
is
wider
than
the
evidentiary
solicitor-client
privilege
and
applies
without
regard
to
the
nature
of
the
source
of
the
information
or
the
fact
that
others
may
share
the
knowledge.
Where
there
is
a
stronger
public
interest
in
disclosure,
it
will
override
the
professional
duties
of
confidence.
(at
pp.380-381)
Counsel
for
Ms.
Grimmova
agreed
that
a
number
of
documents
were
not
privileged
and
could
be
released.
Accordingly,
it
is
ordered
that
the
following
documents
be
released:
17,
18,
19,
20,
21,
22,
23,
26,
27,
30,
31,
32,
33,
34,
35,
37,
38,
42
(two
documents),
43,
44,
45,
46,
49,
50,
51,
61,
62,
65,
67,
71,
72,
73,
80,
82,
83,
84,
85,
88,
89,
90,
91,
92,
94,
98,
99,
101,
102,
103,
104,
105,
107,
108,
109,
110,
111,
112,
113
and
119.
In
accordance
with
the
discussion
set
out
in
B.
v.
Canada,
Supra,
and
the
decisions
noted
below,
the
following
documents
are
to
be
released:
(a)
Documents
relating
the
“accounting
record
of
lawyer.”
Pursuant
to
s.232(
1
)
of
the
Income
Tax
Act
and
the
decision
of
Romeo’s
Place
Victoria
Ltd.,
Re
(1981),
81
D.T.C.
5295
(Fed.
T.D.);
Heath
v.
Minister
of
National
Revenue,
[1990]
2
C.T.C.
28
(B.C.
S.C.);
and
Organic
Research
Inc.
v.
Minister
of
National
Revenue
(1990),
90
D.T.C.
6261
(Alta.
Q.B.).
I
am
satisfied
that
a
number
of
documents
relating
to
the
ac-
counting
records
maintained
by
the
subject
law
firm
should
be
released.
These
documents
relate
to
the
monies
received
and
disbursed,
the
disbursements
incurred
on
behalf
of
the
client
and
a
trust
reconciliation
of
funds
received
and
disbursed.
The
documents
to
be
released
are
numbers
13
and
16.
An
exception
will
be
made
regarding
the
top
6'/
inches
of
the
third
page
of
document
16.
That
portion
of
that
page
contains
the
internal
computer
records
of
the
firm
relating
to
services
rendered.
In
accordance
with
the
decisions
set
out
below
it
is
inappropriate
for
that
part
of
that
page
to
be
released.
(b)
Conveyancing
documents.
The
notes
of
the
solicitor
relating
to
a
search
and
the
vendor’s
statement
of
adjustments
are
to
be
released:
117
and
118.
(c)
Documents
relating
to
the
pay-out
of
sale
proceeds.
In
accordance
with
the
decisions
in
Ontario
(Securities
Commission)
v.
Greymac
Credit
Corp.
(1983),
41
O.R.
(2d)
328
(Ont.
Div.
Ct.);
Playfair
Developments
Ltd.
v.
Deputy
Minister
of
National
Revenue
(1985),
85
D.T.C.
5155
(Ont.
H.C.);
B.
v.
Canada,
supra;
and
R.
v.
Joubert
(1992),
7
B.C.A.C.
31
(B.C.
C.A.),
the
following
documents
shall
be
released:
59,
60,
63,
64,
66,
68,
69,
70
and
100.
(d)
Statements
of
account.
Document
number
15
contains
an
extensive
description
of
services
rendered
and,
accordingly,
in
accordance
with
the
decisions
reached
in
Mutual
Life
Assurance
Co.
of
Canada
v.
Canada
(Deputy
Attorney
General)
(1984),
84
D.T.C.
6177
(Ont.
H.C.);
Southern
Railway
of
British
Columbia
v.
Deputy
Minister
of
National
Revenue
(1990),
91
D.T.C.
5081
(B.C.
S.C.);
Legal
Services
Society
(British
Columbia)
v.
British
Columbia
(Information
&
Privacy
Commissioner)
(1996),
140
D.L.R.
(4th)
372
(B.C.
S.C.
[In
Chambers]);
and
Taves
v.
Canada,
[1995]
2
C.T.C.
347
(B.C.
S.C.).
The
document
numbered
15
is
privileged.
At
the
same
time,
the
top
6V2
inches
of
the
third
page
of
document
17
is
also
privileged.
(e)
General
conveyancing
documents.
In
Eastwood
&
Co.
v.
Minister
of
National
Revenue
(1993),
94
D.T.C.
6411
(B.C.
S.C.),
Hall
J.
concluded:
It
appears
to
me
that
the
majority
of
the
documents
herein
are
what
I
might
call
simple
conveyancing
type
documents
and
statements
of
account
relating
thereto
and
I
cannot
see
that
any
of
these
document
partake
of
anything
but
factual
conveyancing
matters
that
ought
not
to
attract
solicitor
and
client
privilege.
Concerning
these
documents,
it
does
not
seem
to
me
that
any
elements
of
advice
were
given
or
sought
by
the
client.
