Docket: T-1154-13
Citation:
2014 FC 880
Ottawa, Ontario, September 16, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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SANDRA VIOLET SUMMERS
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Applicant
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And
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MINISTER OF NATIONAL REVENUE
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application under section 41 of the Access
to Information Act, RSC 1985, c A-1 [the Act].
[2]
The applicant asks the Court to allow the
application for judicial review and order the Canada Revenue Agency (CRA) to
disclose all audit documentation which supports the CRA’s decision to disallow
the business losses the applicant claimed in her 2007 tax return. The applicant
further requests all documents related to the garnishment of her wages due to
the 2007 reassessment. In the alternative, if the documents were destroyed or
not found, the applicant wishes to know what happened to them.
[3]
The respondent asks the Court to dismiss this
application.
I.
Background
[4]
In 2008, the CRA reassessed the applicant’s 2007
tax return because she was involved in what it determined to be a tax avoidance
scheme (the Synergy scheme).
[5]
In the Synergy scheme, taxpayers would purchase
units in a corporation. The corporation would then provide consulting services
to small businesses in exchange for 5% of the business profits and 95% of the
business losses. These losses would be allocated to unit holders. The applicant
was one of these unit holders and incurred substantial business losses as part
of the Synergy scheme which she deducted from her 2007 tax return.
[6]
Because of the disallowance of the business
losses from the alleged scheme, the applicant had a significant amount of taxes
owing. Her file was forwarded to the CRA’s collections unit, which took steps
to recover the unpaid tax by collecting it from her wages. The respondent
states the deduction of the debt owed from the applicant’s wages was a statutory
set-off, not a garnishment and as such, a notice of objection would not stop
the wage deduction. However, it should be noted that the CRA in its correspondence
with the applicant referred repeatedly to garnishment, not statutory set-off.
Nothing turns on this point, but I will refer to the deduction as the
garnishment action.
[7]
On August 6, 2008, the applicant filed a notice
of objection which was meant to cease the garnishment action. By CRA error,
garnishment continued. There is documentation relating to a refund and it
appears the applicant paid the full amount owing.
[8]
On August 29, 2012, the applicant submitted an
access to information request by registered mail to the CRA. She requested all
documents relating to “Re: CRA Notice of Assessment
and/or Reassessment to me for the year 2007, and my Notice of Objection
thereto, dated the 6 day of August, 2008.”
[9]
On August 30, 2012, she faxed this request which
the CRA received. This application was supposed to come with a $5 payment. The
CRA says it did not receive this payment. However, the applicant claims she
sent a cheque and the CRA lost it. Though the CRA searched for the $5 cheque,
it could not be found.
[10]
On September 28, 2013, the CRA received the
request again along with a cheque for the $5 fee. The CRA began searching for
the records.
II.
The First Disclosure
[11]
On November 20, 2012, the CRA sent the applicant
a package of documents, consisting of 88 pages (the first disclosure).
[12]
The first disclosure was assembled by two CRA
ATIP analysts, Abagail Bauer and Mary Read. The first analyst in charge of the
file, Ms. Bauer, contacted the Burnaby-Fraser Tax Services Office, which is the
local office for the applicant’s records. She also contacted the Thunder Bay office, where personal tax returns of many of the participants in the Synergy
scheme were stored. In the course of the investigation, she also contacted the Shawinigan office, but was informed that office did not have any of the applicant’s
records.
[13]
On November 2, 2012, Ms. Read was assigned. Ms.
Read was told no audit had been performed on the applicant’s 2007 tax year.
This information came from the Vancouver Island Tax Services Office. She made
four redactions to remove a third party’s social insurance number and sent the
first batch of documents to the applicant.
III.
Second Request for Documents and the Second Disclosure
[14]
On December 11, 2012, the applicant wrote to the
CRA requesting further information, expecting the CRA to have included all
information regarding the garnishment action taken against her, as well as to
disclose information on the audit conducted on her file.
[15]
After receipt of this letter, Ms. Read
discovered an audit had occurred and that the Vancouver Island Tax Services
Office erred in not providing documents related to the audit. In early December,
Ms. Read began investigation but disclosure did not occur until December 31,
2012.
