In this Tax Court motion, Justice Woods discusses when a taxpayer has impliedly waived privilege by pleading in its Notice of Appeal advice from a lawyer.
Here, the taxpayer said:
“[42] … 67. Until November 8, 2006, and particularly at the time of making the investments in the Funds, it was Gerbro’s understanding that the proposed amendments to section 94.1 of the ITA would come into force with retroactive effect to 2003.”
Did Gerbro waive privilege by discussing its “understanding”? No, said J. Woods. See paras. 49-61.
“[58] In my view, these judicial decisions generally follow the approach described by the British Columbia Court of Appeal inProcon Mining & Tunnelling Ltd. v McNeil, 2009 BCCA 281 (CanLII), 2009 BCCA 281, at para 19: “[t]o establish waiver, the disclosure sought must be “vital” or necessary to the opposing party’s ability to answer an allegation.”
“[59] The bar is set high for a court to require disclosure when the legal advice has not been put in issue by a party. In this motion, the Crown has not established that the legal communications are so important to their case that they should be divulged.”