Date: 19991220
Docket: T-384-98
BETWEEN:
1185740 ONTARIO LIMITED
Applicant
- and -
THE MINISTER OF NATIONAL REVENUE and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
NADON J.
[1] On May 11, 1998, I made an Order arising from a motion filed by the applicant for production of documents purportedly in the possession of the Respondent Minister. I decided, inter alia, that deleted portions of two memoranda, dated October 30, 1997 and February 2, 1998, were protected by solicitor-client privilege and that consequently, the Respondents could not be compelled to produce the deleted portions thereof.
[2] The Applicant appealed my decision and on September 15, 1999, the Court of Appeal allowed the appeal, in part1. At pages 3 and 4 of his Reasons for Judgment, Sexton J.A. made the following comments:
| [6] The appellant has raised for the first time in this Court the point that both memoranda show on the final page the word "attachments" and the appellant seeks production of them. If there were attachments, these also would have been before the Minister. To the extent that there were any attachments, they should be produced. |
| [7] Nadon J. also determined whether certain deleted portions of the two memoranda were protected by solicitor/client privilege and expressed the view that since the excerpted portions were truly legal advice, the respondent would not have been compelled to produce them. Unfortunately, Nadon J. did not have before him the excerpted portions and therefore was unable to determine whether or not indeed there was solicitor/client privilege or whether it had been waived. It is clear that a court must examine the actual statements said to be privileged in order to draw a conclusion as to whether privilege arises or whether it has been waived. This has been made clear by the Supreme Court of Canada in R. Campbell [1999], S.C.J. No. 16 (April 22, 199) and in Solosky v. The Queen [1980] 1 S.C.R., 821 at 837. |
| [8] For the above reasons, the appeal should be allowed, but without costs. The decision of Nadon J. dated May 11, 1998 should be set aside and the matter remitted to him with the direction to review the expunged portions in order to determine whether solicitor/client privilege exists and whether it has been waived. If there are any "attachments" to the memoranda, they should be produced. If no such attachments exist, the respondent should be allowed to file affidavit material to this effect. The appeal is dismissed in all other respects. |
[3] On October 7, 1999, I directed the Respondents to provide me with copy of the expunged portions of the memoranda for review. On October 13, 1999, counsel for the Respondents wrote to the Administrator of the Court enclosing the relevant documents for my review. On November 5, 1999, I heard the parties" submissions by way of a teleconference.
[4] With respect to the attachments referred to in the Court of Appeal"s decision at paragraphs 6 and 8, the attachments were provided by the Respondents to the Applicant and, as a result, the Respondents have complied with the Court of Appeal"s decision. Counsel for the Applicant argued that the Respondents ought to have filed an affidavit with the attachments. In my view, that argument is without merit, since the Court of Appeal simply directed the Respondents to produce the attachments, if they were in existence.
[5] With respect to the excerpted portions of the memoranda, the Court of Appeal directed that I examine the deleted portions of the actual documents to determine if they were privileged and if so, whether privilege had been waived. The Respondents have provided me with the expunged portions of the memoranda in regard to which they claim solicitor-client privilege, and I have carefully examined the expunged portions.
[6] In Lumonics Research Ltd. v. Gordon Gould, Refac International Limited, and Patlex Corporation [1983], 2 F.C. 360, the Federal Court of Appeal made it clear that the party opposing the production of documents by reason of privilege had the onus of establishing the facts relevant to the claim of privilege. In my view, the Respondents herein have not met that onus. Counsel for the Applicant argued that it was incumbent on the Respondents to establish the facts which gave rise to the privilege which they claimed, and that the Respondents had not adduced any evidence in that regard. I agree entirely with counsel"s submission. Counsel argued, rightly in my view, that Ms. Castle, counsel for the Respondents, could not by way of argument adduce in evidence the facts on which the Respondents relied for their claim of privilege. Obviously, that contention cannot be disputed. Counsel for the Applicant referred me to the decision of Rothstein J. (as he then was) in Evans (K.F.) Ltd. v. Canada (Minister of Foreign Affairs) [1996] 106 F.T.R. 210. In Evans, Rothstein J. had to decide whether solicitor-client privilege attached to certain documentary material. In support of his claim that the documents did not have to be produced by reason of solicitor-client privilege, the Respondent Minister filed the affidavit of Beverly Anne Chomyn, the solicitor who had given the legal advice at issue. At pages 213 and 214, Rothstein J. stated:
| [10] I turn first to the question of solicitor-client privilege. The action memoranda were not prepared by a solicitor but do reflect legal advice provided by a solicitor, Beverly Anne Chomyn. Without deciding the point., I will assume, for purposes of this application, that solicitor-client privilege may attach to advice or information provided by a solicitor that is incorporated into a document prepared by someone other than a solicitor. |
| [11] In an affidavit sworn by Ms. Chomyn she states: |
| "4. In subsequent numerous meetings and correspondence with my clients I provided legal advice on the administration of the law under the Export and Import Permits Act (EIPA) . I also provided legal advice with respect to the legal ramifications of the various policy considerations under the EIPA, the legal advice I provided was directed at preparing my clients for this anticipated litigation. |
| [12] She also states "severed portions identified as solicitor client privilege reflect advice I provided". As I read Ms. Chomyn"s affidavit, she is saying that deleted portions designated solicitor-client privilege reflect advice she gave, but she is not saying that her advice was reflected exclusively in the deleted portions. Indeed, it is obvious that much of the disclosed portions of the memoranda also reflect legal advice... |
[7] Mr. Justice Rothstein then went on to conclude that the Respondent had waived privilege because of partial disclosure. I need not address the issue of waiver, in view of my conclusion that the Respondents have not met their onus. It is clear from Mr. Justice Rothstein"s decision in Evans and the decision of the Court of Appeal in Lumonics that an affidavit setting forth the relevant circumstances is necessary to establish a claim of privilege . In the present matter, as the Respondents have filed no affidavit setting forth the relevant facts and circumstances, I am unable to decide whether the expunged portions of the memoranda are subject to a solicitor-client privilege. As the burden of proof was on the Respondents, the Applicant succeeds on its motion and the expunged portions will be produced by the Respondents within ten days of this Order.
Marc Nadon
JUDGE
OTTAWA, Ontario
December 20, 1999
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