[1] The appellant donated property to the Fort Saskatchewan Historical Society, which in turn applied for designation of the property pursuant to subsection 32(2) of the Cultural Property Export & Import Act, R.S.C. 1985, c. C-51. Such designation, if granted, could have had certain favourable tax consequences for the applicant.

[2] In a letter dated July 3, 2002, the request for designation was refused by Victoria Baker who, at that time was the Acting Manager, Movable Cultural Property Program, Heritage Policy Branch, Department of Canadian Heritage.

[3] The appellant brought an application for judicial review of Ms. Baker's decision.

[4] O'Keefe J. of the Federal Court determined that Ms. Baker and Michel Francoeur, who filed affidavits in the judicial review proceedings, did not need to answer certain questions asked by the appellant in the course of cross-examination on their affidavits. The questions pertained to communications between Ms. Baker and Department of Justice lawyer Philippe Madgin. O'Keefe J. determined that the communications were for the purpose of obtaining legal advice and were therefore subject to solicitor-client privilege. He refused to order that the questions pertaining to the communications be answered.

[5] This is an appeal from his decision.

ANALYSIS

[6] At the outset, we would observe that the communications in question should be available to the Court. However, in this appeal, they are not in the record and we have not been asked to consider them. Nor is Ms. Baker's July 3, 2002, decision in the record. We must therefore decide the appeal on the basis of the material before us.

[7] The appellant says the questions sought to be answered are for the purpose of determining whether the communications are subject to solicitor-client privilege.

[8] The appellant relies on the statement of Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565 at paragraph 50:

Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.

In making this statement, Binnie J. appears to have relied on a prior observation by Lord Hanworth M.R. in Minter v. Priest, [1929] 1 K.B. 655 at 668-69 (C.A.):

[I]t is not sufficient for the witness to say, "I went to a solicitor's office."... Questions are admissible to reveal and determine for what purpose and under what circumstances the intending client went to the office.

[9] Relying on this jurisprudence, the appellant says it is necessary to have regard to three considerations to determine whether the communications between Mr. Madgin and Ms. Baker are privileged:

1. the nature of the relationship between Mr. Madgin and Ms. Baker;

2. the subject matter of the advice; and

3. the circumstances in which the advice was sought and rendered.

[10] In oral argument in this Court, counsel for the appellant conceded that the relationship between Mr. Madgin and Ms. Baker was a solicitor-client relationship. However, he questioned the subject matter of the advice and the circumstances in which it was sought and rendered.

[11] We have read the affidavits of Ms. Baker and Mr. Francoeur that are in the record. Ms. Baker describes her position and her duties. She states that she was making a decision in respect of an application by the appellant under the Cultural Property Export and Import Act and that she sought legal advice in respect of the decision she had to make. Mr. Francoeur says he received Ms. Baker's request for legal advice, that Mr. Madgin was assigned to provide the advice requested and that the advice was provided.

[12] In the circumstances of this case, these affidavits contain prima facie evidence of the subject matter of the advice and the circumstances in which it was sought and rendered.

[13] However, the appellant seeks additional details. She asks whether a certain letter was given by Ms. Baker to Mr. Madgin, whether legal advice was sought in respect of that letter and whether that legal advice was before Ms. Baker when she made her decision.

[14] The subject matter of the advice and the circumstances in which it was sought and rendered are addressed in the affidavits of Ms. Baker and Mr. Francoeur. The questions asked do not deal with these aspects of the Baker and Francoeur affidavits.

[15] We do not see how the answers to these questions help to determine if solicitor-client privilege applies. Rather, it appears to be an attempt to find out more about the nature of the advice given.

[16] The questions asked, if answered, would provide the appellant with more information about the advice given and not whether the communications sought are subject to solicitor-client privilege.

[17] The appeal will be dismissed with costs.

"Marshall E. Rothstein"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-322-04

(APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED JUNE 9, 2004, DOCKET NO. T-1214-02)

STYLE OF CAUSE: JOAN A. WILLIAMSON v.

ATTORNEY GENERAL OF CANADA Representing the Minister designated

Under the Cultural Property Export and Import Act

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: December 14, 2004

REASONS FOR JUDGMENT OF THE COURT: DÉCARY, ROTHSTEIN,

MALONE JJ.A.

APPEARANCES:

David Rolf FOR THE APPELLANT

Tracy King FOR THE RESPONDENT

SOLICITORS OF RECORD:

Parlee McLaws

Edmonton, Alberta FOR THE APPELLANT

Morris A. Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

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