Evans
J.:
A.
Introduction
The
Canadian
Council
of
Christian
Charities
is
a
charitable
organization
that
represents
more
than
a
thousand
Christian
charities
across
Canada.
Their
members
comprise
approximately
3.5
million
individual
Christians
of
all
denominations.
One
of
the
Council’s
principal
purposes
is
to
provide
assistance,
guidance
and
professional
accounting
and
tax
expertise
to
the
organizations
that
it
represents,
many
of
which
are
small.
The
Council
has
been
actively
concerned
in
recent
years
with
the
provision
in
the
Income
Tax
Act
known
as
the
“clergy
residence”
deduction,
and
has
represented
its
members
when
dealing
with
Revenue
Canada
over
their
entitlement
to
claim
this
deduction.
The
Council
is
of
the
opinion
that
Revenue
Canada
has
taken
a
narrower
view
of
the
range
of
persons
eligible
to
claim
this
deduction
than,
on
its
proper
interpretation,
the
Act
provides.
Indeed,
there
are
a
number
of
cases
at
various
stages
of
the
assessment
and
appeal
processes
challenging
Revenue
Canada’s
position,
in
some
of
which
taxpayers
have
already
won
notable
successes.
No
doubt
with
this
litigation
in
mind,
and
the
possibility
that
statutory
reforms
may
be
under
consideration,
the
Council
made
a
request
to
the
Minister
of
Finance
under
the
Access
to
Information
Act
R.S.C.
1985,
c.
A-
I
for
the
disclosure
of
all
materials
in
the
possession
of
the
Department
relating
to
the
interpretation
of
“religious
order”,
one
of
the
terms
defining
the
scope
of
the
entitlement
to
the
“clergy
residence”
deduction.
The
Council
has
assisted
and
acted
as
advocate
for
constituent
members
who
maintain
that
they
are
“religious
orders”
within
the
meaning
of
paragraph
18(1)(c)
of
the
Income
Tax
Act.
The
Minister
identified
more
than
150
pages
of
material
falling
within
this
request,
but
advised
the
Council
that
nearly
all
of
it
would
be
withheld
under
specified
statutory
exemptions.
On
receiving
a
complaint
by
the
Council,
the
Information
Commissioner
investigated
the
Minister’s
decision
not
to
disclose,
and
recommended
that
some
of
the
documents
should
be
disclosed
to
the
Council,
either
in
whole
or
in
part.
The
Minister
acted
on
these
recommendations.
The
Commissioner
stated
in
his
report
to
the
Council
that
he
was
satisfied
that
the
Minister
had
disclosed
all
the
material
covered
by
the
Council’s
request
that
it
was
proper
to
disclose.
Still
dissatisfied
with
the
Minister’s
refusal
to
disclose
more
of
the
material
requested,
the
Council
applied
to
the
Court
for
a
review
of
this
decision
pursuant
to
section
41
of
the
Access
to
Information
Act.
In
January
1998
the
Council
brought
a
motion
for
an
order
that
the
Minister
disclose
to
its
counsel,
on
a
confidential
basis,
the
documents
in
question
so
that
he
could
prepare
for
the
application
for
review.
Rouleau
J.
dismissed
the
motion,
holding
that
counsel
could
adequately
make
submissions
on
the
interpretation
of
the
relevant
provisions
of
the
Act,
and
the
approach
to
be
taken
by
the
Court
to
them,
without
seeing
the
documents
themselves.
He
ordered
that
they
be
placed
in
a
sealed
envelope
to
be
opened
by
the
judge
when
examining
them
to
determine
whether
the
Minister
had
discharged
the
onus
imposed
by
section
48
of
proving
that
the
refusal
to
disclose
is
justified
in
law.
Accordingly,
I
heard
helpful
submissions
from
both
parties
on
the
factual
background
to
the
dispute,
and
on
the
applicable
legal
principles
and
statutory
provisions.
Following
these
generic
submissions,
I
examined
the
documents
with
the
assistance
of
counsel
for
the
Minister,
but
in
the
absence
of
counsel
for
the
applicant.
B.
