Citation:
2017TCC82
Date: 20170518
Docket: 2013-3885(IT)G
BETWEEN:
MP
WESTERN PROPERTIES INC.,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent,
Docket:
2013-3888(IT)G
AND BETWEEN:
1073774
PROPERTIES INC.,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent,
Docket:
2014-3959(IT)G
AND BETWEEN:
MADISON
PRACIFIC PROPERTIES INC.,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR ORDER
V.A. Miller J.
[1]
1073774 Properties Inc. is a wholly owned
subsidiary of MP Western Properties Inc. Together they brought a motion seeking
an Order pursuant to sections 70, 95, 110 and subsections 105(2) and 107(3) of
the Tax Court of Canada Rules (General Procedure) (the “Rules”)
to compel the Respondent to produce documents that were refused at the joint
examination for discovery (the “Western Motion”). Madison Pacific Properties
Inc. brought a separate motion seeking a similar Order (the “Madison Motion”).
The two motions were heard at the same time.
Background
[2]
MP Western Properties Inc. (“Western”), 1073774
Properties Inc. (“107”) and Madison Pacific Properties Ltd. (“Madison”) are
part of the same corporate group.
[3]
The issue in each appeal relates to two separate
but similar series of transactions that were carried out by the Appellants’
predecessors who had unused non-capital losses, net capital losses, scientific
research & experimental development (“SRED”) expenses and/or investment tax
credits (“ITCs”) (collectively referred to as the “Tax Attributes”).
[4]
The appeal by Madison is in respect of its
taxation years ending December 31, 2009, December 31, 2011 and August 31,
2013 and relates to a series of transactions that occurred in 1998 (the “1998
Transactions”). The parties to the 1998 Transactions were Vanac Development
Corp. (“Vanac”), Madison Venture Corp. (“Madison Venture”) and Princeton Mining
Corporation (“Princeton”). In 1998, Princeton was a mining company whose shares
were publicly-traded on the TSX. It was insolvent but it had $9.9 million of
non-capital losses and $100 million of net capital losses. Princeton was the
predecessor to the Appellant Madison.
[5]
The appeal by Western is in respect of its
taxation year ending December 31, 2008 and the appeal by 107 is in respect
of its taxation years ending December 31, 2008, 2009 and 2010. The Western and
107 appeals relate to a series of transactions that took place in 2006 (the
“2006 Transactions”). At the time, the predecessor to Western, Fuel Cell
Technology Corporation (“Old Western”) was publicly traded on the TSX Venture
Exchange. Prior to the 2006 Transactions, Old Western together with its then
wholly-owned subsidiary, Fuel Cell Technologies Ltd., the predecessor to 107
(“Old 107”) engaged in an unprofitable business of developing solid oxide fuel
cells. Together, they had accumulated significant amounts of unused non-capital
losses, SRED expenses and/or ITCs from prior years.
[6]
The predecessors to the Appellants, as the
target companies in the 1998 Transactions and the 2006 Transactions, each
entered into a similar court-sanctioned plan of arrangement and a subsequent
asset vend-in agreement with the following entities (collectively called the
“Purchasers”):
a)
in the 1998 Transactions, Princeton entered
into agreements with Vanac, which carried on a profitable real estate business,
and Madison Venture, which carried on a management and investment holding
business, as well as their affiliates; and,
b) in the 2006 Transactions, Old Western and Old 107 entered into
agreements with the present Appellant Madison.
[7]
While the precise mechanisms and the entities
involved in the two sets of transactions were different, the end result of the
transactions share the following common elements:
a)
The Purchasers obtained either on their own or
collectively, less than 50% of the voting shares of the target public
companies, i.e. Princeton and Old Western, but more than 90% of the non-voting
participating shares. Whereas, the pre-arrangement shareholders of Princeton
and Old Western held more than 50% of their voting shares but less than 10% of
the total equity of the companies.
b) The non-voting shares had “coattail
provisions” so they could be converted to voting shares, at the option
of the shareholder, if a specified takeover bid was made to the holders of the
voting shares.
c)
The predecessors to the Appellants, after
changing their corporate names to their current names, carried on the existing
profitable businesses of the Purchasers using the business assets that were
transferred to them pursuant to the asset vend-in agreements.
