The appellants were charged with three summary conviction offences relating to tax evasion under the Excise Tax Act. Before trial, the Crown refused to produce or disclose 55 items of information. Among those items were two items revealing the identity of other taxpayers, which the Crown maintained constituted confidential information, and three legal opinions for which the Crown claimed solicitor-client privilege. The trial judge ordered production of these items, a decision that was overturned on judicial review. The appeal of the judicial review was dismissed.

Administrative law – Judicial review – Disclosure of documents – Jurisdiction – Failure to provide reasons – Evidence

Chapelstone Developments Inc. v. Canada, [2004] N.B.J. No. 450, New Brunswick Court of Appeal, December 2, 2004, Turnbull, Robertson and Richard JJ.A.

The trial judge ordered production of these five items, but failed to give reasons for the decision. The Crown sought judicial review. On judicial review the application judge concluded that the trial judge erred in ordering production/disclosure of these five items, and that judicial review was available to remedy this error.

It is accepted law that prerogative relief is only available if the error is a jurisdictional one. Mere errors of law do not qualify. The applicable legislation did not provide a right of appeal from interlocutory proceedings, so the Court considered whether judicial review was available with respect to the pre-trial document disclosure motion.

The Court of Appeal held that the trial judge did err in ordering production/disclosure of the five items. Further, the trial judge’s failure to give reasons for judgment in the case was held not to constitute a jurisdictional error.

However, the Court of Appeal extended the classes of jurisdictional error in finding that there was a jurisdictional error in the fact that the trial judge ordered disclosure of confidential information.

The Court of Appeal held that disclosure of the identities of the taxpayers who were not involved in the transactions giving rise to the offences for which the accused was charged was not necessary to the accused’s right to make full answer and defence.

On the question of the legal opinions sought to be disclosed, the Court of Appeal held that the inadvertent disclosure of one of these privileged communications did not constitute an implied waiver of solicitor-client privilege with respect to referenced information that was itself privileged.

The appeal was dismissed.

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