The
Statutory
Framework
(i)
Income
Tax
Act
The
deduction
in
which
the
Council
is
interested
is
contained
in
the
following
provisions:
8(1
)(c)
Clergyman’s
residence
-
where
the
taxpayer
is
a
member
of
the
clergy
or
of
a
religious
order
or
a
regular
minister
of
a
religious
denomination,
and
is
in
charge
of
or
ministering
to
a
diocese,
parish
or
congregation,
or
engaged
exclusively
in
full-time
administrative
service
by
appointment
of
a
religious
order
or
religious
denomination,
an
amount
equal
to
(i)
the
value
of
the
residence
or
other
living
accommodation
occupied
by
the
taxpayer
in
the
course
of
or
by
virtue
of
the
taxpayer’s
office
or
employment
as
such
a
member
or
minister
so
in
charge
of
or
ministering
to
a
diocese,
parish
or
congregation,
or
so
engaged
in
such
administrative
service,
to
the
extent
that
that
value
is
included
in
computing
the
taxpayer’s
income
for
the
year
by
virtue
of
section
6,
or
(ii)
rent
paid
by
the
taxpayer
for
a
residence
or
other
living
accommodation
rented
and
occupied
by
the
taxpayer,
or
the
fair
rental
value
of
a
residence
or
other
living
accommodation
owned
and
occupied
by
the
taxpayer,
during
the
year
but
not,
in
either
case,
exceeding
the
taxpayer’s
remuneration
from
the
taxpayer’s
office
or
employment
as
described
in
subparagraph
(1);
8(1
)(c)
Résidence
des
membres
du
clergé
-
lorsque
le
contribuable
est
membre
du
clergé
ou
d’un
ordre
religieux
ou
ministre
régulier
d’une
confession
religieuse,
et
qu'il
dessert
un
diocèse,
une
paroisse
ou
a
la
charge
d’une
congrégation,
ou
s’occupe
exclusivement
et
à
plein
temps
du
service
administratif,
du
fait
de
sa
nomination
par
un
ordre
religieux
ou
une
confession
religieuse,
un
montant
égal:
(1)
soit
à
la
valeur
de
la
résidence
ou
autre
logement
qu'il
a
occupé
en
vertu
Ou
au
cours
de
l’exercice
de
sa
charge
ou
de
son
emploi,
à
titre
de
membre
ou
ministre
qui
ainsi
dessert
un
diocèse,
une
paroisse
ou
a
la
charge
d’une
congrégation,
ou
est
ainsi
occupé
à
un
service
administratif,
dans
la
mesure
où
cette
valeur
est
incluse
dans
le
calcul
de
son
revenu
pour
l’année
en
vertu
de
l’article
6.
(11)
soit
au
loyer
qu’il
a
payé
pour
une
résidence
ou
autre
logement
qu'il
a
loué
et
occupé
ou
à
la
juste
valeur
locative
d’une
résidence
ou
autre
logement
lui
appartenant
et
occupé
par
lui
durant
l’année,
jusqu’à
concurrence,
dans
chaque
cas,
de
la
rémunération
provenant
de
sa
charge
ou
de
son
emploi
ainsi
qu'il
est
indiqué
au
sous-alinéa(i);
The
Access
to
Information
Act,
subsection
24(1)
prohibits
the
release
of
information,
the
disclosure
of
which
is
forbidden
by
any
of
the
statutory
provisions
listed
in
Schedule
II
of
the
Act.
Section
241
of
the
Income
Tax
Act
is
included
in
the
Schedule.
241(1)
Except
as
authorized
by
this
section,
no
official
shall
(a)
knowingly
provide,
or
knowingly
allow
to
be
provided,
to
any
person
any
taxpayer
information;
(b)
knowingly
allow
any
person
to
have
access
to
any
taxpayer
information;
241(10)
“Taxpayer
Information”
means
information
of
any
kind
and
in
any
form
relating
to
one
or
more
taxpayers
that
is
(a)
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act,
or
(b)
prepared
from
information
referred
to
in
paragraph
(a),
but
does
not
include
information
that
does
not
directly
or
indirectly
reveal
the
identify
of
the
taxpayer
to
whom
it
relates.
241(1)
Sauf
autorisation
prévue
au
présent
article,
il
est
interdit
à
un
fonctionnaire:
a)
de
fournir
sciemment
à
quiconque
un
renseignement
confidentiel
ou
d’un
permettre
sciemment
la
prestation;
b)
de
permettre
sciemment
à
quiconque
d’avoir
accès
à
un
renseignement
confidentiel
241(10)
Renseignement
de
toute
nature
et
sous
toute
forme
concernant
un
ou
plusieurs
contribuables
et
qui,
selon
le
cas:
a)
est
obtenu
par
le
ministre
ou
en
son
nom
pour
l’application
de
la
présente
loi;
b)
est
tiré
d’un
renseignement
visé
à
l’alinéa
a)
N’est
pas
un
renseignement
confidentiel
le
renseignement
qui
ne
révèle
pas,
même
indirectement,
l’identité
du
contribuable
en
cause.
(ti)
Access
to
Information
Act
The
Minister
has
relied
on
the
following
provisions,
singly
or
in
combination,
to
justify
the
non-disclosure
of
documents
requested
by
the
applicant.
18.
The
head
of
a
government
institution
may
refuse
to
disclose
any
record
requested
under
this
Act
that
contains
(d)
information
the
disclosure
of
which
could
reasonably
be
expected
to
be
materially
injurious
to
the
financial
interests
of
the
Government
of
Canada
or
the
ability
of
the
Government
of
Canada
to
manage
the
econ-
omy
of
Canada
or
could
reasonably
be
expected
to
result
in
an
undue
benefit
to
any
person,
including,
without
restricting
the
generality
of
the
foregoing,
any
such
information
relating
to
(iii)
a
contemplated
change
in
tariff
rates,
taxes,
duties
or
any
other
revenue
source,
21.(1)
The
head
of
a
government
institution
may
refuse
to
disclose
any
record
requested
under
this
Act
that
contains
(a)
advice
or
recommendations
developed
by
or
for
a
government
institution
or
a
minister
of
the
Crown,
(b)
an
account
of
consultations
or
deliberations
involving
officers
or
employees
of
a
government
institution,
a
minister
of
the
Crown
or
the
staff
of
a
minister
of
the
Crown,
23.
