Legal update: common interest privilege in commercial transactions

On March 6, 2018, the Federal Court of Appeal reversed the decision of the Federal Court of Canada in Iggillis Holdings Inc v Canada (National Revenue). As we discussed in a previous post, the trial court decision in Iggillis Holdings had called into question the availability of common interest privilege in commercial transactions. The trial court found that privilege with respect to a memorandum prepared by purchaser’s counsel (with input from seller’s counsel) outlining the most tax-efficient way to structure a series of transactions had been waived when it was shared on a confidential basis with the seller. On appeal, the Federal Court of Appeal noted that transactional common interest privilege is a firmly entrenched principle of Canadian law.  Specifically, the Court found that the courts of Alberta and BC (the relevant jurisdictions for the transaction under consideration) recognize that a party to a transaction does not waive privilege by disclosing…

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