In One York Street Inc. v 2360083 Ontario Limited, 2026 ONCA 176, the Court held that, by putting in issue its state of mind on signing a lease where the state of mind was based in part on legal advice, the defendant had waived privilege for the advice.
The authors note that the foregoing principle might be applied to a taxpayer who pleads that it had a bona fide belief in the legality of its filing position where subparagraph 152(4)(a)(i) (the normal reassessment period) is an issue. See Regina Shoppers Mall Ltd. v R, [1991] 1 CTC 297, 1991 CanLII 13935 (FCA). The authors suggest that emphasizing the objective reasonableness of the filing position might be preferable to referring to the taxpayer’s subjective beliefs about it.
Josiah Davis, Benjamin Grant, and Stanley Ndibe “Deemed Waiver of Solicitor-Client Privilege: Implications in the Tax Litigation Context” Tax for the Owner-Manager 26:3 (July 2026)
