Requesting information from lawyers and notaries

NUMBER: AD-21-05

DATE:  2021-08-06

ISSUED BY:  Policy and Technical Working Group – Compliance Programs Branch (CPB)

SECTIONS AFFECTED: International and Large Business Directorate, Small and Medium Enterprises Directorate, GST/HST Directorate, High Net Worth Compliance Directorate, and Scientific Research and Experimental Development Directorate.

SUBJECT: Requesting Information From Lawyers and Notaries

The purpose of this communiqué is to outline what can and cannot be sought when requesting information from lawyers in Canada and lawyers and notaries in Quebec in light of the Supreme Court of Canada (SCC) decisions in Chambre des notaires du Québec^{Footnote 1} and Thompson^{Footnote 2}. The communiqué also outlines alternative means for the Canada Revenue Agency (CRA) to obtain information that it can no longer seek from lawyers and notaries. The information being sought could be pertaining to an audit of a client of the lawyer or notary, or to an audit of the lawyer or notary.

This communiqué supersedes cancelled communiqué AD-10-04, Procedures for Requesting Information from Lawyers: Protection of Solicitor-Client Privilege.

This communiqué applies to CRA officials who have the authority to examine the records of and obtain information from taxpayers that may be relevant in the administration or enforcement of the Income Tax Act (ITA) and the Excise Tax Act (ETA) for audit purposes. It applies to the administration or enforcement of civil matters only.

For the purposes of this communiqué, if not otherwise specifically mentioned, the term taxpayer includes registrants and claimants. Annex A contains the relevant excerpts from the ITA and ETA.

Refer to communiqué AD-21-04, Privilege Claims for a description of the types of privilege that exist within Canada and to explain CRA’s approach to addressing claims of privilege. 

Background

Chambre des notaires

In 2005, the Chambre des notaires du Québec (Chambre) introduced before the Québec Superior Court a declaratory action against the Attorney General of Canada (AGC) and the CRA with the view of having sections 231.2 and 231.7 of the ITA and the accounting records exception in the definition of solicitor-client privilege in subsection 232(1) of the ITA declared to be unconstitutional and of no force and effect with respect to notaries. The Barreau du Québec joined in the proceedings for the purpose of having any declaration made by the courts to apply equally to lawyers.

In 2010, the Superior Court of Québec granted the Chambre’s action, declaring that sections 231.2, 231.7 and the definition of solicitor-client privilege in subsection 232(1) of the ITA were unconstitutional and of no force and effect with respect to notaries and lawyers in Québec. The Superior Court also declared prima facie privileged a series of seventeen types of documents, including offers to purchase buildings, trust accounting documents and disbursement statements. The AGC appealed the decision.

In its 2014 unanimous decision, the Court of Appeal of Québec adopted in large part the reasoning of the trial judge. The appeal was allowed solely to limit the scope of unconstitutionality to subsection 231.2(1), rather than section 231.2 in its entirety, and to the accounting record exception in subsection 232(1) rather than the definition of solicitor-client privilege in its entirety. The Court also struck out the paragraphs of the Superior Court’s judgment concerning the list of the seventeen types of documents that had been recognized as being prima facie privileged. The AGC sought and was granted leave to appeal to the SCC.

Thompson

Proceedings under section 231.7 of the ITA were initiated against Duncan Thompson, a solicitor from Alberta and a tax debtor, for purposes of collection against Mr. Thompson. Pursuant to a requirement for information issued under subsection 231.2(1) of the ITA, the CRA demanded from Mr. Thompson his list of accounts receivable relating to his law firm. Mr. Thompson objected, arguing that the information and documents he refused to provide, including the names of his clients, are protected by solicitor-client privilege and that section 231.2 of the ITA violated section 8 of the Canadian Charter of Rights and Freedoms (Charter). The Federal Court disagreed with Mr. Thompson’s submissions and granted the Minister’s application. Mr. Thompson appealed the decision.

The Federal Court of Appeal (FCA) allowed Mr. Thompson’s appeal in part. The Court found that in some circumstances, the records sought by the CRA may contain privileged information and that the clients whose names would be disclosed should be given an opportunity to assert a privilege claim. The Court then referred the matter back to the Federal Court to allow Mr. Thompson to obtain instructions from his clients and file new sworn affidavits from his clients in support of the privilege claim. The FCA also dismissed the taxpayer’s Charter challenge.