[8]
In filing their income tax returns during the
years in issue, the Appellants applied some or all of the Tax Attributes to
shelter income derived from their profitable real estate businesses.
[9]
The Minister of National Revenue (the
“Minister”) reassessed each of the Appellants to (i) deny the Tax Attributes
claimed by them; and, (ii) “notionally” delete
any unused Tax Attributes available for carry-forward.
[10]
In reassessing the Appellants, the Minister
relied on the following alternative grounds:
a)
The primary reassessment position was that,
notwithstanding that the Purchasers obtained less than 50% of the voting shares
of the target companies in the 1998 and 2006 Transactions, they had acquired “control” of the Appellants’ predecessors such that
the acquisition of control rules under subsections 111(1), 111(4) and 111(5) of
the Income Tax Act (the “Act”) applied.
b) The secondary ground of reassessment was that the “coattail provisions” on the non-voting shares gave
rise to a right described in paragraph 251(5)(b) and subsection 256(8) of the
Act applied to deem the rights to be exercised.
c)
The third assessing position was that the GAAR
applied to deny the tax benefit obtained by using the Tax Attributes.
The Motions
[11]
During the audit stage of these cases, counsel
for the Appellants filed a request pursuant to the Access to Information Act,
RSC 1985, c A-1 (the “ATIP” requests) with each of Finance and the Canada
Revenue Agency (“CRA”) seeking all written communication for the period January
1, 2001 to 2012 between Finance and CRA that related to the utilization and/or
trading of tax losses. The requests were not specific to the Appellants and
were made in the name of counsel for the Appellants.
[12]
On January 3, 2014, counsel for the Appellants
made another ATIP request to the CRA but in the name of Western for all records
relating directly or indirectly to Western for taxation years ending December
31, 2008 and subsequent.
[13]
In response to the ATIP requests, counsel for
the Appellants received hundreds of pages of documents. Many were redacted
either in full or in part based on various exemptions under the ATIP
legislation. The Appellants listed these documents in their Lists of Documents
and, at the examination for discovery, requested unredacted copies of the
documents. The Appellants now request that the Respondent be compelled to give
them the unredacted version of many of those documents.
[14]
There were three main categories of documents that
were requested and refused (the “Refused Documents”):
a)
In the case of Western and 107 only, the
requests were for the production of all documents in the CRA’s audit file for
the Appellants. The requests included draft documents but excluded documents
protected by solicitor-client privilege. These are Requests #5 and #7 in the
Western Motion.
b) Requests to produce documents that related to policies underlying
the provisions of the Act that the Minister said were abused so that the
GAAR applied - the “CRA-Finance Loss Utilization Correspondence
Record”.
c)
Requests to produce unredacted copies of
documents that had been received as a result of the ATIP requests to CRA and
Finance (Request #3 and #4 in the Western Motion and Request #20 and #21 in the
Madison Motion).
[15]
It is the Appellants’ position that all
documents which are specific to the Western Appeals should be disclosed. The
Minister considered these documents relevant to the Appellants’ audit by the
CRA and they should be produced for the purposes of discovery: HSBC Bank
Canada v The Queen, 2010 TCC 228 at paragraph 15.
[16]
The Appellants stated that the unredacted
portions of the documents received in response to the CRA and Finance ATIP
requests indicated that the information is relevant to the issues in these
appeals. The documents would allow the Appellants to probe the pleadings,
determine the case it has to meet and any weaknesses in the Respondent’s case.
These documents contain letters from CRA to Finance in which CRA lobbied
Finance to amend the Act with respect to subsection 111(5). There is one
letter dated February 1, 2001 in which CRA determined that GAAR did not apply
to a “reverse takeover”. The transactions
involved in the present appeals have been referred to as “reverse takeovers”.
[17]
In 2013, there were substantial amendments to
the sections of the Act which are at issue in these appeals. It is the
Appellants view that unredacted documents from the CRA and Finance would
address the policy behind those sections prior to 2013.