[16]
In mid-December, the applicant complained to the
Office of the Information Commissioner. On December 18, 2012, the applicant
stated the CRA had failed to provide all requested records and objected to the
use of subsection 24(1) to redact the documents.
[17]
On December 20, 2012, Ms. Read received 13 pages
relating to the audit of the applicant’s 2007 tax year. Ms. Read made four
redactions to remove business numbers and CRA file numbers of third parties.
[18]
On December 24, 2012, Ms. Read was informed of
the complaint to the Commissioner.
[19]
On December 31, 2012, the additional documents
were sent to the applicant, roughly four months from the time of the first
access to information request.
IV.
Third Request for Documents
[20]
On January 17, 2013, the applicant made a third
request for further documents. An investigator from the Office of the Information Commissioner (OIC), Martin Leroux, contacted Ms. Read. He explained that the
applicant’s first request would include information related to the garnishment
of her wages and though the CRA disagreed, they should disclose the
information.
[21]
On March 14, 2013, Ms. Read received a document
through the investigator from the applicant, a statutory set-off notice, dated
October 23, 2008. This document had not been disclosed by the CRA in either the
first or the second batches of disclosure, but the applicant had a copy in her
possession.
[22]
Ms. Read took a number of steps to obtain
further documents. The further investigation turned up archived collections of
computer diary entries, two letters concerning notices of objection and one
concerning the garnishment action. Ms. Read further requested a statement of
account.
[23]
During the process, Ms. Read contacted the CRA’s
Taxpayer Services and Debt Management Branch. In the attempt to obtain
collections diary entries, she learned that some of the archived records relating
to the applicant were destroyed due to the records being older than four years
old. She informed the OIC investigator who wrote this in his report to the
applicant.
[24]
On May 30, 2013, the OIC determined the
applicant’s complaint was well-founded, but was resolved.
V.
Application for Judicial Review and Fourth
Disclosure
[25]
On June 26 2013, the applicant applied for
judicial review.
[26]
After being served with the judicial review, the
CRA began to search for additional documentation. It discovered it had not destroyed
any records, contrary to what was previously told to the applicant.
[27]
The newly discovered documents included 36 pages
of records relating to the 2007 tax year - documents which had been sitting
untracked at the Surrey Tax Centre. Further documents included three records
relating to the 2007 tax year from the Vancouver Island office and two
documents related to the GST and B.C. Climate Action credits, unrelated to the
Synergy Scheme.
VI.
Decision
[28]
The CRA has taken the position throughout that
in order to disclose any taxpayer information related to the corporate parties
in the Synergy scheme, the applicant must provide them with a cross-consent and
other documentation specifically allowing her access to the information.
[29]
The CRA, prior to the judicial review being
launched, had not disclosed all information which existed. It only did so after
the launch of the judicial review.
VII.
Issues
[30]
The respondent phrases the issues as:
1.
Is the Respondent refusing the Applicant access
to records requested in her request, and if so, is that refusal authorized
under the Act? In particular:
(a)
Has the Respondent released to the Applicant all
of the records to which she is entitled under the Act in respect of her
request? and;
(b)
Were the released records properly redacted,
pursuant to the exemption against disclosure set out in subsection 24(1) of the
Act?
2.
Did the Respondent breach the principles of
fundamental justice or procedural fairness?
[31]
The applicant states the issues are:
1.
The Respondent breached natural justice and
procedural fairness by failing to disclose documents.
2.
The CRA had no right to redact documents under
susbsection 24(1) of the Act or non-release documents relating to the Synergy
corporate persons under section 241 of the Income Tax Act, as they are
agents for the Applicant.
[32]
I would restate the issues as:
A.
Did the CRA fail to disclose all of the
applicant’s information?
B.
Can the CRA disclose taxpayer information on the
Synergy corporate persons to the applicant?
C.
Was there a breach of procedural fairness or
fundamental justice and what is the appropriate remedy if there was such a
breach?
D.
Is the applicant entitled to costs in any event,
due to the CRA’s misconduct?
VIII.
Applicant’s Submissions
[33]
The applicant submits that the CRA had no right
to redact her information and it should have disclosed evidence related to the
Synergy scheme, as the corporate persons were her agents.