The CRA obtained leave to appeal the FCA decision to the SCC. The sole issue raised by the appeal was the statutory interpretation of the exclusion of a lawyer’s accounting records from the protection of solicitor-client protection, as defined in subsection 232(1) of the ITA.

 

The Supreme Court Decisions

The SCC concluded in Chambre des notaires du Québec and Thompson that the requirement regime in the ITA infringes on the right to be free from unreasonable search and seizure enshrined in section 8 of the Charter, and declared these provisions to be unconstitutional and inapplicable to lawyers and notaries. As a result, subsection 231.2(1) of the ITA (which authorizes the CRA to issue a requirement for information (RFI)) and section 231.7 of the ITA (which authorizes the CRA to file an application in court for a compliance order) do not apply to lawyers and notaries when they act in their capacity as legal advisers^{Footnote 3}.

The SCC also concluded that the definition of solicitor-client privilege in subsection 232(1) of the ITA is unduly restrictive as it excludes the accounting records of lawyers and notaries. The SCC noted that accounting records may not always contain privileged information, but they sometimes might^{Footnote 4}. The Court therefore concluded that the exception for a lawyer’s accounting records set out in the definition of solicitor-client privilege was unconstitutional and invalid. It is not appropriate to differentiate between communications and facts when determining whether something in the possession of a lawyer is privileged. Instead, all communications between a client and a lawyer or a notary and the information they share, while in the hands of the lawyer or the notary, are considered prima facie confidential in nature and privileged. The Court recognized that accounting records may not necessarily hold privileged information but in some cases the name of the client may be protected by privilege.

The SCC decisions apply to lawyers and notaries across the country, not just those in the province of Quebec. The SCC reiterated that the privilege belongs to the client and can only be waived by the client.

These decisions also impact the CRA’s ability to request information, under subsection 231.1(1) of the ITA, from lawyers or notaries when they are the taxpayer with respect to information considered to be held by them for their clients in their capacity as a legal adviser.

While the SCC decisions were based on provisions in the ITA, similar subsections in the ETA are impacted such as subsections 289(1) (the requirements for information provision) and 289.1(1) (the compliance order provision) and the definition solicitor-client privilege in subsection 293(1). Subsection 288(1) (the inspections provision) could also be impacted.

Application

General guidelines for using the information-gathering tools set out in the ITA and ETA

Refer to communiqué AD-21-03, Use of Information Gathering Tools for the general guidelines for using the information gathering tools set out in the ITA and the ETA.

Guidelines for requesting information from lawyers or notaries in light of the SCC decisions

In light of the SCC decisions, any client information or any records of communications with their clients held by lawyers and notaries in their capacity as legal advisers are presumed to be privileged and auditors should not request this information.

Auditors can seek information or documents from lawyers and notaries that they do not hold in their capacity as legal advisers, or that does not include privileged information.

The following general principles should be observed when evaluating whether to seek information and documents from a lawyer or notary:

• To the extent possible, information should be initially sought from a client and third parties before it is sought from the client’s lawyer or notary^{Footnote 5}.
• None of the measures and alternative means to obtain information or documents from lawyers, notaries or their banks can include obtaining privileged information as, post-Chambre des notaires du Québec, the CRA lacks any statutory authority to obtain privileged information.

Below are several scenarios concerning seeking information from lawyers, notaries and their financial institutions, what to consider, and the recommended course of action.

Annex B contains a list of the types of documents that could be held by a lawyer or notary in their capacity as a legal adviser, some alternatives to accessing the information, as well as the status of the CRA’s ability to access the documents. Annex C contains a list of the types of documents that could be requested from a lawyer or notary as a taxpayer under audit, some alternatives to accessing the information, as well as the status of the CRA’s ability to access the documents.