[18]
The Respondent opposed the Motions on the
following bases:
a)
Two of the ATIP requests were not specific to
the Appellants. There was no evidence that the Refused Documents received as a
result of these ATIP requests were prepared in the context of the Appellants’
audit or were considered by officials who were charged with the audit of the
Appellants or who were consulted regarding the application of the GAAR. The
Refused Documents received pursuant to these requests are not relevant in the
circumstances of these appeals: Superior Plus Corp v The Queen, 2015 TCC
132 at paragraph 19; affirmed by The Queen v Superior Plus Corp, 2015
FCA 241 at paragraph 8. I will refer to this Tax Court decision as Superior
Plus No. 1.
b) The Appellants’ request for all correspondence between Finance and CRA
for the period 2001 to 2012 is overbroad, vague, abusive and would place an
undue hardship on the Respondent. It constitutes a fishing expedition: John
Fluevog Boots & Shoes Ltd v The Queen, 2009 TCC 345 at paragraph 18.
Moreover, the Appellants’ requests do not seek extrinsic aids in a GAAR case
rather they seek opinions on the meaning of the term “control”
which is a question of law.
c)
Some of the Refused Documents in Western’s audit
file are draft proposal letters. Western has received the final proposal
letter. The Minister or his employees’ mental process in making an assessment
are not relevant: R v Riendeau, [1991] 2 CTC 64 (FCA) at paragraph 4; Rezek
v Canada, [2000] 2 CTC 2476 (TCC) at paragraph 16.
d) The only documents from Western’s audit file that were not disclosed
were those covered by solicitor/client privilege; those that were draft
documents; and, those that contained third party taxpayer information.
Documents with third party taxpayer information are prohibited from disclosure
by section 241 of the Act. In addition, the third party taxpayer
information is not relevant in the circumstances of the Appellants’ appeals.
General Principles of Discovery
[19]
There is considerable jurisprudence with respect
to the principles applicable to an examination for discovery: Kossow v R,
2008 TCC 422 at paragraph 60; HSBC Bank Canada v R, 2010 TCC 228 at
paragraph 13; Teelucksingh v R, 2010 TCC 94 at paragraph 15.
[20]
While these principles serve as guidelines, the
analysis does not simply end with the application of a general principle. There
is “no magic formula”. Whether, as here, a
particular document ought to be produced at discovery is largely a fact-based
inquiry that must be assessed on a case-by-case basis: R v Lehigh Cement
Limited, 2011 FCA 120 at paragraphs 24 and 25.
[21]
The Appellants’ request for disclosure is
supported by the following general principles:
a)
Relevancy on discovery ought to be “broadly and liberally construed and wide latitude should be
given”: Baxter v Canada, 2004 TCC 636 at paragraph 13.
b) Relevancy at discovery is a lower threshold than that at trial: 4145356
Canada Ltd v R, 2010 TCC 613. In fact, Rule 90 of the Rules
expressly provides that the production of a document at discovery is not an
admission of its relevance or admissibility.
c)
All documents relied on or reviewed by the
Minister in making his assessment must be disclosed to the taxpayer: Amp of
Canada v R, [1987] 1 CTC 256 (FCTD).
d) Documents that lead to an assessment are relevant: HSBC v The
Queen, (supra) at paragraph 15.
e)
Documents in CRA files on a taxpayer are prima
facie relevant, and a request for those documents is itself not a broad or
vague request: HSBC (supra) at paragraph 15.
f)
The examining party is entitled to have any
information, and production of any documents, that may fairly lead to a train
of inquiry that may directly or indirectly advance his case, or damage that of
the opposing party: Lloyd M. Teelucksingh v The Queen, 2010 TCC 94 at
paragraph 15.
