PRACTICE |
Discovery |
Production of Documents |
AFS and Co. Limited Partnership No. 5 v. Canada
T-1336-00
2001 FCT 422, Heneghan J.
1/5/01
21 pp.
Applicants number of corporate bodies, partnerships, two individuals involved in transactions relating to theatrical distribution of motion pictures owned by Warner Bros.--Offering partnerships obtaining theatrical distribution rights in U.S. for certain motion pictures--Incurred distribution expenses subsequently deducted--Canada Customs and Revenue Agency (CCRA) challenging deductibility of distribution expenses--Requesting production of documents under Income Tax Act, s. 231.4--Law firm of Heenan Blaikie representing moving parties in relation to transactions--Asserted solicitor-client privilege on behalf of applicants concerning certain documents--Retained documents for which solicitor-client privilege asserted, under seal as custodian--Application made under Act, s. 232(4) for order determining whether solicitor-client privilege applies to retained documents--Solicitor-client privilege must be considered within context of Act, s. 232(1)--Two distinct branches of solicitor-client privilege: litigation privilege and legal advice privilege--Hallmark of solicitor-client relationship confidentiality--Solicitor-client privilege applies to communications, oral and written, made in context of that relationship, for purpose of obtaining legal advice--Party asserting privilege carries evidentiary burden--Applicants must show, on balance of probabilities, documents in question communication between solicitor and client, involving seeking, giving of legal advice, which parties intend to be confidential--Respondent conceding solicitor/client, solicitor/agent communications, solicitor's work product subject to privilege--Documents identified herein subject to solicitor-client privilege, exempt from disclosure--Application allowed--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, ss. 231.4 (as am. by S.C. 1999, c. 17, s. 168(c), 232 (as am. by S.C. 1994, c. 13, s. 7(1)(h); 1998, c. 19, s. 230; 1999, c. 17, s. 167(c)).