FCA rejects privilege for end product where claimant fails to show how document reveals legal advice

The danger is that CRA can use end products to reverse engineer legal advice

By Julius Melnitzer | April 19, 2023

A recent Federal Court of Appeal decision has done little to assuage the uncertainty as to whether and when legal advice “end product” is subject to solicitor-client privilege.

In BMO Nesbitt Burns Inc. v. Canada (National Revenue), a unanimous panel upheld Federal Court Justice Catherine Kane’s decision denying privilege to an unredacted spreadsheet, known as the Master Summary Pricing Model. NBI had resisted the Canada Revenue Agency’s request for the document claiming the computations in the spreadsheet flowed from legal advice that would be revealed if the entire document were disclosed.

“Because the decision is a little vague, it makes it difficult to determine where the court drew the line between documents that implement legal advice, which may not be privileged, or those which disclose legal advice, which are privileged,” said Scott Bower, the Calgary-based co-head of Bennett Jones LLP’s research and opinions practice. “But it’s a good warning to us all that when a client is implementing legal advice, the end product – if not privileged – can be used to reverse engineer that advice.” MORE . . .

Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.


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