Complaints against Canada's superior court judges are made to the Canadian Judicial Council under the Judges Act, R.S.C. 1985, c. J-1. Relying on a report of a distinguished University of Toronto law professor, the Chair of the reviewing committee dismissed the complaint. The complainant asked to see the report; the CJC refused, on the basis that the professor's report was protected by "solicitor-client privilege" and "public interest privilege". On review, the Federal Court judge agreed and on appeal, the FCA agreed with the Federal Court judge too. (Justice Stratas, one of the three FCA judges, dissented, though.)
As many people speak about the importance of "solicitor-client privilege" in tax law, this case is a useful reference for when the privilege arises and what it means. Here are highlights from the decision:
" The four elements of the test for determining whether a communication qualifies for legal advice privilege are well established: (1) it must have been between a client and solicitor; (2) it must be one in which legal advice is sought or offered; (3) it must have been intended to be confidential; and (4) it must not have had the purpose of furthering unlawful conduct: ..."
" The rationale for legal advice privilege is that individuals who require the assistance of a lawyer must be able to disclose fully and frankly to the lawyer all the information that the lawyer requires in order to provide sound advice in a legal context: ..."
" ... , the privilege extends not only to communications from client to lawyer, but also from lawyer to client, including a lawyer’s advice on legal issues on which she or he had been consulted by a public official or body in connection with the discharge of statutory responsibilities."
" It follows from the rationale for legal advice privilege that it does not protect the confidentiality of communications by third parties to a lawyer, at least when the third party was not acting on behalf of the client: ..." [So, if an accountant, acting for a taxpayer, gives information to the lawyer, generally the rule protects those communications. But if the lawyer gets reports from independent third parties not acting for the client (such as government officials, employers or customers, privilege would not generally apply to those communications.)]
" Legal advice has been held to include not only telling clients the law, but also giving advice “as to what should prudently and sensibly be done in the relevant legal context”: ..."
" ... a solicitor-client relationship is established for privilege purposes if the lawyer has been asked either to give legal advice or otherwise to act as a lawyer, that is, to perform services related to a legal issue pertaining to the client for which the professional skills and knowledge of a lawyer are required."
Justice Stratas dissented. Though he did not think privilege applied to the professor's report in this case, his reasons also help understand the rules that define when privilege arises and when you can lose it:
 In assessing a claim of privilege, where there is a retainer letter, it must predominate: ... The retainer letter, if one exists, defines, with binding contractual force, the nature of the relationship, the purpose of the lawyer’s retainer, whether any advice is to be given, and the nature of that advice. A retainer letter also often discloses the circumstances which have prompted the retainer, including the reasons for it."
" Voluntarily giving a document to third parties is an “obvious scenario” of waiver, because confidentiality, the prerequisite to the maintenance of privilege, has been lost: ..." [Keep this in mind: If you disclose your lawyer's letters or your communications to him to third parties who aren't also acting for you or involved in the same case, you may "waive" (i.e., give up) the privilege.]
For more on which client documents are not protected (such as invoices to clients), see my notes on Thompson v. CRA
See Slansky v. Canada (Attorney General), 2013 FCA 199 (Evans)