Rip T.C.J.:
1 Owen Holdings Ltd., the applicant, made a motion for two orders, one order under subsection 82(1) of the Tax Court of Canada Rules (General Procedure) (“Rules”) that the respondent file a full list of documents verified by affidavit; and the second order, that respondent “produce for discovery an officer, employee or agent who has complied with [subsection 95(3) of the said Rules] and who is prepared to be discovered on, inter alia, those matters set out” in a letter of March 12, 1996 from the appellant's counsel to counsel for the respondent which letter is attached as Exhibit A to an affidavit of Michelle Brown, secretary to applicant's counsel, in support of the motion. Both matters are related since the documents the appellant wants is the respondent's full list of documents are the documents set out in the letter of March 12, 1996.
2 The applicant has appealed an assessment from income tax for its 1992 taxation year in which the Minister of National Revenue (“Minister”) disallowed a loss claimed by the applicant. The Minister viewed a transaction entered into by the applicant as part of a series of transactions which series would, but for section 245 of the Income Tax Act (“Act”), result in a tax benefit, in circumstances where it may not reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain a tax benefit. The Minister is of the view the transaction resulted directly or indirectly in a misuse of the provisions of the Act, in particular, subsection 85(5.1) and paragraph 69(5)(d), or an abuse having regard to the provisions of the Act, other than section 245, read as a whole.
3 The applicant filed a Notice of Appeal against the assessment asking that it be vacated on the grounds that (a) section 245 is unconstitutional as being too vague and hence contrary to the rule of law, and (b) in any event section 245 does not apply to the facts leading to the assessment.
4 According to the affidavit of Michelle Brown, Mr. Joel Nitikman, the applicant's counsel, wrote on March 12, 1996 to a solicitor for the respondent, requesting that the officer of the respondent to be examined for discovery make himself familiar with several topics outlined in the letter. Ms. Brown also deposed that on May 15, 1996 Mr. Nitikman was informed by the respondent's solicitor that the respondent would not file a list of documents under Rule 82 but would file a list under Rule 81. Respondent's solicitor also informed Mr. Nitikman that the respondent's officer would not inform himself of the matters set out in the March 12 letter as in his view these matters were not properly discoverable.
5 In paragraph 4 of his letter of March 12, Mr. Nitikman stated he “expected” the person to be examined on behalf of the respondent “be familiar with at least the following matters”:
(i) all reports, memoranda, notes, e-mails, etc. (“reports”) leading up to the drafting of GAAR, including all drafts of the Explanatory Notes to GAAR and any reports relating to those Explanatory Notes;
(ii) all reports leading up to the drafting of subsection 85(5.1) and paragraphs 69(5)(d) and 88(1)(d.1);
(iii) full copies of all reports given to either Head Office by the Edmonton District Office or by Head Office to the GAAR Committee relating to Owen Holding, Mayfield, Wendon Investments, or the Owen Family Trust, including any drafts of those reports;
(iv) full copies of all GAAR Committee reports dealing with Owen Holding, Mayfield, Wendon or the Owen Family Trust, including any drafts of those reports;
(v) all reports leading up to the drafting of the following documents on the Appellant's List: 5, 6, 7, 8, 9, 11, 14, 19, 20, 22, 36, 37, 38, 46, 65, 189 (to the extent it deals with loss transfers between related parties), 190, 191, 193, 213, 214;
(vi) all reports relating to testimony by various Finance officials before the Commons and Senate Committees relating to GAAR (Appellant's List #15, 28, 29, 31);
(viii)full copies of all documents in the Appellant's List requested under the Access to Information Act and exempted from disclosure under that Act (Appellant's List #198, 199, 203, 206);
(ix)any Advance Rulings or Technical Interpretations issued to any other taxpayer concerning the application of GAAR in the context of a transfer of property with an inherent loss to a related party (see subsection 241(3) and Ouellet c. R., 94 D.T.C. 1315 (TCC); to the extent the above are not covered by privilege.
Reasonable Inquiries
6 I shall deal firstly with the motion for the second order. Rule 95(2) reads as follows:
(2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party's officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.
