Collier,
J.:—This
is
a
motion
by
the
plaintiff
to
compel
the
defendant
to
produce
certain
documents
for
which
privilege
is
claimed.
The
plaintiff
is
an
extra-provincial
company,
registered
under
British
Columbia
law.
It
became
the
mortgagee
of
certain
property
in
the
Victoria,
B.C.
area.
The
mortgagor
was
a
company
known
as
I.E.C.
Another
company,
Wigmar
Construction
Limited,
built,
under
contract
with
I.E.C.,
a
commercial
office
building
on
the
land.
The
plaintiff
alleges
that
Revenue
Canada
caused
sheriff's
officers
wrongfully
to
seize
and
remove
various
items,
including
fixtures,
from
the
build-
ings;
it
is
further
alleged
extensive
damage
was
done
to
the
building
in
the
course
of
the
seizure;
the
seizure
of
a
generator,
it
is
said,
resulted
in
flooding
of
the
building.
Damages
are
claimed.
The
seizure
is
alleged
to
have
been
made
pursuant
to
a
certificate
issued
against
I.E.C.
by
Revenue
Canada.
The
documents
in
question
are
a
number
of
docket
notations
made
by
four
Collection
Investigations
Officers
of
the
Ministry
of
National
Revenue.
The
privilege
claimed
is
asserted
under
subsection
241(1)
of
the
Income
Tax
Act.
Subsection
241(2)
is
of
some
assistance.
I
set
out
both
subsections:
241.
(1)
Except
as
authorized
by
this
section
no
official
or
authorized
person
shall
(a)
knowingly
communicate
or
knowingly
allow
to
be
communicated
to
any
person
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act,
or
(b)
knowingly
allow
any
person
to
inspect
or
to
have
access
to
any
book
record,
writing,
return
or
other
document
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act.
(2)
Notwithstanding
any
other
Act
or
law,
no
official
or
authorized
person
shall
be
required,
in
connection
with
any
legal
proceedings,
(a)
to
give
evidence
relating
to
any
information
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act,
or
(b)
to
produce
any
book
record,
writing,
return
or
other
document
obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act.
Counsel
for
the
defendant
supplied
me
with
copies
of
the
documents
in
issue,
and
agreed
to
my
looking
at
them
in
order
to
decide
the
question
of
privilege.
I
shall
not
describe,
in
any
detail,
the
documents
I
have
scrutinized.
I
shall
merely
summarize
generally
the
content
as
set
out
in
the
defendant's
supplementary
list
of
documents
(the
portion
where
privilege
is
claimed).
See
Exhibit
"C"
to
the
affidavit
of
W.
Gary
Wharton
or
Exhibit
"A"
to
the
affidavit
of
Gary
Rob.
It
is
obvious
a
good
deal
of
the
materials
in
the
dockets
have
to
do
with
Revenue
Canada's
claim
against
I.E.C.
and
the
seizure
by
sheriffs
on
the
instructions
of
Revenue
Canada.
Those
matters
are,
of
course,
the
genesis
of
the
present
lawsuit.
The
defendant
contends
subsection
241(1)
applies.
These
documents,
it
is
said,
were
records,
writings,
or
other
documents
"obtained
by
or
on
behalf
of
the
Minister
for
the
purposes
of
this
Act";
they
are
not,
therefore,
subject
to
disclosure
to
others,
including
the
plaintiff.
A
number
of
decisions
were
cited
on
behalf
of
the
defendant:
Glover
v.
Glover
et
al
(No.
1)
(1980),
26
O.R.
(2d)
477
(Lerner,
J.);
reversed,
29
O.R.
(2d)
392;
[1980]
C.T.C.
531
(Ont.
C.A.);
affirmed
under
citation
Glover
v.
M.N.R.,
[1981]
2
S.C.R.
561;
[1982]
C.T.C.
29
(S.C.C.);
McPherson
v.
Vang
[1967]
C.T.C.
39;
67
D.T.C.
5041
(B.C.S.C.);
R.
v.
Snider,
[1954]
S.C.R.
479;
[1954]
C.T.C.
255
(S.C.C.);
Shaw
v.
Maroun
Chater
Construction
Ltd.