Seeking information from lawyers or notaries

1. Seeking information from a lawyer or notary (as a third party) regarding their client’s affairs where the information is related to the lawyer’s or notary’s capacity as a legal adviser.
   • The relevant provisions of the ITA are unconstitutional insofar as they apply to seeking client information held by lawyers and notaries in their capacity as legal advisers.
   • Auditors cannot request client information from a lawyer or notary held in their capacity as a legal adviser.
   • Seek the information from the lawyer’s or notary’s client. The client can be compelled to obtain the documents from the lawyer or notary and produce them to the CRA pursuant to a demand under section 231.1 of the ITA or section 288 of the ETA and if necessary pursuant to a compliance order under section 231.7 of the ITA or section 289.1 of the ETA. This approach will provide the client an opportunity to assert a claim of solicitor-client privilege.
2. Seeking information from a lawyer or notary (as a third party) regarding their client’s affairs, where the information is not related to a lawyer’s or notary’s capacity as a legal adviser.
   • If the lawyer or notary only provides non-legal services and it is clear that information is not being held by the lawyer or notary in their capacity as a legal adviser, an RFI could be issued, and if necessary, enforced with a compliance order pursuant to section 231.7 of the ITA or section 289.1 of the ETA.
   • Where the lawyer or notary plays a dual role for clients – that is, in addition to legal services, the lawyer or notary provides separate non-legal services, for example as a trustee, financial broker or corporate executive:
     • If the non-legal information can be easily segregated and the distinction between non-legal and legal information is easy to establish, an RFI could be issued, and if necessary, enforced with a compliance order.
     • If the distinction between the roles is difficult to establish, auditors should consult with the Department of Justice (Justice) and with the functional program in Headquarters (HQ).
3. Seeking information from a lawyer or notary (as a taxpayer) regarding their own affairs, where the information is related to the lawyer’s or notary’s capacity as a legal adviser.
   • The relevant provisions in the ITA are unconstitutional insofar as they apply to seeking client information held by lawyers or notaries in their capacity as legal advisers.
   • Auditors cannot request client information from a lawyer or notary held in their capacity as legal advisers. Auditors cannot use any of the information-gathering powers under the legislation such as sections 231.1, 231.2, 231.4 (Inquiry) and 231.6 (Requirement for foreign-based information) of the ITA or sections 288, 289, 276(1) (Inquiry) and 292 of the ETA.
   • This includes any list of accounts receivable or any other client information of the lawyer or notary.
4. Seeking information from a lawyer or notary (as a taxpayer) regarding their own affairs, where the information is not related to the taxpayer’s law practice and does not disclose client information.
   • Auditors can seek personal or business records unrelated to the lawyer’s or notary’s practice of law, for example, the books and records of the lawyer’s or notary’s rental properties.
   • If the business records related to the lawyer’s or notary’s practice of law do not contain client information, auditors should continue to seek this information, for example, a lease between the lawyer or notary and a landlord, payroll records, and other business records that do not contain client information.
   • Where auditors need business records that contain client information in order to complete their review, and the lawyer or notary will only provide redacted business records, the auditor should consult Justice or the functional program in HQ.

Seeking information from a lawyer’s or notary’s financial institution (bank)

1. Seeking information from a lawyer’s or notary’s (as a third party) bank where the information concerns their clients’ affairs and is related to the lawyer’s or notary’s capacity as a legal adviser.
   • This information should first be sought from the lawyer’s or notary’s client.
   • One of the major issues identified by the SCC was that the client is unable to assert or waive privilege in this situation.
   • Auditors cannot seek information that may disclose the identity of unknown clients of the lawyer or notary.
   • If auditors are considering making these types of requests, they should consult Justice or the functional program in HQ.
2. Seeking information from a lawyer’s or notary’s (as a taxpayer) bank regarding their own tax affairs where the information is related to the lawyer’s or notary’s capacity as a legal adviser.
   • Auditors cannot seek information from a lawyer’s or notary’s bank that discloses client information, such as a list of clients. This would include seeking account statements that would disclose the names of a lawyer’s or notary’s clients such as the statement for the lawyer’s or notary’s trust or general account.
   • Auditors can request information that does not necessarily disclose clients’ names, such as:
     • Signature cards.
     • Listing of bank accounts.
     • Loan and credit card applications and corresponding monthly statements with copies of charges and payments.
3. Seeking information from a lawyer’s or notary’s (as a taxpayer) bank regarding a lawyer’s or notary’s tax affairs that is not related to the lawyer’s or notary’s capacity as a legal adviser.
   • Auditors should seek this kind of information from the lawyer or notary as a taxpayer first before seeking it from the lawyer’s or notary’s bank. If appropriate, a compliance application could be initiated to resolve any claim of privilege or to resolve any question as to whether the SCC decisions prohibit the seeking of such information. If the lawyer or notary as a taxpayer fails to provide satisfactory information, or if further verification is needed and the information is in the bank records, an RFI could be issued to the bank.
   • Auditors can seek any information unrelated to the lawyer’s or notary’s practice of law that does not contain client information, for example personal or business bank accounts, and the books and records of the lawyer’s rental properties.
   • Auditors can seek the business bank statements related to the practice of law, and any other information in the possession of the bank that does not contain client information. This would include any business bank accounts that do not deal with client funds.