7 Under Rule 95(2) every person to be examined for discovery has a duty to inform himself or herself of the matters in issue in the litigation. In so informing oneself, the person is obliged to make all reasonable inquiries of the officers, employees and agents of the party on behalf of whom that person is being discovered as to the personal knowledge acquired by them in their capacities as officers, employees or agents: see, for example, R. v. Indalex Ltd. (1984), 84 D.T.C. 6018 (Fed. T.D.).
8 If, during the examination for discovery, the opposing party believes the person being examined is not well informed, Rule 95(2) permits the examination to be adjourned so that the person may become better informed. If there is a dispute between the parties as to whether the person being examined is or is not well informed, the examining party may apply to the Court for an order compelling the person being examined to become better informed. The Rules do not contemplate the Court entertaining such an application before the discovery has even started. One must assume the parties are acting in good faith and that the person to be examined will make the reasonable inquiries required by Rule 95(2) before he or she attends at the examination. In Weight Watchers International Inc. v. Weight Watchers of Ontario Ltd. (1973), 14 C.P.R. (2d) 264 (Fed. T.D.), Heald J., at page 266, stated that:
It seems to me that in the circumstances of these cases, Joyce Reid is clearly a proper person.
The plaintiffs will not be prejudiced in the event it transpires on the resumption of the examination, that she does not have full knowledge of the relevant facts. She is being examined, not as an individual, but as an officer of these corporations and has a duly to inform herself. If she does not do so, the practice is clear that the examination should be further adjourned so that she may ascertain the necessary facts and give the answers of the resumption of the examination.
9 In my view the applicant's motion for an order that the respondent produce for discovery a person who has complied with Rule 95(2) is premature. In the normal course of preparing for discovery the person to be examined will make the reasonable inquiries required by Rule 95(2) and will also obtain knowledge of all documents in the possession, control or power of the party on behalf of whom that person is to be discovered relating to any matter in question in the appeal. There is a dispute between the parties as to whether certain material is properly discoverable: this is the issue in the motion for the first order. However, there is no evidence that the party to be examined on behalf of the respondent will not adhere to the Rules or will not inform himself of any documents the Court may direct to be included in a list in accordance with Rule 82.
List of Documents
10 While it was not clear from the Notice of Motion that the applicant is asking for a production of documents, both counsel agreed that the applicant is seeking an order pursuant to Rule 82 directing the respondent to produce copies of documents described in paragraph 4 of his letter. Counsel for the respondent also advised that the Crown has agreed to produce documents described in subparagraphs 4 (iii) and (iv) of Mr. Nitikman's letter.
11 Paragraph 4 of Mr. Nitikman's letter of March 12, 1996 cautions references to eight categories of documents. I shall refer to these documents as categories I to IX. (There is no category VII). Category I documents relate to the constitutional issue. A court must consider the purpose, subject matter and nature of the legislation before it may consider whether a provision is void for vagueness: R. v. Canadian Pacific Ltd. (1995), 125 D.L.R. (4th) 385 at 413 (S.C.C.).
12 Mr. Nitikman said documents in category II relate to the drafting of the statutory provisions. The Minister is of the view the applicant misused certain provisions of the Act. The documents in category II, Mr. Nitikman submitted, may explain the reason that provisions were incorporated into the Act. The taxpayer may learn the government's policy from these documents. Mr. Nitikman referred to paragraph 88(1)(d.1) of the Act which, he said, is “parallel to” paragraph 69(5)(b.1). Revenue Canada's policy with respect to the treatment of losses on a winding up of a corporation may be relevant to determine if there has been a misuse of paragraph 69(5)(d), said counsel.
13 The documents in category V are background documents, Mr. Nitikman explained. They include public documents leading to the final version of paragraph 85(5.1), for example. He said he knows the contents of the final versions of the statutory provisions but requires previous drafts to assist in determining if his client “misused the provisions of the Act”. He also wants documents used to formulate Revenue Canada's policy with respect to transfers of property between companies. Category V documents also include Revenue Canada Technical Interpretations and a GST memorandum “to show Revenue Canada was correct in the past”, documents used by Revenue Canada officials prepare for conferences, and material considered by the Department of Finance in the course of drafting legislation and explanatory notes to the draft legislation. Mr. Nitikman says he also requires information with respect to the reasons certain provisions, for example, paragraph 69(5)(a), are being amended and the purpose of the new legislation since, in his view, they may relate to subsection 85(5.1).