[22]
Whereas, the Respondent’s refusal to disclose
the documents is supported by the following general principles:
a)
An indiscriminate request for the production of
documents in the hope of uncovering helpful information or the hope of it
leading to a train of inquiry is not permitted: Harris v The Queen, 2001
DTC 5322 (FCA) at paragraph 45; Fluevog (supra) at paragraph 18.
b) Earlier drafts of a final position paper do not have to be
disclosed. The mental process of the Minister or his officials in raising the
assessments is not relevant: Rezek (supra) at paragraph 16.
c)
A party is entitled to know the position of the
other party with respect to an issue of law, but it is not entitled to have
access to either the legal research or the reasoning by which that position is
arrived at: Teelucksingh (supra) at paragraph 15.
d) Even where relevance is established, the Court has a residual
discretion to disallow the production of documents. This principle was
described in Lehigh (supra) at paragraph 35 as follows:
The exercise of
this discretion requires a weighing of the potential value of the answer
against the risk that a party is abusing the discovery process. See Bristol-Myers
Squibb Co. v. Apotex Inc. at paragraph 34. The Court might disallow a
relevant question where responding to it would place undue hardship on the
answering party, where there are other means of obtaining the information
sought, or where “the question forms part of a ‘fishing
expedition’ of vague and far-reaching scope”: Merck & Co. v.
Apotex Inc., 2003 FCA 438, 312 N.R. 273 at paragraph 10; Apotex Inc. v.
Wellcome Foundation Ltd., 2008 FCA 131, 166 A.C.W.S. (3d) 850 at paragraph
3.
[23]
Maneuvering through these competing principles
in the context of these motions present special challenges due to the unique
nature of a GAAR assessment.
Documentary Discovery in a GAAR
Appeal
[24]
The starting point of any analysis concerning
the relevancy of a document for the purposes of discovery requires an
examination of the allegations of facts and the issues raised in the pleadings:
Smithkline Animal Health Inc v Canada, 2002 FCA 229.
[25]
The Notices of Appeal define two issues:
a)
Whether the Appellants acquired “control” within the meaning of subsections 111(4) and
(5) of the Act; and,
b) Whether the GAAR applied to the 1998 transactions and the 2006
transactions.
[26]
The Respondent addressed these issues in the
Replies and she pled the Policy underlying the relevant provisions.
[27]
In the pleadings for Western and 107, the
Appellants did not raise an issue with respect to the Policy behind subsections
111(4) and (5). They did not file an Answer to the Respondent’s pleadings.
However, Madison did question the Policy behind subsections 111(4) and (5) in
its Notice of Appeal.
[28]
Most recently, in Superior Plus No.1,
Hogan J. dealt with a very similar refusals motion in the context of a GAAR
assessment where the policy behind the various Streaming Rules was at issue. In
that case, Hogan J ordered the disclosure of all refused documents that either
were prepared in the context of the taxpayer’s audit or were considered by the
CRA officials who had charge of the audit or who were consulted during the
audit: SuperiorPlus No.1 at paragraph 19.
[29]
In a GAAR case, documents, not specific to the
taxpayer but relating to the policy of the Act, may be ordered to be
disclosed in certain circumstances. In Lehigh (supra), the circumstances
were that the Crown disclosed a memorandum which dealt with the development of
the general policy concerning the section in issue in that appeal. The Crown
was ordered to disclose all memoranda that were made subsequent to the
disclosed memorandum. This decision was affirmed by the Federal Court of Appeal
– R v Lehigh Cement Limited, 2011 FCA 120.
[30]
In Superior Plus (supra), the Federal
Court of Appeal referred to its decision in Lehigh as follows:
As was held by
this Court in Lehigh Cement Ltd. v. R., 2011 FCA 120 (F.C.A.) [Lehigh]
in like circumstances, information pertaining to the policy of the Act, even
where it is not taxpayer specific, can be relevant on discovery. We accept that
an important consideration in that case was that the Crown had itself established
the relevance of the documents sought by disclosing an internal policy
memorandum on the subject (Lehigh at para. 41). However, relevance in the
present case is no less established by the Tax Court judge's finding that the
refused documents were either prepared in the context of the audit of Superior
Plus or considered by officials who were involved in the audit (Reasons at
para. 19). We can see no basis for distinguishing Lehigh. As always,
the trial judge will be the ultimate arbiter of information garnered at the
discovery stage. (emphasis added)
[31]
In this appeal, there was evidence in the
Western Motion that the auditor had considered one of the Refused Documents. I
will speak to this document in paragraph 35 of my Reasons.
[32]
In tax appeals, the mental process of the
Minister and her officials are normally not relevant and the Respondent may not
be compelled to produce draft documents: Rezek (supra) paragraph 16.
