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Home > Our Insights > Supreme Court of Canada Decides Income Tax Act Sections are Unconstitutional – and Strengthens Solicitor-Client Privilege in Canada (Attorney General) v. Chambre des notaires du Québec & Canada (National Revenue) v. Thompson
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Supreme Court of Canada Decides Income Tax Act Sections are Unconstitutional – and Strengthens Solicitor-Client Privilege in Canada (Attorney General) v. Chambre des notaires du Québec & Canada (National Revenue) v. Thompson

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June 6, 2016

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On June 3, 2016, the Supreme Court of Canada, in two related decisions, strengthened the legal protection of solicitor-client privilege in relation to Canada Revenue Agency’s (CRA) audit and tax collection powers when it decided the federal Income Tax Act’s “requirement” scheme is unconstitutional insofar as it applies to lawyers and notaries, and the lawyers’ accounting records exception in the Act’s definition of “solicitor-client privilege” is completely unconstitutional.

Broadly, solicitor-client privilege is the fundamental right of every person that his, her or its confidential communications with counsel for the purpose of obtaining legal advice be exempt from disclosure. The Supreme Court of Canada’s decisions in these two cases strengthens the legal protection of solicitor-client privilege in relation to Canada Revenue Agency’s (CRA) audit and tax collection powers by:

  • Continuing to support and uphold the primacy of solicitor-client privilege, including in the context of protecting privileged information and documentation from release to CRA.
  • Expanding the scope of protected documentation to include lawyers’ so-called “accounting records” pertaining to their clients, including client names.
  • Confirming the privilege is for the client to waive, should she (or it) so choose – but noting that the privilege only applies to documentation and information generated or communicated in the confidential seeking or obtaining of legal advice.

Based on these decisions, Quebec notaries and lawyers across Canada ought no longer respond to CRA-issued requirements seeking information respecting their clients.  And, no one – notary, lawyer or client taxpayer – will be required to produce any notaries and lawyers’ “accounting record[s]”.

Requirements Sections Unconstitutional. In Canada (Attorney General) v. Chambre des notaires du Québec, the CRA issued to various Quebec notaries (who give legal advice) “requirements” under section 231.2 of the federal Income Tax Act for the purpose of obtaining information and or documents pertaining to their clients for CRA’s tax collection or audit purposes. The Chambre des notaires brought a legal action against CRA asserting the provisions of the Act allowing CRA to issue requirements are unconstitutional and invalid on the basis they breach solicitor-client privilege, and thus an unreasonable seizure in breach of section 8 of the Canadian Charter of Rights and Freedoms. These include: section 231.2(1) authorizing CRA to send a notice to any person requiring her to provide information or documentation concerning a taxpayer within a set time period, but without notifying that taxpayer; section 231.7 permitting CRA to go before a judge for enforcement of an issued requirement to which the recipient had not responded; and the portion of the section 232(1) exempting from the definition of “solicitor-client privilege”, for purposes of issued requirements, “an accounting record of a lawyer [which term includes Quebec notaries], including any voucher or cheque”. The SCC agreed the Act’s “requirement” scheme is unconstitutional insofar as it applies to lawyers and notaries because it’s an unreasonable seizure in breach of section 8 of the Charter, and the lawyers’ accounting records exception in the Act’s “solicitor-client privilege” definition is wholly unconstitutional.

Presumptive Privilege. In Canada (National Revenue) v. Thompson, CRA issued the taxpayer (a lawyer) a requirement under section 231.2(1) of the Act requesting documents pertaining to his personal finances and his current accounts receivable listing. The taxpayer responded by claiming solicitor-client privilege over details of his accounts receivable, such as client names. The Supreme Court of Canada applied its decision in Chambre des notaires, deciding because the lawyers’ accounting records exception to the s. 232(1) definition of “solicitor-client privilege” is unconstitutional, the taxpayer had no obligation to disclose the withheld client documentation. The Court further stated that information in those documents is “presumptively privileged” and could only be disclosed if a court first determined solicitor-client privilege did not apply. And because, pursuant to Chambre des notaires, the Act’s entire “requirement” scheme was unconstitutional against taxpayers acting in their capacity as lawyers, as in this case, there was no need to refer this case back to the Federal Court to determine the actual nature of the client-related documentation the taxpayer had withheld.


Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Tax Solutions Team to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    Nov 14, 2014

    On November 13, 2014, the Supreme Court of Canada (SCC) effected a significant development in Canadian contract law by recognizing the…

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  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    This publication has been updated as at August 25, 2022. Many believe that only public companies or large, established companies with many…

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  • Canadian Treaty Shopping Proposal Shelved Pending Final OECD Recommendation, First To Be Released September 16

    Sep 11, 2014

    The Canadian federal government has been concerned for some time about “treaty shopping” by non-residents – the practice of non-residents…

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  • Court Orders Feds to Reconsider Canadian Forces Housing Compensation Policy in Brauer v. The Queen

    May 26, 2014

    On May 23, 2014 the Federal Court of Canada decided the Federal Treasury Board Secretariat’s interpretation of the policy for compensating…

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  • Estate Planning Solutions: 5 FAQs About Alter Ego & Joint Partner Trusts

    May 22, 2014

    This publication has been updated as at February 17, 2021. Trusts offer a very useful estate planning solution for a wide variety of special…

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    Nov 1, 2013

    Recent decisions of securities regulators and amendments to Canadian securities laws demonstrate regulators' lowered tolerance for insiders who…

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  • General Security Agreements: Tips & Traps

    Aug 28, 2013

    A general security agreement (GSA) is the most common form of personal property security used in the Atlantic Provinces to secure commercial…

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    In Franchise Canada’s Spring 2013 “Viewpoints” feature, McInnes Cooper franchise lawyer Michael Melvin answers this question for…

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  • Legal Update: The Duty to Consult – Important Lessons from Canada’s Mining Sector

    Mar 15, 2013

    Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…

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  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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  • Comment on Copthorne Holdings Limited V. The Queen

    Dec 16, 2011

    In a unanimous decision rendered by Justice Rothstein, the Supreme Court of Canada today dismissed the appeal of Copthorne Holdings Limited,…

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  • DFO Announces that Corporations May Own Fishing Licenses

    Mar 7, 2011

    Effective April 1, 2011, the fishing licensing policy for the Atlantic Canada and Quebec inshore fishery will change to allow inshore fishing…

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  • A Closer Look at the Regulations Under the New Brunswick Franchises Act

    Oct 1, 2010

    McInnes Cooper franchise lawyer Michael Melvin highlights some of the significant features of the Disclosure Documents Regulation and the…

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  • What are electronic disclosure documents and why and how may they be used?

    May 31, 2010

    In Franchise Canada’s May/June 2010 “Ask A Legal Expert” feature, McInnes Cooper franchise lawyer Michael Melvin answers this question for…

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