14 Documents in category VI include briefing notes relied on by government officials to prepare their testimony. Mr. Nitikman is aware of the actual testimony of the officials. However, Mr. Nitikman said documents used as briefing notes, for example, go to the very nature of the impugned provisions: R. v. Canadian Pacific Ltd., supra.
15 Documents in category VIII were requested under the Access to Information Act and denied. They are referred to, for example, as papers 00001, 00002 of documents requested. These papers, Mr. Nitikman said, are blank papers with a notation they are exempt from disclosure. I do not know what these documents are or to what they relate. Mr. Nitikman wants the contents of the documents revealed not under Access to Information legislation but in accordance with Rule 82. In his view these documents “must relate to Owen Holdings ...[There is] ... something there that Revenue Canada doesn't want us to see...”.
16 Documents in category IX are self-explanatory. The applicant may wish to attack the assessment by showing that the Minister's interpretation of section 245 is incorrect. One method of attack is to compare the Minister's previous interpretations that were correct to those which led to the assessments under appeal: Lemieux v. Minister of National Revenue (UI)(T.C.C.) and Ludco Enterprises Ltd./Entreprises Ludco Ltée v. R. (1994), [1996] 3 C.T.C. 74, 95 D.T.C. 5311 (Eng.)(Fed. C.A.) at 5315.
17 Rule 82(1) states:
The parties may agree or, in the absence of agreement, either party may apply to the Court for a judgment directing that each party shall file and serve on each other party a list of all the documents which are or have been in that party's possession, control or power relating to any matter in question between or among them in the appeal.
18 Mr. Nitikman cautioned that Rule 82(1) contains the phrase “... list of documents ... relating to any matter in question...” Rule 95(1) also uses the words “relating to any matter ...” with respect to the limits of an examination of discovery. Mr. Nitikman stated that the analogous rule of most courts contain the words “relevant to”, not “relating to”, and I should approach the reported cases with caution.
19 Mr. Nitikman reviewed Rule 82. He referred to Canada (Attorney General) v. Bassermann (1994), 114 D.L.R. (4th) 104 (Fed. C.A.)at pp 106-107, where Mahoney J.A. considered the words “relating to” in Rule 17 of the Tax Court of Canada Rules of Procedure (Unemployment Insurance Act, 1971), since replaced by Rule 14, Tax Court of Canada Rules of Procedure respecting the Unemployment Insurance Act, SOR/90-690. Mahoney J.A. referred to the comments of Dickson, J., as he then was, in Nowegijick v. R., [1983] 1 S.C.R. 29, 83 D.T.C. 5041 (S.C.C.). In that case the Supreme Court considered the meaning of section 87 of the Indian Act, R.S.C. 1970, c.I-6 (now R.S., c.I-5) which, in part, provided that no Indian is subject to taxation “in respect of” property situated on a reserve. Dickson J., said at p. 5045:
The words “in respect of” are, in my opinion, words of the widest possible scope. They import such meanings as “in relation to”, “with reference to” or “in connection with”. The phrase “in respect of” is probably the widest of any expression intended to convey some connection between two related subject matters.
20 Mahoney J.A., declared “that ‘relating to’ are words of comparable scope”.
He stated: ... the words “relating to any matter in question” in the rules are broad enough to support the order made and the words “relating to the matter wether the scope of the proceeding” in the order are broad enough to require production of third party tax returns in issue. It is not necessary that they be relevant to any issue to be resolved in the litigation, only that they relate to a matter in question.
21 The analogous rule of the Federal Court of Canada, Rules 447 to 453, Mahoney J.A. noted, require disclosure of and provide for production of “all documents relevant to any matter in issue”.
