Maintaining Legal Privilege In Commercial Transactions

A decision was released today by the Federal Court of Appeal that will give comfort to parties involved in commercial transactions: Iggillis Holdings Inc. v. Canada (National Revenue), 2018 FCA 51.

This case deals with the question of whether solicitor-client privilege applies to a legal opinion that is shared with other parties to a commercial transaction. In the past, these kinds of memos have been protected under common interest privilege (a subset of solicitor-client privilege). However, the decision of the Federal Court in Iggillis Holdings Inc. v. Canada (National Revenue), 2016 FC 1352, brought that into question.

In this case, a legal opinion on tax consequences of a corporate transaction was shared between parties to the transaction. The memo had been prepared primarily by counsel for one party with contribution from counsel for the other party. Following completion of the transaction, the Minister of National Revenue sought production of the memo.