These
documents
are
more
in
the
nature
of
simple
reports
by
a
conveyancing
agent
relating
to
certain
noted
conveyancing
matters.
(at
p.
6412)
An
even
broader
view
of
these
documents
was
taken
by
Oliphant
A.C.J.Q.B.
in
À.
v.
Tysowski,
supra:
Although
it
must
be
conceded
that
advice
is
given
by
the
solicitors
to
their
respective
clients
by
way
of
reporting
letters
on
the
closings
of
the
transactions
involved
in
the
various
files,
the
advice
really
is
a
factual
report
as
to
what
has
transpired
in
the
various
transactions
and
not
legal
advice
in
the
strict
sense
of
the
word.
I
hold
that
advice
given
by
way
of
reporting
on
the
closing
of
a
real
estate
transaction
is
not
subject
to
a
solicitorclient
privilege.
(at
p.499)
Accordingly,
the
following
documents
are
not
subject
to
solicitor-client
privilege:
14,
24,
25,
28,
29,
36,
39,
40,
41,
47,
48,
52,
53,
54,
55,
56,
57,
58,
74,
75,
77,
78,
79,
81,
86,
87,
95,
96,
97,
106
and
116.
(f)
Instructions
regarding
the
sale.
There
were
no
written
instructions
received.
Rather,
a
telephone
conversation
on
April
15,
1994
set
into
motion
the
subject
law
firm
acting
on
the
conveyance.
In
the
circumstances,
the
following
documents
are
privileged:
114
and
115.
Documents
Seized
from
Frederick
Kranz,
Katarina
Kranz,
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.
While
none
of
the
documents
seized
were
documents
which
were
in
the
possession
of
the
various
solicitors
who
have
acted
in
the
past
for
these
parties
so
that
the
provisions
of
s.488.1
of
the
Criminal
Code
and
s.232
of
the
Income
Tax
Act
would
then
apply,
the
documents
nevertheless
are
subject
to
the
scrutiny
of
the
court
in
determining
whether
they
are
subject
to
solicitor-client
privilege.
Solicitor-client
privilege
is
a
privilege
belonging
to
the
client
and
the
court
is
in
a
position
to
make
a
declaration
on
the
basis
of
the
common
law
dealing
with
what
documents
and
communications
are
subject
to
solicitor-client
privilege.
Much
of
what
was
seized
relates
to
documents
which
are
outside
of
the
time
period
specified
under
the
search
warrant
or
which
do
not
fall
within
the
materials
sought
to
be
produced
by
the
search
warrant.
While
there
are
some
decisions
of
Canadian
courts
which
would
suggest
that
it
is
not
for
the
court
to
determine
whether
documents
are
relevant
or
not,
I
am
satisfied
that
the
question
of
relevancy
must
be
considered
in
deciding
whether
the
documents
should
be
produced
pursuant
to
the
search
warrants
served.
While
it
may
be
that
some
documents
would
not
be
subject
to
solicitorclient
privilege
if
they
were
the
subject
matter
of
a
different
search
warrant,
the
right
to
privacy
as
is
available
to
all
citizens
requires
the
court
to
determine
the
question
of
relevancy
when
search
warrants
such
as
these
cast
such
a
wide
net.
I
rely
on
the
following
decisions
in
arriving
at
that
conclusion:
(a)
Romeo's
Place
Victoria
Ltd.,
Re.,
81
D.T.C.
5295
(F.C.T.D.)
where
Collier
J.
concluded:
Where
solicitor-client
privilege
is
claimed,
the
court
must
decide
whether
that
privilege
exists.
But
the
question
of
that
privilege
must,
in
my
opinion,
be
decided
in
respect
of
documents
or
records
relevant
to
the
affording
of
evidence
as
to
the
violation
of
any
provision
of
the
Income
Tax
Act.
If
the
documents
or
records
have
no
reasonable
relevance
as
possible
evidence
in
respect
of
a
violation
of
the
Act
or
a
regulation,
then,
as
I
see
it,
the
court
need
not,
and
should
not,
decide
whether
there
is
solicitor-client
privilege.
The
scheme
of
sections
231
and
232
indicates
to
me
the
legislators
intended
the
court
must
determine,
on
a
generous
and
reasonable
basis,
the
relevance
of
the
records
to
the
investigation.
If
on
inspection
by
the
judge,
they
are
absolutely
irrelevant
to
any
present
or
potential
violation
of
the
Income
Tax
Act,
then
they
should
be
returned
to
the
taxpayer
without
examination
by
any
departmental
officials.
(at
p.
5298)
(b)
Organic
Research
Inc.
v.
Minister
of
National
Revenue
(Alta.
Q.B.)
(November
1990)
Egbert
J.
cited
with
approval
Romeo's
Place
Victoria
Ltd.,
Re.,
supra,
as
well
as
Kelly
Douglas
&
Co.
v.
The
Queen,
[1981]
C.T.C.
457
(B.C.
S.C.):
l
am
in
agreement
that
documents
must
fall
within
the
temporal
scope
of
the
warrant
to
be
legally
seized.
This
is
preliminary
to
a
section
232
application.”