However, the issue in Rezek was not a GAAR assessment. It is my view
that in a GAAR appeal, draft documents prepared in the context of a taxpayer’s
audit or considered by officials involved in or consulted during the audit and
assessment of the taxpayer should be disclosed. They inform the Minister’s
mental process leading up to an assessment. They may also inform the Minister’s
understanding of the policy at issue. As Hogan J stated, these documents in the
end may or may not be relevant or admissible at trial, but they can certainly
lead to a train of inquiry that meets the lower threshold of disclosure in
discovery: Superior Plus No.1 at paragraph 35.
[33]
The draft proposal letters in the Western Motion
are to be given to the Appellant Western.
[34]
At the hearing, counsel for the Respondent gave
me sealed envelopes with unredacted copies of the Refused Documents. Counsel
stated that he would keep the draft documents from the audit file for Western
and he would produce them if I so ordered. However, there were several draft
proposal letters in the sealed envelopes and I will speak to them individually
in my reasons. If there were any other draft proposal letters in Western’s
file, they are to be given to the Appellant Western.
Refused Documents
A. THE WESTERN MOTION
[35]
The Refused Documents in the Western Motion are
as follows:
Request #3: Provide unredacted versions of the following documents for Western
Document 17: Copy of chain of emails dated January 31, 2008
Objection: There is no evidence the document was prepared in the
context of the audit of Western or considered by officials during the audit.
Decision: Appellant received a
redacted copy of Document 17 as a result of the CRA ATIP request which was not
specific to the Appellants. The redacted portion of the document concerns
irrelevant information of other taxpayers which is protected by section 241. The
document does not have to be produced.
Document 18: Copy of letter dated February 18,
2008 from Richard Montroy, CRA to Gerard Lalonde, Finance
Objection: The Appellant obtained a redacted copy as a result of
the CRA ATIP request which was not specific to the Appellants. There is no
evidence the document was prepared in the context of the audit of Western or
considered by the officials during the audit.
Decision: Document 18 does not have to be produced for the same
reason given for Document 17. I note that this
document was reviewed by Hogan J in Superior Plus No.1 and was not
produced. See p.21, Document 17 of that decision.
Document 20 and
Document 60: Copy of letter dated March 8,
2004 from Roy Shultis, CRA to Len Farber, Finance. Document E2004-006210
Objection: There is no evidence the document was prepared in the
context of the audit for the Appellants or was considered by the officials
during the audit. Some of the redacted portion concerns other taxpayers. The
document does not mention any of the Appellants.
Decision: Document 20 was partially
redacted and was received as a result of the CRA ATIP request that was not
specific to the Appellants. However, this same document was received as a
result of the Western ATIP request. It is Document 60 and it was totally
redacted in Western’s ATIP request. This document was in Western’s file and it
was considered by CRA during the audit of Western. The name of the taxpayer
that is mentioned in the document should be redacted. Then, the document must
be produced. There were no attachments to the letter and it was produced
twice at Document 60.
Document 21: Copy of letter dated February 1,
2001 from Roy Shultis, CRA to Len Farber, Finance. Document No. E2001-0068105
Objection: The Appellants obtained a redacted copy of this letter
as a result of the CRA ATIP request which was not specific to the Appellants.
Some of the redacted portion of the document contains taxpayer information that
is protected under section 241.
Decision: There is no evidence that
this document was considered by the CRA officials during the audit of Western.
Some of the redactions contain protected taxpayer information. The document
does not have to be produced.
Document 22: Copy of chain of emails between
Tom Britton, CRA, Beth Schnurr, CRA and Phil Tomsett, CRA dated November 5,
2009 to January 5, 2011. There is a draft proposal letter for Western attached
to the emails.
Objection: Draft Proposal Letter and the Appellants have the final
Proposal Letter.
Decision: The emails and draft proposal letter should be
produced.
Document 23: Chain of emails between Tom
Britton, CRA and Yee Man Mui, CRA dated May 10, 2011 to July 27, 2011.
Decision: There are no redactions on this document.
Document 24: Copy of chain of emails between
Tom Britton and Brent Percival dated July 21, 2011 attaching draft proposal
letter dated March 25, 2013.