Seeking information from the clients of the lawyer or notary

Documents of the clients in the possession of lawyers or notaries that are held in their capacity as legal advisers could be categorised as documents:

• that are likely not privileged (for example, a corporate minute book);
• may or may not be privileged (for example, a lawyer’s bill) or
• that are likely privileged (for example, a legal opinion).

For documents that are likely not privileged (such as a corporate minute book or an executed contract) should be sought initially from the client. If necessary, a compliance order can be sought against the client to compel the client to retrieve a non-privileged document being held at a lawyer’s or notary’s office.

Auditors can request a privileged communication from the client as the client may decide to waive privilege. If the communication is privileged, the CRA cannot compel the client to produce it however the client may waive privilege. If the client waives privilege, the auditor can obtain it. If the client refuses to waive privilege and it is a privileged communication, the auditor cannot obtain it. If there is some question as to whether or not it is a privileged communication, it can be resolved in a compliance application.

When making these types of requests, auditors could consult Justice or the functional program in HQ for additional assistance.

Further Assistance

The guidance provided in this communiqué is based on case law and developments in the courts as of the date of publishing. The guidance will be updated for any relevant future case law or legislative changes.

Reference Material

Annex A contains the relevant excerpts from the ITA and ETA.

Annex B contains a list of the types of documents that could be held by a lawyer or notary in their capacity as a legal adviser, some alternatives to accessing the information, as well as the status of the CRA’s ability to access the documents.

Annex C contains a list of the types of documents that could be requested from a lawyer or notary as a taxpayer under audit, some alternatives to accessing the information, as well as the status of the CRA’s ability to access the documents.

Neither list is an exhaustive list. The lists are for illustrative purposes.

Questions

It is likely that requesting information in some of the scenarios described above will be challenged. When challenged, auditors should consult Justice or the functional program in HQ.

Please direct any questions relating to this communiqué to your functional program contact at HQ.

Original signed by

Jennifer Ryan

A/Director General, International and Large Business Directorate
Compliance Programs Branch

Circulate to:  
Regional Directors of Programs
Assistant Directors of Audit
Regional Program Advisors
Directors General, Small and Medium Enterprises Directorate, GST/HST
Directorate, High Net Worth Compliance Directorate, Scientific Research and Experimental
Development Directorate, Criminal Investigations Directorate,
Compliance Services Directorate

Annex A – Excerpts from the Income Tax Act (ITA) and Excise Tax Act (ETA)

ITA

Inspections

231.1 (1) An authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Act,

• a. inspect, audit or examine the books and records of a taxpayer and any document of the taxpayer or of any other person that relates or may relate to the information that is or should be in the books or records of the taxpayer or to any amount payable by the taxpayer under this Act, and
• b. examine property in an inventory of a taxpayer and any property or process of, or matter relating to, the taxpayer or any other person, an examination of which may assist the authorized person in determining the accuracy of the inventory of the taxpayer or in ascertaining the information that is or should be in the books or records of the taxpayer or any amount payable by the taxpayer under this Act,

and for those purposes the authorized person may

• c. subject to subsection 231.1(2), enter into any premises or place where any business is carried on, any property is kept, anything is done in connection with any business or any books or records are or should be kept, and
• d. require the owner or manager of the property or business and any other person on the premises or place to give the authorized person all reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Act and, for that purpose, require the owner or manager to attend at the premises or place with the authorized person.

Requirement to provide documents or information

231.2 (1) Notwithstanding any other provision of this Act, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of this Act (including the collection of any amount payable under this Act by any person), of a listed international agreement or, for greater certainty, of a tax treaty with another country, by notice served personally or by registered or certified mail, require that any person provide, within such reasonable time as is stipulated in the notice,

1. any information or additional information, including a return of income or a supplementary return; or
2. any document.

Unnamed persons

(2) The Minister shall not impose on any person (in this section referred to as a third party) a requirement under subsection 231.2(1) to provide information or any document relating to one or more unnamed persons unless the Minister first obtains the authorization of a judge under subsection 231.2(3).