The
head
of
a
government
institution
may
refuse
to
disclose
any
record
requested
under
this
Act
that
contains
information
that
is
subject
to
solicitor-client
privilege.
24.(1)
The
head
of
a
government
institution
shall
refuse
to
disclose
any
record
requested
under
this
Act
that
contains
information
the
disclosure
of
which
is
restricted
by
or
pursuant
to
any
provision
set
out
in
Schedule
II.
25.
Notwithstanding
any
other
provision
of
this
Act,
where
a
request
is
made
to
a
government
institution
for
access
to
a
record
that
the
head
of
the
institution
is
authorized
to
refuse
to
disclose
under
this
Act
by
reason
of
information
or
other
material
contained
in
the
record,
the
head
of
the
institution
shall
disclose
any
part
of
the
record
that
does
not
contain,
and
can
reasonably
be
severed
from
any
oy:
it
contains.
an
ich
information
or
material.
18.
Le
responsable
d’une
institution
fédérale
peut
refuser
la
communication
de
documents
contenant:
d)
des
renseignements
don’t
la
divulgation
risquerait
vraisemblablement
de
porter
un
préjudice
appréciable
aux
intérêts
financiers
du
gouvernement
du
Canada
ou
à
sa
capacité
de
gérer
l’économie
du
pays,
ainsi
que
ceux
don’t
la
divulgation
risquerait
vraisemblablement
de
causer
des
avantages
injustifiés
à
une
personne.
Ces
renseignements
peuvent
notamment
porter
sur:
(iii)
les
projets
de
changement
des
taux
tarifaires,
des
taxes,
impôts
ou
droits
ou
des
autres
sources
de
revenu,
21.(1)
Le
responsable
d’une
institution
fédérale
peut
refuser
la
communication
de
documents
datés
de
moins
de
vingt
ans
lors
de
la
demande
et
contenant:
a)
des
avis
ou
recommandations
élaborés
par
ou
pour
une
institution
fédérale
ou
un
ministre;
b)
des
comptes
rendus
de
consultations
ou
délibérations
où
sont
concernés
des
cadres
ou
employés
d’une
institution
fédérale,
un
ministre
ou
son
personnel;
23.
Le
responsable
d’une
institution
fédérale
peut
refuser
la
communication
de
documents
contenant
des
renseignements
protégés
par
le
secret
professionnel
qui
lie
un
avocat
à
son
client.
24.
(1)
Le
responsable
d’une
institution
fédérale
est
tenu
de
refuser
la
communication
de
documents
contenant
des
renseignements
don’t
la
communication
est
restreinte
en
vertu
d’une
disposition
figurant
à
l’annexe
II.
25.
Le
responsable
d’une
institution
fédérale,
dans
les
cas
où
il
pourrait,
vu
la
nature
des
renseignements
contenus
dans
le
document
demandé,
s’autoriser
de
la
présente
loi
pour
refuser
la
communication
du
document,
est
cependant
tenu,
nonobstant
les
autres
dispositions
de
la
présente
loi,
d’en
communiquer
les
parties
dépourvues
des
renseignements
en
cause,
à
condition
que
le
prélèvement
de
ces
parties
ne
pose
pas
de
problèmes
sérieux.
C.
The
Applicable
Legal
Principles
This
appears
to
be
the
first
case
in
which
the
Court
has
been
required
to
consider
the
scope
of
the
exemptions
from
disclosure
contained
in
paragraphs
18(d)
and
21(1)(a)
of
the
Access
to
Information
Act.
X
approach
this
task
within
the
framework
of
the
well
established
legal
principles
that
inform
the
conduct
of
section
41
reviews,
as
they
relate
to
the
facts
of
this
case.
First,
it
is
necessary
to
consider
the
standard
of
review
applicable
to
the
Minister’s
refusal
to
disclose
the
information
in
question.
Unlike
some
analogous
provincial
statutes,
the
federal
Access
to
Information
Act
does
not
give
to
the
Information
Commissioner
of
Canada
the
statutory
authority
to
decide
whether
a
particular
document
should
be
disclosed.
Instead,
it
confers
on
the
Information
Commissioner
the
power
to
investigate
refusals
to
disclose
and
to
make
recommendations
to
the
head
of
the
government
institution,
in
this
case,
the
Minister
of
Finance.
Since
the
Commissioner’s
recommendations
are
not
legally
binding
the
decision
reviewed
by
the
Federal
Court
under
section
41
is
the
Minister’s,
not
the
Information
Commissioner’s.
Heads
of
government
institutions
are
apt
to
equate
the
public
interest
with
the
reasons
for
not
disclosing
information,
and
thus
to
interpret
and
apply
the
Act
in
a
manner
that
gives
maximum
protection
from
disclosure
for
information
in
their
possession.