[34]
The applicant wishes the CRA to disclose
additional information relating to her 2007 reassessment, audit and garnishment
and would like the CRA to confirm whether the CRA destroyed her collection tax
records, and if so, why.
[35]
The applicant alleges there is a breach of
procedural fairness or fundamental justice, as the respondent has consistently
delayed disclosure of information, withheld information, destroyed information
and mislead the applicant as to what information was available.
[36]
The applicant makes no submissions with respect
to entitlement to costs due to the CRA’s misconduct.
IX.
Respondent’s Submissions
[37]
The respondent states that since the application
for judicial review was filed, it has done a more thorough search and has now
disclosed all previously undisclosed documents to the applicant. It argues that
because of this, the Federal Court lacks jurisdiction over this matter.
[38]
The respondent states subsection 24(1) of the
Act prevents the disclosure of any information listed in Schedule II of the
Act. This includes section 241 of the Income Tax Act, RSC 1985, c 1 (5th
Supp), the restriction on disclosure of any taxpayer information other than to
the taxpayer, without consent. The respondent states the OIC explained this
position to the applicant.
[39]
The redacted information includes business
numbers and social insurance numbers of the Synergy corporate persons. Further,
there appears to be an undisclosed audit report conducted on the Synergy
corporate persons.
[40]
The respondent states it has not received
consent from the Synergy corporate persons to disclose this information, and as
such, it was properly redacted.
[41]
In the alternative, the disclosure does not fall
within an exception under section 241 of the Income Tax Act. The
respondent cannot release the audit of the Synergy corporate persons to the
applicant.
[42]
The respondent states the applicant has not
demonstrated a breach of procedural fairness. Further, the principles of
fundamental justice only arise under section 7 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11, which is not at
issue in this proceeding.
[43]
The respondent makes no submissions on the
applicant’s request and entitlement to costs.
X.
Analysis and Decision
A.
Issue 1: Did the CRA fail to disclose all of the
applicant’s information?
[44]
It appears that as a result of the applicant’s
judicial review, the respondent has disclosed all additional information
requested by the applicant, but for information it cannot disclose under
subsection 24(1) of the Act.
[45]
However, over the course of the investigation,
the respondent failed to disclose information, stated the applicant’s information
had been destroyed, misplaced information and created an environment lacking in
trust between the respondent and the applicant.
[46]
The respondent further argues that absent a
genuine or continuing refusal or a deemed refusal to disclose, the Federal
Court is without jurisdiction to make an order under section 49 of the Act (see
X v Canada (Minister of National Defence) (1990), [1991] 1 FC
670, 41 FTR 73 [X v Canada (Minister of National Defence)] ; Blank v
Canada (Minister of Justice), 2009 FC 1221 at paragraph 9, 373 FTR 1 [Blank
FC], aff’d 2010 FCA 183, 409 NR 152; Rubin v Canada (Minister of Foreign
Affairs and International Trade), 2001 FCT 440 at paragraph 11, 204 FTR 313
[Rubin]; Public Service Alliance of Canada v Canada (Attorney
General), 2011 FC 649 at paragraphs 21 to 23, 391 FTR 28; Statham v
Canadian Broadcasting Corporation, 2010 FCA 315 at paragraph 30, [2012] 2
FCR 421 [Statham]; Canada (Information Commissioner) v Canada
(Minister of External Affairs) (1988), [1989] 1 FC 3 at 13 and 14, 18 FTR
278 (TD)).
[47]
The respondent also states that the above cases
suggest the Court should not examine the reasonability of the conduct of the
internal affairs of a government department.
[48]
The respondent is incorrect that the Court has
lost jurisdiction. In Statham, the Federal Court of Appeal determined at
paragraph 30 that where information had been released only due to a judicial
review being launched, the Federal Court retains jurisdiction to hear
additional matters, such as costs:
Further, on the facts before the Judge I am
satisfied that he committed no reviewable error in the exercise of that
discretion. Mr. Statham had conceded before the Prothonotary that if every
request for access was responded to the application would become moot and would
be withdrawn. Given that Mr. Statham’s complaint to the Commissioner only
concerned the CBC’s deemed refusal of access, and given the clarifications Mr.
