3412229 Canada – Federal Court confirms various exemptions from Access to Information claimed by CRA

The applicants, who were awarded damages in Ludmer regarding CRA’s conduct of its audit of their investments in an off-shore company and who had been denied full access to 8,041 out of 38,090 pages of documents that had been identified as covered by their requests under s. 6 of the Access to Information Act (“ATIA”), sought judicial review under s. 41 of the ATIA of CRA’s decision to exempt various of such documents from disclosure. In the course of dismissing their application for expanded disclosure, Bell J made a number of comments on the scope of various provisions in the ATIA exempting CRA from disclosure obligations:

• Regarding the prohibition in ATIA s. 13 against disclosure of any record obtained in confidence from a foreign government, any information obtained by the CRA pursuant to the Tax Information Exchange Agreement with Bermuda was to be treated as confidential, not just information that CRA could demonstrate had been communicated in confidence.
• The prohibition in ATIA s. 16(1)(b) of disclosure of “information relating to investigative techniques or plans for specific lawful investigations” applied to preclude disclosure of “audit techniques used by the CRA to identify or guide its auditors in applying s. 94.1 … or a risk assessment tool used to evaluate and manage the risks of an ongoing audit.”
• The names of Bermuda individuals with whom CRA had spoken were protected “personal information” under ATIA s. 19.
• Bell J agreed with a previous judicial statement that “most internal [government] documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within [the disclosure prohibition in] paragraph (a) or (b) of subsection 21(1)”.
• He also applied the finding in Slattery that the prohibition in ATIA s. 24(1) against the disclosure of personal information is mandatory.

Neal Armstrong. Summaries of 3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156 under ATIA s. 13(1)(a), s. 16(1)(b), s. 19(1), s. 21(1) and s. 24(1).