Objection: Draft Proposal Letter and Western has the final
Proposal Letter
Decision: The draft proposal letter must be produced. I note
that it is included twice in Document 24 – a copy as sent by Tom Britton and a
copy with suggested changes.
Document 26: Draft Proposal Letter dated July
27, 2011
Decision: The draft proposal letter should be produced. There
are 25 pages in this letter.
Document 36: Memo for File
Objection: The redacted portion of the document concerns other
taxpayers; their information is protected under section 241.
Decision: The redacted information is not relevant to the
Appellants. It is irrelevant taxpayer information and does not have to be disclosed.
Document 37: Audit Report for Western that
relates to management fees and change in permanent establishment.
Objection: The redacted portion of the document concerns other
taxpayers and the information is protected under section 241.
Decision: The redacted portions of the document contain third
party information that is protected under section 241. The information is not
relevant to the Appellants or to the issue in these appeals.
Document 40: Copy of chain of emails between
Tom Britton, CRA and Carole Benoit, Justice
Objection: The Appellant obtained a redacted copy as a result of
the Western ATIP request. The redacted portions concern other taxpayers. The
document is subject to solicitor-client privilege.
Decision: The redactions should not be produced. The document is
subject to solicitor-client privilege.
Document 45: Copy of emails between Mark
Symes, CRA, Davine Roach, Finance, Gurinderpal Grewal and Robert Duong dated
December 7, 2012 and attachment
Objection: The Appellants obtained a copy as a result of the CRA
ATIP request which was not specific to the Appellants. Some of the redacted
portions of the document contain taxpayer information that is protected under
section 241. There is no evidence that the document was prepared in the context
of the audit of the Appellants or considered by the officials during the audit.
Decision: There is no evidence that this document was prepared
in the context of the Appellants audit or that it was considered by the
officials during the audit. It contains protected taxpayer information. The
redacted portions should not be produced.
Document 47: Copy of document 2012-0472191,
letter from Mark Symes, CRA to Shawn Porter, Finance dated December 21, 2012
Objection: The Appellants obtained a copy as a result of the CRA
ATIP request which was not specific to the Appellants. Some of the redacted
portions of the document contain taxpayer information that is protected under
section 241. There is no evidence that the document was prepared in the context
of the audit of the Appellants or considered by the officials during the audit.
Decision: The redacted portions should not be produced for the
same reasons given in Document 45.
Document 48: There are no redactions in this document
Document 49: There are no redactions in this
document
Document 52: Draft proposal letter dated March
25, 2013
Objection: Draft Proposal Letter
Decision: The draft proposal letter should be produced. There
are two draft letters dated March 4, 2013 and one draft letter dated March 25,
2013.
Request #4 - Provide
an unredacted version of the internal ruling letter referred to as an
attachment in Document 40 as well as any other attachments to Documents 17,18,
20, 21, 22, 23, 24, 26, 36, 37, 40, 45, 47, 48, 49, 52 and 60.
Objection: There were no attachments to the Documents 17, 20, 23,
36, 37, 45, and 48. The attachments to Documents 18, 21, 24, 26, 40, 47, and 60
were not produced for the same reasons the unredacted copies of the underlying
documents were not produced. The attachment to Document 22 is a draft proposal
letter. The attachment referred to in document 40 is identical to Document 60
and is not produced for the same reason that Document 60 was refused. There is
no redaction to Documents 23 and 49. The attachment to Document 52 is a draft
proposal letter.
Decision: There are no attachments to the Documents 17, 18, 20,
23, 36, 37, 40, 45, 47, 48,
The redactions to Document 21 do not have to be produced and the
attachment does not have to be produced.
The redactions to Document 40 do not have to be produced.
Documents 22, 24, 26 should be produced with their attachments.
Request #5 - Make
best efforts to ensure that the Appellant is provided with complete
correspondence between Mr. Britton and the officials in the CRA, the GAAR
committee or head office.
Objection – all correspondence, other than correspondence
in relation to draft documents and documents protected by solicitor-client
privilege was disclosed in response to Request #5.
Decision - The correspondence in relation to draft proposal letters
and the draft proposal letters in Request #5 in the Western Motion are to be
given to Western.
