Minister of National Revenue v. Cornfield, (2008) 379 N.R. 230 (FCA)

• Judge: Noël, Nadon and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 24, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 379 N.R. 230 (FCA);2008 FCA 156

MNR v. Cornfield (2008), 379 N.R. 230 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. JL.048

Law Society of British Columbia (appellant/intervenor) and S. Bruce Cornfield (appellant/respondent) v. The Minister of National Revenue (respondent/applicant)

(A-257-07; 2008 FCA 156)

Indexed As: Minister of National Revenue v. Cornfield

Federal Court of Appeal

Noël, Nadon and Ryer, JJ.A.

April 24, 2008.

Summary:

The Minister of National Revenue asked the court to issue a compliance order under s. 289.1 of the Excise Tax Act requiring a lawyer to provide certain documents and information relating to a client.

The Federal Court, in a decision reported at 312 F.T.R. 81, issued a compliance order. Gauthier, J., had granted the Law Society of British Columbia intervenor status in the application for the compliance order with respect to all issues concerning solicitor-client privilege, including the right to appeal in respect of those issues. The Law Society appealed. The Law Society did not challenge the issuance of the compliance order. Rather, it argued that the court erred in finding that the procedure in place for obtaining a compliance order, when lawyers were the holders of the documents sought to be produced, provided adequate safeguards for the protection of the solicitor-client privilege. The respondent argued that the only matter that could be appealed was the order given by the court. The Law Society argued that the right of appeal which it was granted by Gauthier, J., extended to this question.

The Federal Court of Appeal held that Gauthier, J.'s, order did not have the effect asserted by the Law Society and the Law Society's appeal should not have been brought. The appeal was dismissed.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - [See Practice - Topic 8986 ].

Practice - Topic 8986

Appeals - When appeal available - From preliminary, procedural and evidentiary rulings - The Minister of National Revenue applied for a compliance order under s. 289.1 of the Excise Tax Act requiring a lawyer to provide certain documents and information - The applications judge issued a compliance order - Gauthier, J., had granted the Law Society of British Columbia intervenor status in the application with respect to issues concerning solicitor-client privilege, including the right to appeal in respect of those issues - The Law Society appealed - The Law Society did not challenge the issuance of the compliance order - Rather, it argued that the applications judge erred in finding that the procedure in place for obtaining a compliance order, when lawyers were the holders of the documents sought to be produced, provided adequate safeguards for the protection of the solicitor-client privilege - The respondent argued that the only matter that could be appealed was the order given by the applications judge - The Law Society argued that the order of Gauthier, J., authorized the applications judge to rule on the adequacy of the procedure and that the right of appeal which she granted to the Law Society extended to this question - The Federal Court of Appeal held that Gauthier, J.'s, order did not have the effect asserted by the Law Society - Gauthier, J., did not have the authority to refer the procedural question raised by the Law Society for determination, and she did not purport to do so - She authorized the Law Society's intervention on the basis that it could be of assistance to the applications judge in disposing of the issues of whether the documents in issue were privileged and whether a compliance order should be issued - The Law Society's appeal should not have been brought and was dismissed.

Cases Noticed:

Minister of National Revenue v. Norris, [2002] 3 C.T.C. 346 (F.C. Protho.), refd to. [para. 2].

Wirick, Re, [2005] B.C.T.C. 1821; 51 B.C.L.R.(4th) 193; 2005 BCSC 1821, refd to. [para. 5].

Minister of National Revenue v. Vlug, [2006] F.T.R. Uned. 632; 2006 D.T.C. 6285; 2006 FC 86, refd to. [para. 5].

Minister of National Revenue v. Reddy, [2006] F.T.R. Uned. 165; 146 A.C.W.S.(3d) 568; 2006 FC 277, refd to. [para. 5].

Minister of National Revenue v. Singh Lyn Ragonetti Bindal LLP, [2005] F.T.R. Uned. B10; [2006] 1 C.T.C. 113; 2005 FC 1538, refd to. [para. 5].

Counsel:

Richard C.C. Peck, Q.C., for the appellant/intervenor;

No one appearing, for the appellant/respondent;

Elizabeth McDonald, for the respondent/applicant.

Solicitors of Record:

Peck and Company, Vancouver, British Columbia, for the appellant/intervenor;

Coristine Woodall, Vancouver, British Columbia, for the appellant/respondent;

John H. Sims, Q.C., Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent/applicant.

This appeal was heard on April 24, 2008, at Vancouver, British Columbia, before Noël, Nadon and Ryer, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Noël, J.A., on the same date.