Inquiry

231.4 (1) The Minister may, for any purpose related to the administration or enforcement of this Act, authorize any person, whether or not the person is an officer of the Canada Revenue Agency, to make such inquiry as the person may deem necessary with reference to anything relating to the administration or enforcement of this Act.

Definition of foreign-based information or document

231.6 (1) For the purposes of this section, foreign-based information or document means any information or document that is available or located outside Canada and that may be relevant to the administration or enforcement of this Act, including the collection of any amount payable under this Act by any person.

• Requirement to provide foreign-based information
  (2) Notwithstanding any other provision of this Act, the Minister may, by notice served personally or by registered or certified mail, require that a person resident in Canada or a non-resident person carrying on business in Canada provide any foreign-based information or document.

Compliance order

231.7 (1) On summary application by the Minister, a judge may, notwithstanding subsection 238(2), order a person to provide any access, assistance, information or document sought by the Minister under section 231.1 or 231.2 if the judge is satisfied that

1. the person was required under section 231.1 or 231.2 to provide the access, assistance, information or document and did not do so; and
2. in the case of information or a document, the information or document is not protected from disclosure by solicitor-client privilege (within the meaning of subsection 232(1)).

Definitions

232 (1) In this section,

solicitor-client privilege means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person’s lawyer in professional confidence, except that for the purposes of this section an accounting record of a lawyer, including any supporting voucher or cheque, shall be deemed not to be such a communication.

ETA

Inquiry

276(1)The Minister may, for any purpose related to the administration or enforcement of this Part, authorize any person, whether or not the person is an officer of the Canada Revenue Agency, to make such inquiry as the Minister may deem necessary with reference to anything relating to the administration or enforcement of this Part.  

Inspections

288 (1) An authorized person may, at all reasonable times, for any purpose related to the administration or enforcement of this Part, inspect, audit or examine the documents, property or processes of a person that may be relevant in determining the obligations of that or any other person under this Part or the amount of any rebate or refund to which that or any other person is entitled and, for those purposes, the authorized person may

1. subject to subsection (2), enter any premises or place where any business or commercial activity is carried on, any property is kept, anything is done in connection with any business or commercial activity or any documents are or should be kept; and
2. require the owner or manager of the property, business or commercial activity and any other person on the premises or in the place to give to the authorized person all reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Part and, for that purpose, require the owner or manager to attend at the premises or place with the authorized person.

Requirement to provide documents or information

289 (1) Despite any other provision of this Part, the Minister may, subject to subsection (2), for any purpose related to the administration or enforcement of a listed international agreement or this Part, including the collection of any amount payable or remittable under this Part by any person, by notice served personally or by registered or certified mail, require that any person provide the Minister, within any reasonable time that is stipulated in the notice, with

1. any information or additional information, including a return under this Part; or
2. any document.

Unnamed persons

(2) The Minister shall not impose on any person (in this section referred to as a third party) a requirement under subsection (1) to provide information or any document relating to one or more unnamed persons unless the Minister first obtains the authorization of a judge under subsection (3).

Compliance order

289.1 (1) On summary application by the Minister, a judge may, despite subsection 326(2), order a person to provide any access, assistance, information or document sought by the Minister under section 288 or 289 if the judge is satisfied that

1. the person was required under section 288 or 289 to provide the access, assistance, information or document and did not do so; and
2. in the case of information or a document, the information or document is not protected from disclosure by solicitor-client privilege (within the meaning of subsection 293(1)).

Meaning of foreign-based information or document

• 292 (1) For the purposes of this section, foreign-based information or document means any information or document that is available or located outside Canada and that may be relevant to the administration or enforcement of this Part, including the collection of any amount payable or remittable under this Part by any person.
• Requirement to provide foreign-based information
• (2) Notwithstanding any other provision of this Part, the Minister may, by notice served personally or by registered or certified mail, require a person resident in Canada or a non-resident person who carries on business in Canada to provide any foreign-based information or document.

Definitions

293 (1) In this section,

solicitor-client privilege means the right, if any, that a person has in a superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person’s lawyer in professional confidence, except that, for the purposes of this section, an accounting record of a lawyer, including any supporting invoice, voucher or cheque, shall be deemed not to be such a communication.