Chad – Federal Court refuses to take CRA’s word for it that it needed to redact materials in order to conceal its audit methodology

Federal Court Rule 317 provides that “A party may request material relevant to an application that is in the possession of a tribunal [e.g., CRA] whose order is the subject of the application….” The taxpayer requested material relevant to its requested order that CRA requirements for information pursuant to ss. 231.1 and 231.6 be set aside on the basis that they were invalid or overly broad. CRA provided material, but in redacted form, and sought an order pursuant to s. 37 of the Canada Evidence Act to justify this redaction based on full disclosure being injurious to the public interest. The only support provided for this request was a certificate issued by the Director General of the International and Large Business Directorate baldly asserting that such disclosure could be used to circumvent ongoing audit operations.

Noël J essentially indicated that he would not be doing his job as a judge if he simply took CRA’s word for it rather than reviewing the unredacted material himself on an ex parte basis, and so ordered. He also stated that, consistently with s. 2(b) of the Charter, “open and transparent judicial proceedings are fundamental principles of the Canadian legal system,” and indicated that any redaction would need to be quite justifiable. This principle of openness has broader implications.

Neal Armstrong. Summary of Canada (Attorney General) v. Chad, 2018 FC 319 under Canada Evidence Act, s. 37 and Charter s. 2(b).