Accordingly,
there
is
no
room
for
the
kind
of
judicial
deference
to
the
Minister’s
interpretation
or
application
of
the
statutory
exemptions
that
courts
have
sometimes
shown
to
decisions
made
by
information
and
privacy
commissioners
operating
under
provincial
legislation
that
confers
on
them,
not
the
Minister,
the
power
to
determine
whether
information
should
be
disclosed:
see,
for
example,
John
Doe
v.
Ontario
(Information
&
Privacy
Commissioner)
(1993),
106
D.L.R.
(4th)
140
(Ont.
Div.
Ct.).
However,
while
the
Court
is
required
to
review
the
Minister’s
decisions
on
a
standard
of
correctness
it
is
certainly
appropriate
to
have
regard
to
the
report
and
recommendations
of
the
Information
Commissioner.
The
Commissioner
is
independent
of
the
Executive
and
reports
directly
to
Parliament,
and
has
acquired
an
expertise
in
the
administration
of
the
Act
as
a
result
of
the
experience
gained
in
the
investigation
of
complaints
of
refusals
to
disclose.
Second,
the
statutory
exemptions
from
the
general
duty
to
disclose
information
are
to
be
construed
narrowly
so
as
not
to
derogate
more
than
is
clearly
required
by
the
Act
from
its
overall
purpose,
which
is
to
give
legal
expression
to
the
general
principle
that
government
information
should
be
available
to
the
public:
see
subsection
2(1).
Third,
for
a
similar
reason
section
48
imposes
on
the
government
the
burden
of
establishing
that
the
refusal
to
disclose
a
document,
or
part
of
a
document,
is
legally
authorized
by
the
exemption
on
which
it
relies.
Thus,
in
respect
of
the
exemption
claimed
under
paragraph
18(d)
the
Court
will
require
clear
proof
that
the
Minister
has
reasonable
grounds
to
believe
that
there
was
a
reasonable
expectation
of
probable
harm
of
the
prescribed
kinds
if
the
documents
in
question
were
disclosed.
Fourth,
the
nature
of
the
decision
to
be
made
by
the
Court
on
review
depends
on
the
particular
exemptions
relied
upon.
Some,
such
as
that
contained
in
section
24,
are
mandatory,
so
that
the
Court
is
called
upon
to
decide
only
if
the
information
falls
within
the
scope
of
the
statutory
exemption.
If
it
does,
that
is
the
end
of
the
matter,
and
the
information
must
not
be
disclosed.
If
it
does
not,
then
the
Court
will
order
its
disclosure:
Canadian
Jewish
Congress
v.
Canada
(Minister
of
Employment
&
Immigration),
(1995),
[1996]
1
F.C.
268
(Fed.
T.D.),
[at]
280.
Other
exemptions,
however,
are
permissive
and
provide
that
the
head
of
a
government
institution
may
refuse
to
disclose
information
of
a
given
description:
paragraphs
18(d)
and
subsection
21(1)
and
section
23
are
of
this
kind.
When
reviewing
decisions
made
under
permissive
provisions
the
Court
must
decide
not
only
whether
the
information
falls
within
that
described
in
the
relevant
provision,
but
also,
if
it
does,
whether
the
head
of
the
government
institution
lawfully
exercised
the
discretion
not
to
disclose
it.
However,
when
reviewing
the
exercise
of
discretion
under
a
permissive
exemption
the
Court
is
not
to
decide
how
it
would
have
exercised
the
discretion,
but
merely
to
review
on
administrative
law
grounds
the
legality
of
the
exercise
of
that
discretion
by
the
Minister,
in
light
of
the
overall
purpose
of
the
statute
and
of
the
particular
exemption.
Accordingly,
if
the
Court
concludes
that
the
discretion
was
exercised
unlawfully,
the
normal
remedy
will
be
to
remit
the
matter
to
the
head
of
the
government
institution
for
a
redetermination
in
accordance
with
the
Court’s
reasons,
not
an
order
by
the
Court
that
the
document
be
disclosed:
Canadian
Jewish
Congress,
supra,
at
pages
280-282.
Fifth,
in
order
to
ensure
that
public
access
to
information
is
restricted
as
little
as
possible,
section
25
requires
the
head
of
the
institution
to
disclose
any
portion
of
a
record
that
does
not
contain
exempted
information
and
can
reasonably
be
severed
from
the
part
that
does.
D.
The
Exemptions
Claimed
(i)
paragraph
18(d)
This
provision
was
relied
on
by
the
Minister
to
justify
the
non-disclosure
of
several
of
the
records
covered
by
the
Council’s
request
but,
for
the
documents
still
withheld,
only
in
combination
with
subsection
21(1).
I
have
found
that
the
non-disclosure
of
the
documents
in
question
can
be
justified
under
subsection
21(1),
and
the
parts
of
them
that
should
be
disclosed
are
clearly
not
covered
by
paragraph
18(d).
Nonetheless,
I
shall
set
out
the
paragraph
18(d)
argument
made
in
this
case,
and
my
response
to
it.