Statham gave to the Prothonotary, referred to in the quotation at paragraph 11
above, Mr. Statham’s concession was correct in law. Once all of the access
requests were responded to, the rights of the parties in relation to those
responses could not be affected by any decision in the pending application for
judicial review. With respect to the Judge’s reference to the Court lacking
“jurisdiction to entertain the application”, there was no issue of jurisdiction
in the sense the Court was forbidden from speaking on the issues before it. After
the access requests were responded to the Court could still consider issues
such as costs.
[Emphasis added]
[49]
In any event, there are two issues of
disclosure: the applicant’s personal information relating to her 2007
reassessment and information about the corporate taxpayers in the Synergy
scheme.
[50]
The applicant’s personal information has been
disclosed due to the launching of this application for judicial review.
However, issues remain relating to the redaction of that information and the
non-disclosure of information relating to the Synergy corporate persons are
still live issues in this case.
B.
Issue 2: Can the CRA disclose taxpayer
information on the Synergy corporate persons to the applicant?
[51]
The respondent states that it cannot produce
information on the Synergy corporate taxpayers. Further, it argues it properly
redacted the documents sent to the applicant. The applicant states the
corporate persons were its agents, and as such, it has deemed consent to see
their tax returns; and in any event, needs the information to properly defend
herself in Tax Court.
XI.
The Law
[52]
The standard of review of a section 41 Access
to Information Act request is correctness, with regard to the
recommendations of the Office of the Information Commissioner (see Canadian
Council of Christian Charities v Canada (Minister of Finance), [1999] 4 FC
245 at 255 and 256, 168 FTR 49 (TD) [Canadian Council]; Blank FC
at paragraphs 26 to 31 and 41).
[53]
The respondent has the burden of proving an
exemption applies.
[54]
The exemption under subsection 24(1) of the Access
to Information Act is mandatory. Subsection 241(1) of the Income Tax Act
prohibits disclosure of taxpayer information without consent, or unless the
information falls within an exception.
[55]
In Canadian Council at paragraph 46, the
Federal Court has noted that it is important to maintain the strict
confidentiality of taxpayer information:
… 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.
[56]
The exceptions in section 241 of the Income
Tax Act at issue in this case are where the taxpayer information is
reasonably necessary for the purposes of determining any tax, interest penalty
or other amount payable by the requesting party (see paragraph 241(4)(b)); or
where it is reasonably necessary for the purposes of the administration and
enforcement of the Income Tax Act (see paragraph 241(4)(a)).
[57]
Where a government institution fails to give
access to a record within the time limits set in the Access to Information Act, the institution is deemed to have refused access.
[58]
On judicial review, if the court finds the
institution is not authorized to refuse to disclose a record, the court shall
order the head of the institution to disclose the record, subject to
conditions, or make such other order as appropriate (see Access to Information Act, sections 41 and 49).
[59]
The respondent submits that the applicant has
provided no more than assertions that the corporate taxpayer information is
necessary to create a Tax Court defence. In any event, if the applicant goes to
Tax Court, the respondent says that it will be able to obtain such disclosure
through the Tax Court of Canada Rules.
[60]
Further, the respondent submits the applicant
has not provided any information to conclude the release of the audit records
is necessary for the purposes of the administration and enforcement of the Income
Tax Act.
[61]
The applicant argues that as the Synergy
corporate persons were her agents, she should have access to their tax returns.
This argument is unsupported by law. Her allegation that she requires the
Synergy corporate persons audit information in order to defend or appeal her
tax assessment to Tax Court is more compelling, but she has provided no
information on why this is necessary.
[62]
The respondent cites Scott Slipp Nissan Ltd v
Canada (Attorney General), 2005 FC 1477 at paragraphs 52 and 53, 283 FTR 62
[Scott Slipp], to demonstrate that the applicant has not demonstrated
why the release of records would be necessary:
52 The Applicant says that the release
of the confidential information to the Applicant is clearly necessary for it to
properly deal with its Notice of Objection and the underlying assessment. The
Minister never challenged the necessity of that disclosure. The purpose of the
disclosure is to allow for the proper administration of the Act, which includes
the Notice of Objection process. The disclosure is solely for that purpose. As
such, it falls squarely within paragraph 295(5)(a) of the Act.
