Legal Feeds Blog
Lawyers and notaries scored a big victory for solicitor-client privilege today, as the Supreme Court of Canada ruled that legal professionals cannot be compelled by a provision in tax law to divulge their clients’ identities or any other privileged information.
|‘These are very strong rulings for the protection of solicitor-client privilege and for the legal profession,’ says Mahmud Jamal.|
Both cases centred on s. 232 of the Income Tax Act, which specifically excludes a lawyer’s accounting records from solicitor-client privilege.
In the case of lawyer Duncan Thompson, the Canada Revenue Agency had sent an order for various documents, including his accounts receivable. Thompson complied with parts of the order but refused to divulge the identity of his clients, arguing that to do so would be to violate their privilege.
The issue at stake in Thompson, then, was whether the identity of a lawyer’s clients fell under solicitor-client privilege. Here the Supreme Court is clear: there is no difference between information about a communication with the client and information about the status or identity of a client.
As the decision states: “This Court has rejected a category-based approach to solicitor-client privilege that distinguishes between a fact and a communication. In this case, absent proof to the contrary, all of the information sought is prima facie privileged.”
In Chambre des notaires, where notaries were similarly ordered to provide privileged tax documents, the court addressed the constitutional validity of the exclusion in the Income Tax Act, finding that it fails to meet the test of “absolute necessity” required to abrogate the fundamental principle of justice that is solicitor-client privilege.
“Section 231.2(1) . . . and s. 231.7 . . . are unconstitutional, and inapplicable to notaries and lawyers in their capacity as legal advisers. The exception for a lawyer’s accounting records set out in the definition of ‘solicitor-client privilege’ in s. 232(1) of the ITA is unconstitutional and invalid.”
Mahmud Jamal, the lawyer at Osler, Hoskin & Harcourt LLP who represented the Canadian Bar Association as an intervener, calls it a “very good day” for solicitor-client privilege and the law.
“These are very strong rulings for the protection of solicitor-client privilege and for the legal profession,” he says. “They affirm that solicitor-client privilege is constitutionally protected in Canada, regardless of the context.”
There had been some concern, he says, that the court might weaken privilege where taxation matters are concerned.
This would have led lawyers and notaries to become “informants or archives of information against the interests of their clients. . . . The court has all but shut the door on this possibility, though it will be left to Parliament to attempt to devise a new, constitutional scheme if it chooses to do so.”
Indeed, the court suggests that the constitutional defects around the CRA’s orders “could easily be mitigated and remedied by way of measures that are compatible with the state’s obligations relating to the protection of professional secrecy.”
A process of judicial review, for instance, could allow the court to determine the validity of a claim of privilege around taxation documents, although it’s not immediately clear how to avoid the Catch-22 scenario that would have a lawyer disclose privileged information (such as identity) in order to assert the privilege.
“I think what the court contemplates is a lawyer advancing the client’s privilege claim without identifying the name of the client,” says Jamal.
“This can be done by the lawyers providing sufficient information to allow for the claim of privilege to be evaluated by the court, or perhaps by allowing the court to review the documents in camera. There are a number of options.”
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All photos: Alex Robinson
Former law clerks descended on Osgoode Hall in Toronto Wednesday evening to reminisce about their time at the Court of Appeal and reconnect with old friends.
“We often speak of the Court of Appeal family,” said Chief Justice George Strathy.
“We work in an intense, fast-paced environment and become very close to the clerks. So this really does feel like a bit of a family reunion.”
Dozens of former law clerks attended the event and were treated to a musical performance by judges, singing popular songs with altered law-themed lyrics.
The Court of Appeal brings in 17 new clerks every year to work closely with judges, which Strathy says is an experience that makes them better lawyers in whatever path they choose to take.
“I asked the law clerks to take the message back to their law firms to encourage young lawyers to entire the clerking program and to hire young law clerks, because they get it,” Strathy says.
Some former clerks came from as far away as France to be at the event at Osgoode Hall.
- Judge orders stay of criminal charges until accused gets government-funded counsel
An Ontario Superior Court judge has ordered a stay of criminal charges against an alleged drug supplier until he gets a government-funded defence lawyer.
|'It should be obvious . . . the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,' wrote Justice Ian Nordheimer.|
A single income individual in Ontario would have to make $12,000 or less in order to qualify for legal aid, according to the ruling in R. v. Moodie.
“It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country,” wrote Nordheimer.
“As just one comparator, in a report issued last year, Statistics Canada calculated the low income cut-off, before tax, for a single person living in a metropolitan area (more than 500,000 people) for 2014 at $24,328, or more than twice the figure that Legal Aid Ontario uses,” he noted. “The low income cut-off is the level of income below which persons are paying a disproportionate amount of their income for basic necessities (food, shelter and clothing).”
The Crown had argued the applicant failed to take adequate steps to come up with enough funds to pay defence counsel, suggesting he could have asked for a bank loan, got a second job, or asked a family member to co-sign for a loan. Nordheimer said none of these suggestions are realistic.
“No financial institution is going to loan the applicant money given his income level, his lack of exigible assets, and his outstanding credit card debt,” said the judge. “The applicant’s father has made it clear that he is not going to assist his son in any way. Unfortunately, the applicant’s mother is no better situated financially, than is the applicant, in terms of co-signing for a loan.”
Partly because the applicant’s bail conditions impose a curfew, he was also unable to find a second job, the judge said.
