Crampton CJ found that three documents prepared for the intervenor, an income fund, by its general counsel and secretary were subject to solicitor-client privilege, even though they were lean on legal content. He noted that "no one should be able to 'look into the mind' of the lawyer as he or she is preparing a case" (para. 23).
- One document was a letter to the trustees describing the structure, objectives and broad steps of the reorganization of the intervenor into an income fund. The document referred to counsel having been sought, and contained two statements of belief that appeared to convey a legal conclusion (para. 34).
- One document was clearly marked as being privileged and confidential, and purported to memorialize the lawyer's legal analysis. Although it was often difficult to tell whether statements were based on legal or accounting considerations, Crampton CJ stated that he would "err on the side of caution" (para. 35).
- The final document was a memo that contained no legal advice. However, the memo had been created with the lawyer "while working with him to analyze the legal tax implications of various steps in the reorganization." In other words, the document was prepared "for the purpose of providing ... legal advice" (para. 42).