22 Mr. Nitikman also referred to my colleague Judge Margeson's findings of a similar distinction between documents “relevant to” an issue and “relating to” an issue: Hawkes v. R. (IT)G, 94-1934(IT)G (T.C.C.) at paragraphs 75 to 77 inclusive. Margeson T.C.C.J. cautioned that the Court “should be careful not to place too high a burden or threshold upon the appellant so that the ultimate effect would be that the appellant would be deprived of information that might entitle him to attack the respondent's case or establish his own”. Whether a document is relevant at this stage of the proceedings, Margeson T.C.C.J. said, is not the question before the Court.
23 Respondent's counsel submitted that the test whether a document relates to a matter in question is set out in Cie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (Eng. C.A.)where Brett, L.J., at p. 63, stated:
It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may- not which must- either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences...
24 With respect to the applicant's constitutional argument, counsel for the respondent referred to the following statement by Sopinka J. in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 (S.C.C.), at 109:
It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: “adjudicative facts” and “legislative facts”. These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, “Proof of Facts in Charter Litigation”, in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis' words, “who did what, where, when, how, and with what motive or intent...” Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.
25 Applicant's counsel declared that the documents requested do not meet the Supreme Court's test for admissibility.
Analysis
26 In the recent decision of Ouellet c. R. (1993), 94 D.T.C. 1315 (T.C.C.), my colleague Judge Lamarre Proulx reviewed the law concerning when a document “relates” to a matter in question between the parties. She relied principally on the analysis contained in Ikea Ltd./Ikea Ltée v. Idea Design Ltd., [1987] 3 F.C. 317 (Fed. T.D.). In Ikea, McNair J. analyzed the meaning of Rule 448 of the Federal Court, a provision which is very similar in wording to Rule 82(1). Lamarre Proulx T.C.C.J. adopted McNair's analysis of the meaning of the words “relating to”. At pp. 326 and 327 McNair J. cited with approval the passage of Brett L.J. in Compagnie Financière, supra, and added that:
This general principle has been consistently followed and applied by the courts over the years, and has been extended to the area of the production of documents.
In Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.), McEachern, C.J., stated the following test of relevancy for the production of documents [at page 359]:
It seems to me that the clear right of the plaintiffs to have access to documents which may fairly lead them to a train of inquiry which may directly or indirectly advance their case or damage the defendant's case particularly on the crucial question of one party's version of the agreement being more probably correct than the other, entitles the plaintiffs to succeed on some parts of this application. Other parts seem to me, with respect, to be asking for too much.
In Everest& Jennings Canadian Ltd. v. Invacare Corporation, [1984] 1 F.C. 856, the Federal Court of Appeal upheld an appeal from an order refusing to require the respondent to produce the balance of a file from which an exhibit had been produced on the examination for discovery of its officer on the ground of its irrelevancy. The Court held that the production of the exhibit was an acknowledgment of the relevancy of the file itself.
In reaching this result, Mr. Justice Urie, delivering judgment for the Court, expressly adopted the test of McEachern, C.J., as the correct test of relevancy for purposes of discovery.
The question of the precise extent of the right to discovery of documents that may enable a party to advance his own case or damage the case of his adversary must be decided by reference to the description of the nature of the documents sought to be discovered and their relevance to the matters in issue, based upon a reasonable interpretation of the pleadings: Compagnie Financière du Pacifique v. Peruvian Guano Company, supra; Boxer v. Reesor, supra; R. v. Special Risks Holdings Inc.[83 D.T.C. 5046],[1983] 2 F.C. 743 (C.A.); and Koninklijke Nederlandsche Stoombootmaatschappij N.V. (Royal Netherlands Steamship Co.) v. R., [1967] 2 Ex. C.R. 22.
27 This same test was also used by the Federal Court (Trial Division) in Oro Del Norte S.A. v. R. (1990), 90 D.T.C. 6373 (Fed. T.D.).