Rowbotham applications have become more common in recent years, according to criminal lawyer Sean Robichaud.
“In the past five years, I’ve seen Rowbotham applications skyrocket and the reason for that, it seems, just as the justice pointed out, is [that] the threshold and criteria that are being used by legal are entirely out of touch with the standards of poverty and need for people seeking legal assistance who can’t afford it,” Robichaud says.
But part of what’s driving Rowbotham applications is also LAO’s reluctance to grant change of solicitor requests when an accused no longer wishes to be represented by their legal aid lawyer, says Robichaud. That leaves individuals who can no longer continue their relationship with their current counsel without a lawyer.
“The change of solicitor application is a different procedure altogether that has nothing to do with poverty, therefore it’s a way for [LAO] to claw back on certificates without violating their own internal polices that have been set by the government,” says Robichaud.
He says these kinds of administrative difficulties add to defence counsel’s hesitation to take on legal aid certificates.
For its part, Legal Aid Ontario says it has to make do with its fixed funding from the province.
“As with all legal aid plans, Legal Aid Ontario operates within a fixed budget so must be responsible in how the public money it receives from the Ontario government is spent,” says spokesman Feroneh Neil.
“The demand for legal aid assistance for low-income Ontarians is high. While the province has recognized this by raising the legal aid financial eligibility thresholds, Legal Aid Ontario has a yearly budget it must adhere to and must prioritize, in accordance with its legislation, the cases it is able to fund.”
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- Judges hits lawyer with personal costs over ‘bizarre’ claim he did not review file
A judge has ruled against a Vancouver lawyer for alleging the judge did not review a file related to an immigration case. The lawyer, Lawrence Wong, was ordered to pay $1,000 by Federal Court Justice Richard Bell.
|An immigration lawyer tried to claim a judge hadn’t looked at his file before dismissing it because there were no markings on it.|
The associate said in a deposition that there was “no marking, sticky note, hand writing, bent corner, crease or any other discernible sign of them having been read,” and also said he saw no signature of a justice of the federal court.
“The original position of the applicant, denied at the oral hearing of this matter . . . is that I did not read the file. Of course, if I did not do so, such conduct would have constituted a serious violation of my oath of office,” said the ruling, in Liang v. Canada (Citizenship and Immigration).
At a hearing May 20, Wong allegedly backed away from saying the judge hadn’t read the file, and instead said it may have been put in the wrong place.
“Essentially, Mr. Wong contended that the case was so meritorious that any reasonable judge would have granted leave and Registry staff must have placed a ‘leave granted’ file in the ’leave dismissed’ pile. In essence, Mr. Wong contends either serious wrongdoing on the part of one of Her Majesty’s justices or serious negligence on the part of the Registry staff,” said the ruling.
Bell says the allegations were wrong on a number of counts, including the fact the allegations were founded on a notion that a judge would mark a publicly accessible file. He also said it “seems to presume a justice will make markings on court documents rather than in a bench book.”
The judge says in response to the allegations, he consulted the registry in Ottawa, and located his signature and date on the document in question, as well as his initials.
“In his written submission, which constitutes a public document, Mr. Wong, an officer of the Court, states that a review of the ‘court file, the physical file covers and the actual files show there is no written record of physical trace that will give the appearance that the file has been reviewed by a judge.’ This public statement made by an officer of the Court is inaccurate. The hand written signature of a judge, the hand written notation of the date and the identity of the Court constitute prima facie proof the file has been reviewed by a judge,” noted the ruling.
Bell called the allegations “an attack upon the integrity of the Court” that were “based upon speculation and innuendo and an inadequate verification at the Registry,” and ordered Wong to personally pay $1,000.
“Nothing was overlooked. Registry staff did not place the file in the ‘wrong pile.’ This motion for reconsideration is dismissed,” said the ruling.
Patricia Virc, a lawyer with Steinberg Title Hope & Israel LLP, says it was “kind-of a shocking thing for a lawyer to do” and she was “not surprised” costs were ordered against the lawyer personally.
“This was a very misguided approach to challenging a decision,” she says.
Robin Seligman, a senior immigration lawyer with Seligman Law PC, said this was “a fair decision by the court and registry.”
“It was frivolous and inappropriate for the lawyer to suggest that the judge had not read the file,” Robin Seligman told Legal Feeds.
Wong could not be reached for comment Tuesday.
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|Anyone wanting to flip through the physical pages of the Ontario Reports will have to fork out $225.|
Some lawyers say they still like flipping through the paper version of the ORs for the latest news on who is doing what and what jobs are available. With LSUC and insurance fees hovering around $5,000 a year, some are questioning the extra charge.
According to law society spokesperson Susan Tonkin, 48,000 lawyers and paralegals receive the electronic version of the Ontario Reports at no cost.
Last week, those who still are receiving the hard copy received an e-mail notifying them that after July 1, licensees and others who wished to continue to receive a hard copy, can make arrangements and pay a fee of $225 directly with LexisNexis. Otherwise, they’d be getting the digital edition e-mailed them to each week, at no additional charge.
Tonkin says the change to charging for the ORs "is in keeping with the preference of most readers, who are already accessing the digital version of the Ontario Reports.”
The change also reflects declining advertising revenues and was approved in February 2016.
LexisNexis will be communicating directly with readers about this change.
There is also an iTunes app for the weekly Ontario Reports.
Update 4:30 pm: More information added on the reason for the changes.
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