The
Information
Commissioner
concurred
with
the
opinion
of
the
Minister
that
paragraph
18(d)
was
applicable,
on
the
ground
that
disclosure
would
be
materially
injurious
to
the
financial
interests
of
the
Government
of
Canada,
because
it
would
cause
a
significant
loss
of
tax
revenue.
The
Commissioner
was
also
satisfied
that
the
discretion
to
withhold
the
exempted
documents
had
been
properly
exercised.
In
his
submissions
counsel
relied
on
the
affidavit
of
Mr.
Michel
Maher,
a
tax
policy
officer
with
the
Department
of
Finance,
who
stated
that
there
had
been
a
steady
increase
in
the
revenue
lost
as
a
result
of
a
growing
number
of
claims
made
for
the
“clergy
residence”
deduction,
despite
the
virtual
disappearance
of
the
social
conditions
that
had
led
to
its
original
enactment,
namely
the
regular
use,
especially
in
rural
parishes,
of
the
minister’s
house
as
the
unofficial
church
office
or
meeting
room.
Mr.
Maher
stated
that,
if
the
documents
requested
were
disclosed,
the
amount
of
revenue
lost
as
a
result
of
claims
for
this
deduction
would
increase
further
to
up
to
$20
million
a
year.
The
argument
on
behalf
of
the
Minister
is
that
the
disputed
documents,
which
contain
legal
and
policy
analyses
of
the
deduction
prepared
by
officials
within
the
Department,
will
encourage
claims
by
individuals
who
might
not
otherwise
have
realized
that,
properly
interpreted,
the
deduction
may
apply
to
a
wider
range
of
persons
than
Revenue
Canada
has
so
far
been
prepared
to
concede.
Moreover,
on
the
basis
of
these
analyses
taxpayers
may
be
able
to
present
their
affairs
in
a
way
that
enables
them
to
claim
the
deduction
for
years
past.
I
should
make
clear
at
the
outset
that
this
argument
was
based
on
an
apprehended
increase
in
the
number
of
legitimate
claims
under
paragraph
8(1
)(c)
of
the
Income
Tax
Act,
not
on
a
fear
that
disclosure
would
facilitate
tax
evasion
by
the
making
of
false
claims
to
which
the
claimants
were
not
in
law
entitled.
I
find
it
difficult
to
accept
that
it
was
the
intention
of
Parliament
to
exempt
from
the
general
right
of
public
access
to
information
in
the
possession
of
the
government
materials
that
would
enable
individuals
to
claim
deductions
from
their
income
tax
liability
to
which
they
are
legally
entitled.
I
would
therefore
not
interpret
the
words
“injurious
to
the
financial
interest
of
the
Government
of
Canada”
to
include
revenue
loss
resulting
from
an
increase
in
the
legitimate
claims
to
a
deduction
under
the
Income
Tax
Act.
If
the
“clergy
residence”
deduction
is
not
satisfactorily
drafted
for
contemporary
conditions,
it
is
the
responsibility
of
the
Department
of
Finance
to
propose
statutory
reforms
to
deal
with
the
problem.
The
Department
cannot
attempt
to
hide
the
legal
frailty
of
its
position
behind
a
cloud
of
secrecy
that
it
was
the
general
purpose
of
the
Access
to
Information
Act
to
dispel.
Similarly,
if
disclosure
encourages
taxpayers
to
claim
the
benefit
of
a
deduction
to
which
they
are
entitled,
I
cannot
accept
that
the
resulting
benefit
to
them
will
be
“undue”
within
the
meaning
of
paragraph
18(d).
However,
the
Minister
is
on
firmer
ground
in
refusing
to
disclose
documents
that
contain
analyses
by
officials
of
various
options
for
amending
the
statute,
on
the
ground
that
the
information
in
these
documents
related
to
“a
contemplated
change
in
...
taxes”,
and
thus
exempt
under
paragraph
18(J)(iii).
Disclosure
of
information
of
this
description
may
properly
be
refused
if
it
would
cause
a
loss
of
revenue
to
the
government
or
would
unduly
benefit
particular
individuals.
(ii)
paragraphs
21(l)(a)
and
(b)
Despite
the
importance
of
governmental
openness
as
a
safeguard
against
the
abuse
of
power,
and
as
a
necessary
condition
for
democratic
accountability,
it
is
equally
clear
that
governments
must
be
allowed
a
measure
of
confidentiality
in
the
policy-making
process.
To
permit
or
to
require
the
disclosure
of
advice
given
by
officials,
either
to
other
officials
or
to
Ministers,
and
the
disclosure
of
confidential
deliberations
within
the
public
service
on
policy
options,
would
erode
government’s
ability
to
formulate
and
to
justify
its
policies.
It
would
be
an
intolerable
burden
to
force
Ministers
and
their
advisors
to
disclose
to
public
scrutiny
the
internal
evolution
of
the
policies
ultimately
adopted.
Disclosure
of
such
material
would
often
reveal
that
the
policy-
making
process
included
false
starts,
blind
alleys,
wrong
turns,
changes
of
mind,
the
solicitation
and
rejection
of
advice,
and
the
re-evaluation
of
priorities
and
the
re-weighing
of
the
relative
importance
of
the
relevant
factors
as
a
problem
is
studied
more
closely.