53 The disclosure is also necessary for
the determination of the liability or obligation of the taxpayer, as
contemplated by paragraph 295(5)(b). Since the litigation process exemption (s.
295(3)) covers the interests of the Minister in determining liability or
obligations, as found in Slattery, paragraph 295(5)(b) must include the
administrative processes and is focused on disclosure for the use of the
taxpayer. Other provisions cover disclosure for governmental purposes. The
disclosure requested is to permit the Applicant to better know and potentially
reduce or eliminate his alleged tax liability. Disclosure in this case would
meet the purpose of and be consistent with the words in paragraph 295(5)(b).
[63]
Though uncited, the preceding paragraphs in Scott
Slipp state:
49 In my view, the Notice of Objection
stage of the appeal process accords a taxpayer the important right to know the
true basis of an assessment, to consider its position, to make meaningful
responses to departmental officials. The goal of the process includes assurance
that the assessment process is fair, to resolve tax issues without resorting to
litigation and to narrowing any issues to be litigated. To deny a taxpayer
as meaningful disclosure as the circumstances allow does not serve the
interests of the administration and enforcement of the Act.
50 The right to proceed through the
Notice of Objection stage cannot be denuded of value by a blanket claim of
confidentiality. If that process is to be meaningful, it must equip the
disputing taxpayer with sufficient information, particularly when CRA relies on
sources outside the control of the taxpayer. It is not a sufficient answer
to a request for documents that all will be disclosed when the taxpayer
proceeds to court.
[Emphasis added]
[64]
I am unclear as to how the above paragraphs
assist the respondent. It may be arguing that the applicant did not show the
information was necessary for a defence or that the information falls into one
of the exceptions to section 241 of the Income Tax Act. The applicant
states she wishes the audit report of the Synergy corporate persons provided to
her such that she can create a Tax Court case for the notice of objection
process. However, it is unclear as to whether or not the applicant continues to
have a valid notice of objection in place or why and how the Synergy corporate
person tax information would assist the applicant.
[65]
The respondent states the audit of the Synergy
corporate taxpayers is not necessary, as the applicant’s tax reassessment was
based on the business loss claimed from the scheme. The personal audit of her
focused on whether or not the activities with Synergy were “business”
activities resulting in “income from a source” and provides enough information
for the applicant to pursue her notice of objection. It provides an analysis by
the CRA of the scheme as a “sham”, as well as an unregistered tax shelter.
[66]
I agree with the respondent. To allow the
applicant to access the Synergy corporate taxpayer records on the basis of an
agency agreement executed with the Synergy corporate persons is the same as
allowing a home buyer to access a realtor’s tax records. They are still the
personal tax records of the corporate persons and as such, are protected by
section 241 of the Income Tax Act unless consent is granted. Further,
the audit report of the applicant is quite clear as to why her business losses
were disallowed.
A.
Issue 3: Was there a breach of procedural
fairness or fundamental justice and what is the appropriate remedy if there was
such a breach?
[67]
The respondent states the applicant has not
demonstrated a breach of procedural fairness. Further, the principles of
fundamental justice only arise under section 7 of the Canadian Charter of
Rights and Freedoms, which is not at issue in these proceedings. The
applicant raises just the issue in her memorandum of fact and law. I agree with
the respondent that this is not an issue of fundamental justice.
[68]
In this case, even if a duty of fairness arises,
it has been discharged. The documents which can be disclosed have been
disclosed. The OIC and the Federal Court’s supervisory jurisdiction have
remedied any breach. There are no damages awarded on judicial review.