(1975),
15
N.S.R.
(2d)
563
(N.S.C.C.)
The
above
cases
are,
in
my
view,
distinguishable
on
their
facts.
In
the
Glover
case,
a
plaintiff
wife
obtained
a
divorce
decree
and
custody
of
the
children.
The
husband
had
earlier
absconded
with
the
children.
The
trial
judge,
as
part
of
the
decree,
ordered
Revenue
Canada
to
provide
the
Ontario
Supreme
Court
with
particulars
of
the
addresses
of
the
respondent
husband.
The
Ontario
Court
of
Appeal
set
aside
that
part
of
the
order,
applying
the
prohibition
provisions
of
section
241.
That
decision
was
affirmed
by
the
Supreme
Court
of
Canada.
In
the
Glover
case,
the
federal
Crown
was,
of
course,
not
a
party
to
the
litigation.
The
information
sought
was,
in
effect,
being
requested
by
a
third
party
(the
wife).
The
decision
is,
to
my
mind,
accurately
set
out
in
the
[O.R.]
headnote
to
the
Ontario
Court
of
Appeal
reasons
(pp.
392-393):
A
Court
does
not
have
the
power,
in
order
to
assist
in
the
implementation
of
one
of
its
orders,
to
require
Revenue
Canada
to
reveal
confidential
information
provided
pursuant
to
the
Income
Tax
Act,
1970-71-72
(Can.),
c.63.
Accordingly,
although
the
taxpayer
has
absconded
with
the
children
after
a
custody
order
had
been
made
in
favour
of
his
wife,
and
the
wife
has
obtained
a
decree
nisi
granting
her
custody
of
the
children,
it
is
not
within
the
power
of
a
Judge
to
make
an
order
requiring
Revenue
Canada
to
provide
the
Court
with
particulars
of
the
address
of
the
respondent.
Section
241
of
the
Income
Tax
Act
is
a
comprehensive
code
designed
to
protect
confidentiality
of
all
information
given
to
the
Minister
for
the
purposes
of
the
Act,
and
precludes
disclosure
of
information
except
as
expressly
authorized
by
the
statute.
The
fact
that
the
petitioner
had
been
given
an
order
for
custody
gave
her
no
right
under
the
statute
to
secure
information
from
her
husband’s
income
tax
return
as
to
his
whereabouts,
and
the
Court
has
no
inherent
jurisdiction
to
require
such
information
to
be
divulged
in
the
face
of
an
explicit
statutory
prohibition.
Similarly,
in
the
McPherson
and
Shaw
cases,
the
information
sought
from
Revenue
Canada
officers
was
requested
by
the
plaintiffs
in
the
course
of
litigation
between
citizen
and
citizen.
The
litigation
had
nothing
to
do
with
a
claim
against
Revenue
Canada.
The
plaintiffs
were
in
the
position
of
"third
parties"
and,
in
my
view,
their
requests
came
squarely
within
the
prohibition
section.
In
this
present
litigation,
the
plaintiff
is
not
seeking
to
get
confidential
information
and
material
gathered
by
the
Minister
in
the
course
of
general
income
tax
information,
procedures,
investigations
and
matters
of
that
kind.
The
documents,
for
which
the
so-called
privilege
is
claimed,
relate
to
the
actions
taken
by
and
on
behalf
of
Revenue
Canada
which
give
rise
to
the
present
litigation
against,
for
practical
purposes,
Revenue
Canada
itself.
These
dockets
were
not,
and
are
not,
as
I
see
it,
“given
to
the
Minister
for
the
purposes
of
the
Income
Tax
Act".
They
came
into
existence
as
a
result
of
collection
proceedings
started
against
I.E.C.
(the
mortgagor)
which
allegedly
caused
the
damage
asserted
by
the
plaintiff
mortgagee.
In
that
sense,
there
is
no
breach
of
confidentiality,
or
of
the
statute.
The
documents
are
therefore
producible
to
the
plaintiff.
I
reserved
judgment
on
this
motion
an
unconscionably
long
time
ago.
I
made
the
formal
order
some
time
ago,
but
unfortunately
delayed
giving
these
reasons.
Motion
granted.
Email this Content