In
the
hands
of
journalists
or
political
opponents
this
is
combustible
material
liable
to
fuel
a
fire
that
could
quickly
destroy
governmental
credibility
and
effectiveness.
On
the
other
hand,
of
course,
democratic
principles
require
that
the
public,
and
this
often
means
the
representatives
of
sectional
interests,
are
enabled
to
participate
as
widely
as
possible
in
influencing
policy
development.
Without
a
degree
of
openness
on
the
part
of
government
about
its
thinking
on
public
policy
issues,
and
without
access
to
relevant
information
in
the
possession
of
government,
the
effectiveness
of
public
participation
will
inevitably
be
curbed.
The
Information
Commissioner’s
report
simply
states
that
some
of
the
information
withheld
in
this
case
“constitutes
advice
developed
by
departmental
officials
for
decision-making
purposes”
and
is
thus
exempt
under
paragraph
21(1)(a).
Other
information
“contains
accounts
of
consultations
and
deliberations
among
governmental
officials
in
FIN
and
Revenue
Canada
about
the
8(1
)(c)
provisions
of
the
Income
Tax
Act’,
and
is
thus
exempt
under
paragraph
21(1)(b).
Again,
the
Commissioner
adds
that
he
is
satisfied
that
the
discretion
to
withhold
information
falling
within
these
paragraphs
was
exercised
properly.
One
point
of
principle
about
the
scope
of
paragraph
21(1)
on
which
the
parties
advanced
different
views
at
the
hearing
was
whether
it
exempted
internal
documents
that
revealed
that
officials
had
identified
a
problem
with
the
clergy
residence
deduction
as
presently
defined
in
paragraph
8(1
)(c)
of
the
Income
Tax
Act.
Counsel
for
the
applicant
took
the
position
that
it
did
not.
He
submitted
that
it
was
important
for
interested
members
of
the
public
and
organizations
to
have
access
to
this
information
so
that
they
could
make
submissions
to
the
government
on
whether,
in
their
opinion,
a
problem
existed,
and
if
it
did,
how
it
should
be
solved.
Since
citizen
participation
is
more
likely
to
be
effective
if
it
comes
early
in
the
policy-making
process,
subsection
21(1)
should
not
be
given
a
broader
interpretation
than
its
wording
clearly
requires.
A
central
purpose
of
the
Access
to
Information
Act
1s,
after
all,
to
enhance
the
democratic
foundations
of
government,
and
accountability.
Counsel
for
the
Minister,
however,
took
the
view
that
it
was
generally
impossible
to
disentangle
the
identification
of
a
problem
with
the
legislation
from
recommendations
for
reform
and
advice
on
policy
options
for
dealing
with
it.
Even
when
not
stated
expressly,
advice
and
recommendations
might
be
implicit
in
the
mere
identification
of
something
as
a
problem.
Moreover,
an
internal
document
written
by
one
official,
and
communicated
to
another,
that
identifies
a
problem
with
the
legislation
would
fall
within
paragraph
21(1)(b)
as
“an
account
of
consultations
or
deliberations
involving
officers
or
employees
of
a
government
institution”.
It
is
difficult
to
avoid
the
conclusion
that
the
combined
effect
of
paragraphs
21(1)0)
and
(b)
is
to
exempt
from
disclosure
under
the
Act
a
very
wide
range
of
documents
generated
in
the
internal
policy
processes
of
a
government
institution.
Documents
containing
information
of
a
factual
or
Statistical
nature,
or
providing
an
explanation
of
the
background
to
a
current
policy
or
legislative
provision,
may
not
fall
within
these
broad
terms.
However,
most
internal
documents
that
analyse
a
problem,
starting
with
an
initial
identification
of
a
problem,
then
canvassing
a
range
of
solutions,
and
ending
with
specific
recommendations
for
change,
are
likely
to
be
caught
within
paragraph
(a)
or
(b)
of
subsection
21(1).
The
Act
thus
leaves
to
the
heads
of
government
institutions,
subject
to
review
and
recommendations
by
the
Information
Commissioner,
the
discretion
to
decide
which
of
the
broad
range
of
documents
that
fall
within
these
paragraphs
can
be
disclosed
without
damage
to
the
effectiveness
of
government.
There
is
very
little
role
for
the
Court
in
overseeing
the
exercise
of
this
discretion.
(iii)
subsection
24(1)
The
third
statutory
exemption
relied
on
by
the
Minister
in
this
case
prohibits
the
disclosure
of
information
in
contravention
of
any
of
the
statutory
provisions
included
in
Schedule
II
of
the
Access
to
Information
Act.
Schedule
II
includes
section
241
of
the
Income
Tax
Act.
Subsection
241(1)
forbids
the
knowing
disclosure
by
officials
of
any
“taxpayer
information”.
This
term
is
defined
in
subsection
241(10)
as
information
relating
to
taxpayers
that
has
been
obtained
by
the
Minister
pursuant
to
the
Act
but,
significantly
for
present
purposes,
does
not
include
information
that
“does
not
directly
or
indirectly
reveal
the
identity
of
the
taxpayer
to
whom
it
relates”.
