Rémillard – Federal Court of Appeal finds that the CRA records transmitted to the Federal Court Registry were open to the public absent a specific confidentiality order

The taxpayer sought to challenge, through judicial review, information requests made by CRA to other countries’ tax authorities. After he had requested the certified record contemplated by Federal Court Rules 317 and 318 (containing materials that CRA had considered), he was contacted by a journalist inquiring about the application. The taxpayer immediately obtained a judicial provisional confidentiality order, and launched an application for a declaration that the material communicated in accordance with Rule 318 to the Court Registrar did not form part of the public court file, but was rather akin to documents produced on discovery so as to be subject to an implied undertaking of confidentiality. After agreeing with Pamel J below that such documents were part of the court file and thus accessible to the public under Rule 26 unless a confidentiality order was obtained, Montigny JA went on to reject the taxpayer’s submission (in reliance on Gernhart) that making the certified record public as a matter of course violated section 8 of the Charter, stating:

Anyone engaging the courts in an action … must expect that large parts of his or her private life will become publicly accessible.

… Far from transmitting confidential information without his consent and without informing him, it was rather at Mr. Rémillard's own request that the Minister transmitted the relevant documents to the Court Registry. …

… Mr. Rémillard could have … requested the Court to issue an order to protect the confidentiality of certain information contained in the documents transmitted.

Neal Armstrong. Summaries of Rémillard v. Canada, 2022 CAF 63 under Federal Courts Rules, s. 26(1) and Charter, s. 8.