Jun 3, 2016
Journalist David Dias recently wrote a post on Legal Feeds, the blog of Canadian Lawyer and Law Times, summarizing two Supreme Court of Canada decisions that address solicitor-client privilege in the context of section 232 of the Income Tax Act (ITA). At issue in Canada v. Thompson and Canada v. Chambre des notaires was whether lawyers and other legal professionals can be compelled to disclose the identity of and other information about their clients. Section 232 specifically excludes a lawyer’s accounting records from solicitor-client privilege. The court held that the “exception for a lawyer’s accounting records set out in the definition of ‘solicitor-client privilege’ in s. 232(1) of the ITA is unconstitutional and invalid.” Mahmud Jamal, a Partner in Osler’s Litigation Group acted for the Canadian Bar Association as intervenor and comments on the case in the post.
“These are very strong rulings for the protection of solicitor-client privilege and for the legal profession. They affirm that solicitor-client privilege is constitutionally protected in Canada, regardless of the context.”
Mahmud continues by suggesting that these decisions likely won’t be the last word on the issue. “I think what the court contemplates is a lawyer advancing the client’s privilege claim without identifying the name of the client. This can be done by the lawyers providing sufficient information to allow for the claim of privilege to be evaluated by the court, or perhaps by allowing the court to review the documents in camera. There are a number of options.”
Read David Dias’s full blog post Identity of tax clients solicitor-client privileged: SCC at Legal Feeds, June 3, 2106.