The
Council’s
access
to
information
request
included
information
about
the
organizations,
members
of
which
had
claimed
the
clergy
residence
deduction.
The
Minister
was
willing
to
provide
information
about
the
incidence
of
claims,
but
not
the
names
of
the
organizations
that
employed
taxpayers
who
had
claimed
the
deduction
or,
in
some
cases,
the
position
occupied
by
the
claimants,
on
the
ground
that
many
of
these
organizations
are
small,
or
local,
and
that
disclosure
might
well
indirectly
reveal
the
identity
of
the
taxpayers
who
had
claimed
the
deduction.
The
Information
Commissioner
reported
that
subsection
24(1)
applied:
The
remaining
exempted
records
and
portions
of
documents
contain
taxpayer
specific
information
regarding
a
company
other
than
your
client.
As
a
matter
of
principle,
it
seems
clear
to
me
that
disclosing
the
name
of
the
employer
of
a
person
who
had
claimed
the
deduction
is
capable
of
revealing
the
identity
of
the
taxpayer
concerned.
Whether
this
is
in
fact
the
case
must
depend
on
the
particular
circumstances,
including
the
size
of
the
organization,
the
number
of
its
employees
and
the
extent
to
which
it
is
locally
based.
I
would
only
add
that
maintaining
the
strict
confidentiality
of
taxpayer
information
is
important,
not
only
as
a
matter
of
fairness
to
individuals
who
are
required
by
law
to
supply
information
to
the
Minister,
but
also
for
the
effect
of
disclosure
on
the
efficient
administration
of
the
Income
Tax
Act.
If
taxpayers
become
concerned
about
Revenue
Canada’s
ability
to
keep
confidential
information
about
their
financial
affairs,
they
are
likely
to
be
less
forthcoming
in
providing
information
that
Revenue
Canada
requires
for
the
expeditious
and
accurate
assessment
of
tax
liability.
(iv)
section
23
The
fourth
and
final
exemption
relied
on
by
the
Minister
relates
to
solicitor-client
privilege.
Section
23
authorizes
the
head
of
a
government
institution
to
withhold
from
disclosure
information
that
is
the
subject
of
solicitorclient
privilege.
The
parties
agree
that
the
scope
of
this
exemption
is
governed
by
the
common
law
of
legal
privilege.
Counsel
for
the
Minister
requested
only
that,
when
examining
the
documents
for
which
this
privilege
is
claimed,
I
satisfy
myself
that
it
does
indeed
qualify,
in
view
of
earlier
claims
for
solicitor-client
privilege
that
the
Minister
had
made,
but
subsequently
retracted
as
unjustified.
The
Information
Commissioner
upheld
the
non-disclosure
of
the
documents
for
which
an
exemption
under
section
23
was
claimed
on
the
ground
that
The
information
is
of
a
confidential
nature
and
the
communications
were
developed
as
the
result
of
a
request
for
legal
advice.
He
was
also
satisfied
that
they
had
been
withheld
in
the
proper
exercise
of
discretion.
D.
The
Documents
Examined
(i)
paragraph
18(d)
This
paragraph
was
not
relied
on
alone
to
justify
the
non-disclosure
of
any
of
the
documents
that
the
Minister
has
decided
not
to
produce.
Since
I
have
found
that
the
non-disclosure
of
these
documents,
or
parts
of
them,
is
justified
under
subsection
21(1),
it
is
not
necessary
for
me
to
decide
whether
the
claim
under
paragraph
18(d)
was
also
properly
made.
(ii)
paragraphs
21(1)(a)
and
(b)
The
Minister
relies
on
one
or
both
of
these
paragraphs
with
respect
to
the
material
on
pages
1-77
and
149-150
of
the
bundle
of
documents
that
I
examined.
On
examining
them
I
am
satisfied
that,
with
three
exceptions,
the
material
that
has
been
withheld
falls
within
the
exemptions
described
in
these
paragraphs.
The
exceptions
comprise
the
following
material
which
seems
to
me
to
be
clearly
factual
in
nature,
and
thus
not
to
fall
within
paragraphs
21(1)(a)
or
(b).
a)
page
24,
the
first
full
paragraph:
this
simply
describes
a
well
known
social
change
that
has
occurred
in
Canada
that
is
of
obvious
significance
to
an
understanding
of
paragraph
8(1)(c).
Paragraph
18(d)
is
clearly
not
relevant
to
this
material.
b)
page
69,
with
the
exception
of
the
last
paragraph
and
the
last
sentence
of
the
penultimate
paragraph:
this
page
describes
the
results
of
certain
tax
appeals,
and
contains
a
statement
of
the
intent
attributed
to
Parliament
in
enacting
paragraph
8(1)(c).
C)
page
74,
last
paragraph:
this
describes
the
role
of
the
Council
and
the
strategy
that
it
has
pursued
on
this
issue.
To
the
extent
that
I
have
indicated,
therefore,
this
material
was
not
within
the
categories
described
in
these
paragraphs
and
the
decision
not
to
disclose
it
was
wrong.