[69]
Further, I would cite the decision of the
Federal Court in X v Canada (Minister of National Defence) at paragraph
9:
… prior to this statute there was no common
law or statutory right of access to records held by the Government of Canada
and no right of action in respect thereto. How government institutions
responded to requests by citizens for information was typically a matter for
political judgment only and the sanctions, if any, for refusal to disclose were
essentially political. Into this situation the Access
to Information Act was introduced, relying in large measure on (1) a
statutory codification of rules for the guidance of officials as to what
records should or should not be disclosed; (2) over-all administrative
supervision of all government institutions in this respect by a “designated
minister”, referred to in section 70, who is to keep under review the manner in
which “records” are maintained in the government and to prescribe for all
institutions certain procedures for compliance with the Act; (3) an independent
ombudsman-type officer, the Information Commissioner, who can receive
complaints under the Act or indeed initiate such complaints, and can carry out
investigations which can then be followed by discussions with departments with
a view to resolving the problem without further difficulties; (4) reports to
Parliament and designated committees of both Houses by the Information Commissioner under sections 38 and 39 and by heads of each institution under section
72; and (5) a right to seek judicial review in cases of actual or deemed
refusal of access for the purpose of obtaining that access. It will be seen
from this that a large measure of administrative and political control has been
provided to try to ensure the proper administration of the Act, as well as a
new right of action in specified circumstances. Among other matters of
which complaint may be made to the Information Commissioner, a person
requesting access may pursuant to paragraph 30(1)(c) complain that the
institution head has extended unreasonably the time limit for response. Such
a complaint can be pursued by the Information Commissioner and can be the
subject of a special report to Parliament or be referred to in a general
report. The Information Commissioner can also through such processes identify
and report on patterns of conduct or systemic deficiencies, where similar
complaints are frequently made about the same institution or about access to
the same type of information.
[Emphasis added]
[70]
It appears the OIC is in place to address a
breach of procedural fairness or a lack of investigation and the Federal Court
acts as a safe-guard to the rights of the individual making the request.
B.
Issue 4: Is the applicant entitled to costs in
any event, due to CRA’s misconduct?
[71]
Neither party has made submissions on this
point.
[72]
The Federal Court of Appeal has dealt with a
similar issue in Dagg v Canada (Minister of Industry), 2010 FCA 316, 414
NR 182 [Dagg]. In that case, the applicant had commenced an application
for judicial review due to a deemed refusal. The documents were then provided
to the applicant. The trial judge determined that the application was therefore
moot and that costs should not be awarded.
[73]
The Court of Appeal disagreed, determining that
the documents would not have been released but for the judicial review application
at the Federal Court. The Court said at paragraphs 14 and 15:
14 … Mr. Dagg’s application for judicial
review was not premature when it was commenced. The three prerequisites under
section 41 of the Act were all met. Throughout, the Federal Court had
jurisdiction under section 41 of the Act. Later, when access was provided the
application was rendered moot.
15 But for that error of principle, the
Judge would have considered Mr. Dagg’s claim for costs on the basis that his
application had been properly commenced, but had been rendered moot. The Judge
would also have considered that Mr. Dagg was provided with the requested
records after the application for judicial review was commenced, some 20 months
after the access request had been filed. In the specific circumstances now
before the Court, considering the above factors, I conclude that the Court should
have ordered that Mr. Dagg was entitled to have his costs in the Federal Court.
[74]
The Federal Court of Appeal then went on to
award costs on a party-and-party basis, as a solicitor-client basis was not
warranted because the actions of Industry Canada were not “reprehensible, scandalous or outrageous” (see Dagg
at paragraph 16, citing Young v Young, [1993] 4 S.C.R. 3 at 134, 108 DLR
(4th) 193).
[75]
In this case, party-and-party costs as in Dagg
seem appropriate. The documents were only disclosed due to the filing of the
application for judicial review. The actions of the respondent, though somewhat
inaccurate at times and delayed, eventually turned up the required documents
and there is no evidence on record of malice towards the applicant. They do not
rise to the level of “reprehensible, scandalous or
outrageous” required for solicitor-client costs.
[76]
The applicant has all documentation related to
her request which the respondent is able to disclose. There was a deemed
refusal to disclose, as rightly admitted by the respondent, but there was
additional information on the Synergy corporate taxpayers which could not be
disclosed. The applicant puts forward a case to disclose this information, but
does not effectively demonstrate why she requires it to continue her notice of objection
proceedings.
[77]
This application for judicial review is
therefore dismissed, with costs to the applicant on the party-and-party scale.
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