28 As to the appellant's arguments based on Canada (Attorney General), supra, and Hawkes, supra, that the test under Rule 82 is wider than the test outlined above, I note that in Hawkes, Judge Margeson specifically adopted the above test at paragraph 79 of his judgment:
The Court is satisfied that the best test is a combination of the test used in the case of Oro Del Norte, S.A., supra, and the test expounded by McCrachen, C.J. in Boxer& Boxer Holdings Ltd. v. Reesor et al., (1983) 43 B.C.L.R., 351 (B.C.Sup.Ct.) and adopted by Urie, J. in Everest and Jennings Canadian Limited v. Invacare Corporation, supra, after one takes into account Tax Court Rule 82(1). That test requires the Court to permit the taxpayer access to all documents which are relevant to any matter in question between the taxpayer and the Minister, which are related to any matter in question between the taxpayer and the Minister or which were relied upon by the Minister in making his assessment of the Appellant.
29 The words “in respect of”, which entail the meanings “in relation to” and “in connection with”, are, as stated by Dickson J., in Nowegijick, supra, of widest possible scope. These words convey a connection - the widest possible connection - between two related subject matters. In Rule 82 the connection is between the documents in a party's possession and matter in question between the parties. It must not be overlooked that there must be a connection, ever so slight, between the documents and the matter in question. The applicant must establish such connection. It is not enough to say, in my view, that any document touching on or referring to section 245 of the Act is connected with a matter in question: such an interpretation of Rule 82(1) would encourage fishing expeditions. Just about any document in government concerning the Income Tax Act would be open season for taxpayer. The party demanding a document must demonstrate that the information in the document may advance his own case or damage his or her adversary's case: Compagnie Financière, supra.
Review of Documents
a) Categories I, V and VI
30 The applicant has argued that when a court considers whether a statutory provision is vague, the court must look at the purpose, subject matter and nature of the impugned provision. The applicant states that these documents may shed light on the purpose, subject matter and nature of section 245, and so they should be disclosed.
31 The Minister argued that these documents are inadmissible for two reasons. The first is that they fall outside of the definition of “legislative facts”. The question of admissibility of legislative facts occurs primarily in cases where there is a constitutional issue. Legislative facts are “facts involved in decisions or policy”: per L'Heureux-Dubé J. in Willick v. Willick, [1994] 3 S.C.R. 670 (S.C.C.)at p. 701. They establish the purpose and background of legislation, including its social, economic and cultural context: per Sopinka J. in Danson, supra. Legislative facts involve “prediction about the social effects of legal rules, which are invariably subject to dispute ...” per LaForest J. in RJR-Macdonald Inc. c. Canada (Procureur général) (A.G.),[1995] 3 S.C.R. 199 (S.C.C.), at 28 citing Woolhandler, Ann, “Rethinking the Judicial Reception of Legislative Facts” (1988), 41 Vand. L. Rev. 111 at pp. 114 and 123. The documents in categories I, V and VI, counsel submits, are not legislative facts; they do not establish the purpose and background of the legislation in question. I agree.
32 The second reason is that the materials are simply the opinions of writers and thus the court cannot take them into consideration when determining the purpose, subject matter and nature of section 245, per Findlayson J.A. of the Ontario Court of Appeal in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, (1991)2 O.R. (3d) 65 (Ont. C.A.), at 11. The Minister also submits that the applicant has not shown that these documents could possibly lead to relevant evidence.
33 Professor Peter Hogg in his book Constitutional Law of Canada suggests that legislative history of a challenged statute is admissible in evidence, notwithstanding legislative history has usually been held inadmissible in Canada under the ordinary rules of statutory interpretations. He writes that the interpretation of a particular provision of a statute is an entirely different process from the classification of the statute for purposes of judicial review. Professor Hogg acknowledges the term “legislative history” has no previous meaning. Legislative history and legislative facts are not the same. Professor Hogg uses the term legislative history to mean the documentary evidence of the events that occurred during the drafting and enactment of a statute and may include the following elements:
1. the report of a royal commission or law reform commission or parliamentary committee recommending that a statute be enacted;
2. a government policy paper (whether called a white paper, green paper, budget paper or whatever) recommending that a statute be enacted;
3. a report or study produced outside government which existed at the time of the enactment of the statute and was relied upon by the government that introduced the legislation;
4. earlier versions of the statute, either before or after its introduction into Parliament or the Legislature;
5. statements by minister or members of Parliament and testimony of expert witnesses before a parliamentary committee charged with studying the bill; and
6. speeches in the Parliament or Legislature when the bill is being debated.