Finally,
in
light
of
the
affidavit
of
Mr.
Maher,
the
report
of
the
Information
Commissioner
and
of
my
examination
of
the
documents,
I
have
no
reason
for
believing
that
the
discretion
to
withhold
the
information
that
falls
within
these
paragraphs
has
been
exercised
unlawfully.
(iii)
section
24
Pages
82-97,
for
which
this
exception
is
invoked,
contain
two
categories
of
information.
The
Minister
contends
that
both
must
be
withheld
as
“taxpayer
information”
as
defined
by
subsection
241(10)
of
the
Income
Tax
Act.
The
first
category
comprises
a
summary
of
questionable
claims
made
in
one
year
for
the
clergy
residence
deduction,
and
includes
the
number
by
which
the
taxpayer
claimants
are
identified,
claimants’
salary
levels,
and
the
names
of
the
organizations
that
employed
them.
In
some
cases,
the
capacity
in
which
a
claimant
is
employed
is
also
included
in
the
information
that
has
been
withheld.
The
second
category
is
a
list
of
the
names
of
organizations
that
have
been
accepted
as
religious
orders
for
the
purpose
of
paragraph
8(1)(c)
of
the
Income
Tax
Act,
and
a
description
of
their
activities.
As
to
the
first
category,
I
have
been
assisted
by
information
contained
in
the
documents
about
the
number
of
employees
of
some
of
the
organizations
for
which
claimants
worked.
I
am
satisfied
that
most
are
of
such
a
size
or
geographical
definition
that
there
is
a
real
risk
that
the
identities
of
taxpayer
claimants
might
be
inferred
from
the
disclosure
of
the
names
of
their
employers
and
of
the
position
in
which
they
were
employed.
Numerical
information
was
not
available
with
respect
to
all
of
the
organizations
that
employed
claimants
in
the
year
in
question.
However,
on
the
basis
of
the
numerical
information
that
I
had
about
others,
and
inferences
that
I
have
drawn
from
the
names
of
some
of
the
organizations,
I
am
prepared
to
assume
that
there
was
an
unacceptable
degree
of
risk
that
disclosure
of
the
information
withheld
would
indirectly
reveal
the
identity
of
the
taxpayer
claimants.
As
for
the
few
large
organizations
named,
it
is
clear
that
they
are
almost
certainly
corporations
or
registered
charities
and
thus
are
taxpayers
within
the
meaning
of
the
Income
Tax
Act.
To
disclose
the
information
obtained
by
the
Minister
about
them
would
inevitably
disclose
their
identity.
Hence,
I
find
that
the
Minister
was
correct
in
law
not
to
disclose
any
of
this
information.
The
second
category
of
information
found
on
pages
82-97
names
the
employers
of
claimants
that
Revenue
Canada
has
accepted
are
religious
orders
for
the
purposes
of
paragraph
8(1)(c)
of
the
Income
Tax
Act.
Similar
information
is
contained
on
pages
99-100.
Again,
since
the
disclosure
of
the
names
of
the
employers
might
indirectly
reveal
the
identity
of
the
claimants,
I
am
satisfied
that
this
information
was
properly
withheld.
Pages
120-147
contain
documents
that
identify
and
describe
organizations
that
have
been
accepted
as
religious
orders,
employees
of
which
have
claimed
deductions.
The
nature
of
some
of
these
claims
is
described
at
length.
The
information
withheld
seems
to
me
to
fall
within
section
24
as
“taxpayer
information”
because
it
could
be
used
to
identify
those
who
had
claimed
this
deduction.
(iv)
section
23
The
document
on
pages
101-118
deals
with
the
scope
of
paragraph
8(1)(c)
of
the
Income
Tax
Act.
It
is
a
legal
opinion
provided,
on
request,
by
the
Department
of
Justice,
and
hence
is
within
the
exemption
established
by
section
23.
Even
though
the
opinion
was
given
15
years
ago,
it
deals
with
issues
that
are
of
continuing
vitality
and
hence
there
was
no
obvious
error
in
the
decision
not
to
disclose
it
in
the
exercise
of
discretion.
E.
Conclusion
With
the
exception
of
the
material
on
pages
24,
69
and
74
of
the
bundle
of
documents
that
I
have
decided
was
not
within
the
exemption
claimed
pursuant
to
paragraphs
21
(
1
)(zz)
or
(b),
in
my
opinion
the
Minister
was
authorized
or
required
to
withhold
the
documents
that
have
not
been
disclosed
to
the
applicant.
For
these
reasons,
the
application
for
judicial
review
is
granted
with
respect
to
the
decision
not
to
disclose
the
above
material.
The
Minister
is
ordered
to
disclose
the
withheld
material
that
does
not
fall
within
the
scope
of
any
of
the
statutory
exceptions.
Otherwise,
the
application
is
dismissed.
Counsel
have
indicated
that
they
wish
to
make
submissions
on
the
question
of
costs.
These
should
be
in
writing
and
should
reach
the
Court
within
14
days
from
the
date
of
these
reasons.
Application
allowed
in
part.
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