(at
p.420).
In
accordance
with
the
decisions
cited
above
and
in
accordance
with
my
ruling
on
the
question
of
relevancy,
the
documents
presently
sealed
will
be
dealt
with
as
follows:
(a)
Documents
1
through
56.
These
documents
relate
to
various
correspondence
relating
to
an
action
commenced
by
Kranz
v.
Nelson
(City)
(April
12,
1995),
Doc.
Vancouver
C922371
(B.C.
S.C.).
Some
of
the
documents
are
protected
by
solicitor-client
privilege.
Some
of
the
documents
relate
to
periods
of
time
prior
to
the
first
date
specified
in
the
Search
Warrant.
None
of
the
documents
are
relevant
to
the
Search
Warrants.
Accordingly,
documents
1
through
56
will
not
be
produced.
(b)
Documents
60
through
74.
These
documents
relate
to
advice
given
to
Mr.
and
Mrs.
Kranz,
Kranz
Investments
Ltd.
and
Yaletown
Enterprises
Ltd.
by
their
present
solicitors
Thorsteinssons,
regarding
the
matters
which
are
the
subject
matters
of
the
Search
Warrants
as
well
as
accounts
rendered
relating
to
the
same
and/or
work
product
relating
to
the
advice
given.
Accordingly,
documents
63
through
74
are
privileged
and
are
not
to
be
produced.
(c)
Documents
76
through
151.
These
documents
relate
to
an
unrelated
litigation
matter
where
Boiler
Inspection
&
Insurance
Company
of
Canada
was
the
defendant.
Virtually
all
of
the
documents
relate
to
accounts
for
services
rendered.
The
remainder
of
the
documents
are
irrelevant
or
are
privileged.
Accordingly,
none
of
the
documents
76
through
151
are
to
be
produced.
(d)
Documents
152
through
297.
These
documents
relate
to
action
C9422189
(Vancouver
Registry)
where
Frederick
Kranz
and
Kranz
Investments
Ltd.
are
the
plaintiffs
and
the
Corporation
of
the
City
of
Nelson
and
Trainor
Mechanical
Contractors
Ltd.
are
the
defendants,
Action
C922371
(Vancouver
Registry)
where
Frederick
Kranz
is
the
plaintiff
and
the
Corporation
of
the
City
of
Nelson
and
A.D.
Schneider
are
the
defendants,
and
a
proposed
claim
by
the
Owners
Strata
Plan
VR29
against
Mr.
Kranz.
A
considerable
number
of
the
documents
relate
to
accounts
rendered.
The
major
of
the
documents
relate
to
settlement
of
the
question
of
the
balance
due
and
owing
to
the
Strata
Corporation
of
Strata
Plan
VR29.
On
the
basis
of
irrelevancy,
on
the
basis
that
some
of
the
documents
represent
accounts
rendered
and
on
the
basis
that
privilege
attaches
to
the
work
product
and
the
advice
given
as
set
out
in
the
documents,
these
documents
will
be
not
produced.
(e)
Documents
298
through
324.
These
documents
relate
to
the
Supreme
Court
of
British
Columbia
Action
No.
C922371
(Vancouver
Registry)
where
Frederick
Kranz
was
the
plaintiff
and
the
Corporation
of
the
City
of
Nelson
and
A.D.
Schneider
were
the
defendants.
There
are
some
statements
of
account
and
some
documents
which
were
filed
in
Action
C922371.
On
the
basis
of
relevancy,
these
documents
are
not
to
be
produced.
(f)
Documents
325
through
418.
These
documents
relate
to
the
Supreme
Court
of
British
Columbia
Kranz
v.
Boiler
Inspection
&
Insurance
Co.
of
Canada
(April
3,
1995),
Doc.
Vancouver
C892202
(B.C.
S.C.)
where
Frederick
Kranz
and
Kranz
Investments
Ltd.
were
the
plaintiffs
and
The
Boiler
Inspection
and
Insurance
Company
of
Canada
was
the
defendant.
Based
on
relevancy,
accounts
rendered
relating
to
the
matters,
opinion
letters
provided
relating
to
the
trial
and
on
the
basis
of
privilege,
these
documents
shall
not
be
produced.
(g)
Documents
419
through
580.
These
documents
relate
to
the
Supreme
Court
of
British
Columbia
Action
No.
C922371
(Vancouver
Registry)
where
Frederick
Kranz
was
the
plaintiff
and
the
Corporation
of
the
City
of
Nelson
and
A.D.
Schneider
were
the
defendants.
Documents
419
through
449,
452
through
470,
528
through
530
are
accounts
rendered
relating
to
this
and
other
actions
and
are
privileged.
The
following
documents
relate
to
instructions
given
or
discussions
regarding
instructions
between
the
client
and
counsel
and
are
not
to
be
released:
450
and
451.
The
remainder
of
the
documents
are
not
relevant
to
these
proceedings
or
relate
to
instructions
received
and
matters
of
confidentiality
as
between
solicitor
and
client.
Accordingly,
none
of
the
documents
419
through
580
are
to
be
produced.
Order
accordingly.
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