The Federal Court had granted a CRA application pursuant to s. 231.7 seeking an order requiring BMO Nesbit Burns (“NBI”) to provide an unredacted version of a spreadsheet in connection with CRA’s audit of suspected dividend rental arrangement transactions of NBI.
NBI in response to the initial request made pursuant to s. 231.1 had redacted a column in the spreadsheet on the basis that it reflected written legal advice it had received. In rejecting NBI’s claim of privilege, Kane J had stated that the spreadsheet was not more than the mere “operational outcome or end product of legal advice” and did not satisfy the requirement that it “communicate … the very legal advice given by counsel.” Locke JA found no reversible error in the findings below.
Regarding NBI’s submission (at para. 5) that “the Federal Court erred in putting it in an untenable position whereby it would have to reveal privileged information in order to adduce evidence of sufficient detail to convince the Federal Court that privileged information would be revealed,” Locke JA stated inter alia (at para. 6) that “NBI has … not convinced us that it could have corrected this insufficiency if it had referred to privileged information.”