Request #6 - Provide
unredacted version of Document 19 and provide full record of the correspondence
during the period 2001 to 2012 between the Department of Finance and the CRA,
including emails, memos and letters, with respect to the CRA’s perceived
deficiency in the legislative scheme dealing with tax losses.
Objection – Document 19 has not been redacted. This request is
vague, overbroad and an impermissible fishing expedition. It will not lead to
any permissible extrinsic aids but only to opinions of individuals regarding
their opinions on a very broad legislative scheme.
Decision – Document 19 was not in the binder with the unredacted
documents. The Appellant received a copy of Documents 17, 18, 20, 21, 45 and 47
as a result of the CRA ATIP request that was not specific to the Appellants.
There was no evidence that any of these documents were prepared in the context
of the Appellants’ audit. There was evidence that only Document 20 was considered
during the audit of Western. The Appellants request is a “fishing expedition of vague and far-reaching scope”.
It is overly broad and it would be an onerous task to satisfy. Any documents
obtained would contain the opinions of the writers who were not involved in the
audit of the Appellants. This search does not have to be undertaken. The
request is refused.
Request #7 - To
the extent not already provided, provide Mr. Britton’s complete audit file in
terms of notes, correspondence and memoranda.
Objection – Further documents were given to the Appellants in
response to Request #7. Some correspondence was withheld on the basis of
solicitor-client privilege and draft proposal letters were withheld.
Decision - I have reviewed the documents marked Requests #5 and #7
in the sealed envelope and they are all covered by solicitor-client privilege
except one. There was an email string between Brent Percival and Tom Britton
dated February 22 and 27, 2013 with comments, questions and suggestions
concerning Mr. Britton’s draft of his “closing letter”.
This document should be produced.
B. THE MADISON MOTION
[36]
The Refused Documents in the Madison Appeal are
as follows:
Request #20 - Produce
unredacted copies of the documents at Tabs 77, 78, 80, 81 and 108.
Document 77 –This document is the same as that at Document 17 in
Request #3 and #4 in Western.
Decision –The decision is the same as was given at Document 17 for
Western.
Document 78 –This document is the same as that at Document 18 in
Request #3 and 4 in Western.
Decision –The decision is the same as was given at Document 18 for
Western.
Document 80 –This document is the same as that at Document 20 in
Request #3 and #4 in Western and Document 60 in Request #3.
Decision –The decision has already been made for this document at
Document 60 for Western.
Document 81 –This document is the same as that at Document 21 in
Request #3 Western.
Decision –The decision has already been made for this document at
Document 21 for Western.
Document 108 –The Appellant obtained these documents as a result of
the Finance ATIP request which was not specific to the Appellants. There were
26 documents included in Document 108.
|
|
Document
|
Decision
|
|
#441
|
Agenda for
meeting between Finance and CRA, August 31, 2005 and email from Ryan Hall to
Lawrence Purdy
|
Agenda is
not redacted. There is no evidence that the document was considered by
officials of CRA during the audit of the Appellants. The redacted portions do
not have to be produced.
|
|
#444
|
Letter dated
December 6, 2004 from Jackson MacGillivray, CRA to Ryan Hall, Finance; E
2001-0068105, referral to Finance February 1, 2001; Letter dated October 22,
1992 from Len Farber to R.J.L. Read.
|
The
redacted portions do not have to be produced for the same reason given for #441.
In addition, the redacted portions contain taxpayer information which is
protected by s.241.
|
|
#488
|
Tax Loopholes
Identified July 2011
|
The
redacted portions do not have to be produced for the same reason given for
#441.
|
|
#526
|
Canada Revenue
Agency Proposals for 2012 Legislative Priorities
|
The
redacted portions do not have to be produced for the same reason given for
#441.
|
|
#427
|
Letter dated
July 1, 2001 from Len Farber to Roy Shultis
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#429
|
Letter dated
August 20, 2002 from Len Farber to Roy Shultis.
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#192
|
Document
2001-006790
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#199
|
Chain of
emails dated September 1, 2011 between Davine Roach, Finance and Grant Nash,
Finance.