34 Professor Hogg writes that such legislative history is admissible to show “the purpose of the statute and other matters relevant to its constitutional validity”.
35 Traditionally, in non-constitutional cases, the rule has been that legislative history is inadmissible as an aid in interpreting a statute, except to show the mischief at which the legislation was directed.. Lately, however, this rule has been relaxed. For example, in R. v Fibreco Export Inc. et al. (1995), 95 D.T.C. 5412 (Fed. C.A.)at 5413, Hugesson, J.A. opined that:
...while the law appears to us to be in a state of some uncertainty as to the use which may be made of such materials in the interpretation of statutes, it seems to us that the debate turns upon questions of weight rather than of admissibility, and that it is error for a Trial judge to exclude such evidence.
36 See also Pepper (Inspector of Taxes) v. Hart (1993), [1992] 3 W.L.R. 1032 (H.L.).
37 The materials in categories I, V and VI include documents that were considered by the draftmen of the legislation and policy and persons testifying before committees of Parliament but these documents were not the legislative facts contemplated by Justices of the Supreme Court in Danson, Willick and RJR-MacDonald cases. Neither are these materials included in any of the categories listed by Professor Hogg as being admissible legislative history; they are not analogous to items on Professor Hogg's list and there is no evidence that they would lead directly or indirectly to any admissible legislative history. The documents requested by the applicant precede the reports, papers, studies, statements and speeches that are legislative history. Simply put, documents prepared in contemplation of a report, paper, study, statement or speech are not included in legislative history. The reason is obvious: there may be a multitude of studies undertaken in the course of drafting a statutory provision. Some studies may recommend one course of action, another a second course of action and yet others recommend other options. These studies, contradictory or not, are not legislative history. It is the report or speech announcing a government policy, program or initiative that becomes the legislative history of the proposed enactment. The applicant's request for the documentation in categories I, V and VI is refused.
b) Category II Documents
38 The applicant argues that these documents may shed light on the purpose of these provisions. Applicant's counsel argues that he must determine the purposes of subsection 85(5.1) and paragraph 69(5)(d) because he needs to rebut the argument under section 245 that his client misused these provisions when carrying out the series of transactions attacked by the fisc.
39 The applicant has again not shown that the category II documents would lead to anything that would advance its case or damage its adversary's case. My reasons for referring categories I, V and VI documents apply here as well.
c) Category VIII Documents
40 My problem here is that I do not know - and applicant's counsel does not know - what these documents are. It would be foolhardy for me to rule on the admissibility these documents not knowing what they are. I shall therefore order the respondent to place these documents in a sealed envelope and deliver the envelope to me within 30 days of my Order. I shall then consider whether the documents relate to any matter in question between the parties.
d) Category IX Documents
41 In Ludco Enterprises Ltd./Entreprises Ludco Ltée, supra, the Federal Court of Appeal held that the appellants may file certain documents (pamphlets, etc.) showing that the Minister's position in that case differed from her previously published position and that the previous position was correct in law. Here the applicant is arguing that category IX documents may contain interpretations of section 245 with respect to transfers of property. These interpretations may differ from the interpretation being put forward by the Minister in this case. If this were so, then the applicant may use these different interpretations to show that the Minister's interpretation when assessing it was incorrect.
42 These documents may or may not “fairly lead ... to a train of inquiry which may directly or indirectly advance or damage the defendant's case”. This is because the applicant does not know whether conflicting rulings concerning the application of GAAR to transfers of property have been given to other taxpayers. The applicant should be given the opportunity of reviewing how the Minister has assessed or ruled in similar fact situations. I am inclined in these circumstances to allow the applicant access to copies of category IX documents. However, names of all taxpayers on such documents shall be erased or obliterated so their names will remain confidential.
43 Costs of this application shall be in the cause.
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