Collier, J.:—This is a motion by the plaintiff to compel the defendant to produce certain documents for which privilege is claimed.
The plaintiff is an extra-provincial company, registered under British Columbia law. It became the mortgagee of certain property in the Victoria, B.C. area. The mortgagor was a company known as I.E.C. Another company, Wigmar Construction Limited, built, under contract with I.E.C., a commercial office building on the land.
The plaintiff alleges that Revenue Canada caused sheriff's officers wrongfully to seize and remove various items, including fixtures, from the build- ings; it is further alleged extensive damage was done to the building in the course of the seizure; the seizure of a generator, it is said, resulted in flooding of the building. Damages are claimed.
The seizure is alleged to have been made pursuant to a certificate issued against I.E.C. by Revenue Canada.
The documents in question are a number of docket notations made by four Collection Investigations Officers of the Ministry of National Revenue.
The privilege claimed is asserted under subsection 241(1) of the Income Tax Act. Subsection 241(2) is of some assistance. I set out both subsections:
241. (1) Except as authorized by this section no official or authorized person shall
(a) knowingly communicate or knowingly allow to be communicated to any person any information obtained by or on behalf of the Minister for the purposes of this Act, or
(b) knowingly allow any person to inspect or to have access to any book record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act.
(2) Notwithstanding any other Act or law, no official or authorized person shall be required, in connection with any legal proceedings,
(a) to give evidence relating to any information obtained by or on behalf of the Minister for the purposes of this Act, or
(b) to produce any book record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act.
Counsel for the defendant supplied me with copies of the documents in issue, and agreed to my looking at them in order to decide the question of privilege.
I shall not describe, in any detail, the documents I have scrutinized. I shall merely summarize generally the content as set out in the defendant's supplementary list of documents (the portion where privilege is claimed). See Exhibit "C" to the affidavit of W. Gary Wharton or Exhibit "A" to the affidavit of Gary Rob.
It is obvious a good deal of the materials in the dockets have to do with Revenue Canada's claim against I.E.C. and the seizure by sheriffs on the instructions of Revenue Canada. Those matters are, of course, the genesis of the present lawsuit.
The defendant contends subsection 241(1) applies. These documents, it is said, were records, writings, or other documents "obtained by or on behalf of the Minister for the purposes of this Act"; they are not, therefore, subject to disclosure to others, including the plaintiff.
A number of decisions were cited on behalf of the defendant:
Glover v. Glover et al (No. 1) (1980), 26 O.R. (2d) 477 (Lerner, J.); reversed, 29 O.R. (2d) 392; [1980] C.T.C. 531 (Ont. C.A.); affirmed under citation Glover v. M.N.R., [1981] 2 S.C.R. 561; [1982] C.T.C. 29 (S.C.C.); McPherson v. Vang [1967] C.T.C. 39; 67 D.T.C. 5041 (B.C.S.C.); R. v. Snider, [1954] S.C.R. 479; [1954] C.T.C. 255 (S.C.C.); Shaw v. Maroun Chater Construction Ltd. (1975), 15 N.S.R. (2d) 563 (N.S.C.C.)
The above cases are, in my view, distinguishable on their facts. In the Glover case, a plaintiff wife obtained a divorce decree and custody of the children. The husband had earlier absconded with the children. The trial judge, as part of the decree, ordered Revenue Canada to provide the Ontario Supreme Court with particulars of the addresses of the respondent husband. The Ontario Court of Appeal set aside that part of the order, applying the prohibition provisions of section 241. That decision was affirmed by the Supreme Court of Canada.
In the Glover case, the federal Crown was, of course, not a party to the litigation. The information sought was, in effect, being requested by a third party (the wife). The decision is, to my mind, accurately set out in the [O.R.] headnote to the Ontario Court of Appeal reasons (pp. 392-393):
A Court does not have the power, in order to assist in the implementation of one of its orders, to require Revenue Canada to reveal confidential information provided pursuant to the Income Tax Act, 1970-71-72 (Can.), c.63. Accordingly, although the taxpayer has absconded with the children after a custody order had been made in favour of his wife, and the wife has obtained a decree nisi granting her custody of the children, it is not within the power of a Judge to make an order requiring Revenue Canada to provide the Court with particulars of the address of the respondent. Section 241 of the Income Tax Act is a comprehensive code designed to protect confidentiality of all information given to the Minister for the purposes of the Act, and precludes disclosure of information except as expressly authorized by the statute. The fact that the petitioner had been given an order for custody gave her no right under the statute to secure information from her husband’s income tax return as to his whereabouts, and the Court has no inherent jurisdiction to require such information to be divulged in the face of an explicit statutory prohibition.
Similarly, in the McPherson and Shaw cases, the information sought from Revenue Canada officers was requested by the plaintiffs in the course of litigation between citizen and citizen. The litigation had nothing to do with a claim against Revenue Canada. The plaintiffs were in the position of "third parties" and, in my view, their requests came squarely within the prohibition section.
In this present litigation, the plaintiff is not seeking to get confidential information and material gathered by the Minister in the course of general income tax information, procedures, investigations and matters of that kind. The documents, for which the so-called privilege is claimed, relate to the actions taken by and on behalf of Revenue Canada which give rise to the present litigation against, for practical purposes, Revenue Canada itself.
These dockets were not, and are not, as I see it, “given to the Minister for the purposes of the Income Tax Act". They came into existence as a result of collection proceedings started against I.E.C. (the mortgagor) which allegedly caused the damage asserted by the plaintiff mortgagee. In that sense, there is no breach of confidentiality, or of the statute.
The documents are therefore producible to the plaintiff.
I reserved judgment on this motion an unconscionably long time ago. I made the formal order some time ago, but unfortunately delayed giving these reasons.
Motion granted.