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#202
|
Email dated
June 12, 2009 from Ed Short, Finance to Gerard Lalonde, Finance
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#206
|
Email dated May 21, 2009 from Lori Carruthers, Finance to Ed
Short, Finance.
|
There are
no redactions in this document.
|
|
#224
|
Email chain
dated November 20, 2012 between Davine Roach, Finance and Kerry Harnish,
Finance
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#225
|
Email dated
January 30, 2012 from Kerry Harnish to Davine Roach.
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#226
|
Email dated
December 20, 2011 from Gurinderpal Grewal to Fiona Harrison
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#228
|
Chain of
emails dated March 20, 2009 between Kerry Harnish and Yves Moreno.
|
The
redacted portion is not relevant to the Appellants’ appeals.
|
|
#243
|
Chain of
emails dated March 12, 2013 between Davine Roach and Grant Nash.
|
There are
no redactions in document #243.
|
|
#262
|
Letter dated
February 22, 2011 from Brian McCauley, CRA to Geoff Trueman, Finance with an
attachment.
|
The
redacted portions do not have to be produced for the same reason given for
#441.
|
|
#294
|
Letter dated
July 14, 2006 from Marc Vanasse, CRA to Brian Ernewein, Finance with an
attached memorandum
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#303
|
Document
2012-044556 (dated August 27, 2012) from Katie Campbell to the GAAR
Committee.
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#325
|
Document E
2004-0062101F11 dated March 8, 2004 authored by Jackson MacGillivray.
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#334
|
Memorandum
dated May 25, 2004 from Fiona Harrison, CRA, to the GAAR Committee.
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#343
|
Chain of
emails dated May 26, 2004 from Fiona Francis, CRA, to Mark Symes.
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#350
|
Email dated
September 8, 2005 from Marc Vanasse, CRA to Brian Ernewein, Finance with an
attachment.
|
There were
no redactions to this document.
|
|
#128
|
Chain of
emails dated December 15, 2005 from Marc Symes, CRA to Ryan Hall, Finance
with attachments
|
The
redacted portions at #128 do not have to be produced for the same reason
given for #441. In addition it contains taxpayer information which is
protected by s.241. Document E2004-006210 is an attachment to these emails
and it has been ordered to be produced in Western document #60.
|
|
#412
|
Charts with
taxpayer information
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition it contains taxpayer information which is protected by
s.241.
|
|
#015
|
Email chain
dated January 7, 2013 from Gurinderpal Grewal, Finance to Mark Symes, CRA
|
The
redacted portion does not have to be produced for the same reason given for
#441.
|
|
#051
|
Email chain
dated May 19, 2011 from Venetia Putureanu, Finance to Davine Roach and Kerry
Harnish, CRA with attachment
|
The
redacted portion does not have to be produced for the same reason given for
#441. In addition, the redactions on pages 4 and 15 contain taxpayer
information which is protected by s.241.
|
Request #21 -Provide
any attachments to the Access to Information Act documents
I have already
addressed this request within my decision for Request # 20.
Request #23 -(i) Produce
(unredacted) copies of correspondence between the legislative policy division,
income tax rulings directorate and/or GAAR Committee of the CRA and the
legislative division of the Department of Finance for the period 2001 through
2012 with respect to the legislative scheme within the Income Tax Act dealing
with so-called corporate loss trading, tech wrecks, transfer of corporate
losses or whatever the colloquial terms might be, including any emails, memos
and letters.
(ii) In producing the requested documents, identify the
position(s) that each person (who is referenced in the documents, holds or held
at the time to the extent that it is not ascertainable from the document.
Decision: The redacted documents were produced pursuant to an
ATIP request in counsel’s name. In the context of this ATIP request, there was
no evidence that any of the documents were prepared in the context of the audit
of the Appellants or considered by the officials during the audit. The
Appellants request is a “fishing expedition of vague and far-reaching scope”.
It is overly broad and it would be an onerous task to satisfy. Any documents
obtained would contain the opinions of the writers who were not involved in the
audit of the Appellants. This search does not have to be undertaken. The
request is refused.
[37]
The motions are allowed in accordance with the
above Reasons. There are no costs awarded in these motions as success is
divided.
Signed
at Ottawa, Canada, this 18th day of May 2017.
“V.A. Miller”
Email this Content