PRACTICE |
Confidentiality orders |
Canada v. GlaxoSmithKline Inc.
A-553-04
2005 FCA 30, Sexton J.A.
24/1/05
10 pp.
Appeal of Tax Court of Canada interlocutory order issued in tax appeal--Tax Court issuing confidentiality orders respecting confidentiality of third party information necessary for conduct of tax appeal--Appellant subsequently giving respondent access to information--Tax appeal involving extensive examinations for discoveries, approximately 50 agreed statements of fact, none of which ultimately approved by parties--Some agreed statements of fact containing confidential information summaries provided by third parties--Respondent disputing correctness of some of proposed agreed statements of fact, some evidence previously given on discoveries--Respondent providing corrected answers to evidence given in examination--Appellant considering respondent's conduct abuse of process, moving to have tax appeal dismissed--Respondent filing affidavit-- Objecting to certain questions asked during extensive cross-examination thereon, particularly regarding agreed statement of facts, identity of recipients of confidential information-- Upon respondent's refusal to answer questions, appellant moving to compel answers--Tax Court holding none of questions should be answered since either subject to solicitor-client privilege, litigation privilege, irrelevant--Evidence clearly showing counsel for respondent passing confidential information to persons other than law firm personnel-- Necessary to determine individuals coming into possession of information and use made thereof (whether information used for present litigation or other purpose)--Respondent ordered to answer specific questions in cross-examination and provide names, addresses of recipients of confidential information, dates of disclosure since law firm potentially violating order-- Cross-examination questions involving agreed statements of fact and suggested changes seeking information beyond identity of persons reasonably expected to have knowledge of transactions--Persons suggesting changes not necessarily having knowledge of specific events, occurrences--Input possibly relating to legal advice, strategy issues, knowledge of which appellant not entitled to--Apart from confidential information, counsel for respondent entitled to provide information to third parties, obtain comments for use in litigation in Canada--Those communications subject to solicitor-client privilege--Counsel must be free to make full investigation and research without risking disclosure of information to opposing counsel--Circumscribing this right would circumscribe counsel's power necessary to represent client--Agreed statements of fact entered into for benefit of parties, court--Automatic disclosure of information obtained by counsel from third parties during drafting of agreed statements of fact to other party would discourage parties from negotiating agreed statements of fact--Questions in cross-examination not relating to confidential information subject to solicitor-client privilege or litigation privilege--Appeal allowed.