CRA, Taxation, and Solicitor-Client Privilege

Canada (National Revenue) v Thomson, 2016 SCC 21

For a summary of the FCA decision see HERE

Companion Case: Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

This was a unanimous judgment of a seven (7) member court delivered by Wagner and Gascon JJ.  At issue was whether accounts receivable of a lawyer are immune from production to the CRA on the basis of solicitor-client privilege.

The Supreme Court of Canada held that Parliament expressly intended to exclude Accounting records of a lawyer from the scope of privilege. Its very purpose is to disclose what would otherwise be confidential information (para 3).  However, the exemption is invalid as applied to lawyers and notaries because it violates s 8 of the Charter.

FACTS

The CRA, in the course of an audit or enforcement action, used its broad powers to require information and documents relating to a particular taxpayer.  The Income Tax Act defines “solicitor-client privilege” to expressly exclude “an accounting record of a lawyer”.  The Minister argued that this exemption means that a lawyer can be compelled to produce accounting records, while the taxpayer argued that the records are privileged.  The taxpayer was asked to provide information about his accounts receivable, but only produced the balance owing and no further details claiming privilege.

The CRA applies for a compliance order pursuant to 231.7. The FC concluded that the ITA definition is a valid abrogation of privilege in regards to accounting records.  The FCA held that notwithstanding ITA s 232(1), privilege can attach to individual documents and to client names contained therein.

ANALYSIS

The self-reporting and self-assessing system of income taxation in Canada relies for its integrity on broad powers granted to the CRA to verify the accuracy of returns and to take collection action.  ITA s 231.2(1) allows the Minister to require the taxpayer or a third party to provide “any information or additional information, including a return of income or a supplementary return” or “any document” that the Minister deems necessary to achieve the purposes of the ITA.

When the CRA send a requirement to a taxpayer or a third party pursuant to 231.2, it may by summary procedure in 231.7 apply to a judge of the Federal Court obtain an order for the recipient to produce the documents in question. The FC judge may make the order if satisfied that “the information or document is not protected from disclosure by solicitor-client privilege within the meaning in subsection 232(1).  The party against whom the order is sought must prove to the FC judge that the document falls within the ITA definition of solicitor-client privilege to prevent disclosure.

The SCC reviewed the reasons of the FC and the FCA before conducting its own analysis.  The SCC began by reviewing the nature of solicitor-client privilege in Canada.  The Court noted that solicitor-client privilege is not merely an evidentiary rule but a rule of substance that is a principle of fundamental justice (para 17) – Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., 2004 SCC 18; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61; Maranda v. Richer, 2003 SCC 67; Solosky v. The Queen, [1980] 1 S.C.R. 821; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7.

The obligation of confidentiality is necessary for the preservation of the lawyer-client relationship which, in turn, is indispensable to the effective operation of Canada’s justice system (para 17).  Both communications and the facts connected with that communication (eg bills of account) are presumed to be privileged absent evidence to the contrary and irrespective of the context (para 19).  Legislation that purports to limit or infringe on solicitor-client privilege will be interpreted restrictively (para 24) unless the text, context, and purpose of the provision do not allow a restrictive interpretation as is the case with the ITA provision at issue (para 33).

The SCC stated that Parliament lacks the ability, through clear and unambiguous language, abrogate solicitor-client privilege, as this would be a violation of section 8 of the Charter where the information the government could obtain exceeds what is absolutely necessary for the administration of the ITA (para 35).  The ITA requirement scheme, as applied to lawyers and notaries, violates section 8 of the Charter in a manner that cannot be saved under section 1.

The court went on to provide guidance in the event of an amendment by Parliament to the disclosure provisions of the ITA.  It noted that privilege belongs to a client and can only be waived by a client.  A court faced with the question of privilege must afford the client affected with the opportunity to assert that privilege.  This cannot be done by a court acting alone, but rather the clients must be notified when a court is considering making an order that might result in the disclosure of privileged information and be given the opportunity to decide whether to contest the state’s request for disclosure and an opportunity to make submissions to that effect (para 40).

– Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3

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