The engagement letter between inter alia the taxpayer and other clients (the "Concord Parties"), a law firm that was to provide tax advice to the clients (Moscowitz Law), KPMG LLP (“KPMG Accounting”) and a second law firm (Farris Law) indicated that “KPMG Accounting’s role was to act as agent on behalf of the Concord Parties to retain Moskowitz Law and to provide Moskowitz Law with factual and other information.”
Hill J found that most of the documents before her for which the taxpayer claimed solicitor-client privilege were not protected from production to the Crown primarily on the following grounds (at paras. 74-75):
First, in some instances the document on its face contains insufficient information, because neither the author nor the recipient is listed and there is no clear connection to the provision of legal advice.
Second, in other instances KPMG Accounting provided independent legal advice beyond the scope of its role as agent under the Engagement Letter. … [P]roviding advice to a lawyer as part of an overall retainer, even if the lawyer then incorporates it into their own legal advice, does not make a communication privileged. Furthermore, KPMG Accounting provided that legal advice to Farris Law, a different law firm outside of the specific solicitor-client relationship established in the Engagement Letter.