Campbell,
J.:
The
Issue
This
case
involves
the
law
and
procedure
to
be
followed
when
a
plaintiff,
ordered
to
produce
his
income
tax
returns
on
discovery,
seeks
to
withhold
some
of
his
tax
information.
The
Facts
The
respondent,
the
president
and
sole
shareholder
of
a
wholesale
car
trading
company,
claims
damages
from
a
motor
vehicle
accident
which
occurred
in
August
of
1985.
In
his
statement
of
claim
he
avers
that
"he
has
lost
and
will
lose
time
from
his
work,
his
earning
power
and
ability
to
work
have
been
and
will
be
impaired
and
his
enjoyment
of
life
has
been
and
will
be
lessened".
On
discovery
his
counsel
agreed
to
provide
a
calculation
of
his
loss
of
income
and
to
let
the
defendants’
accountants
look
at
it
and
the
data
on
which
it
is
based.
He
agreed
to
provide
all
records
relating
to
income
and
expenses
upon
which
the
tax
returns
for
the
previous
five
years
were
based,
but
declined
to
produce
the
tax
returns
themselves.
The
defendants
moved
before
the
Master
to
compel
production
of
the
returns.
The
learned
Master
ordered
the
returns
to
be
produced,
but
ordered
that
the
plaintiff
"may
block
out
all
matters
set
out
in
the
income
tax
returns
that
are
not
related
to
the
issue
of
loss
of
income".
The
plaintiff
produced
copies
of
his
personal
income
tax
returns
for
1980
to
1985
inclusive.
A
great
deal
of
information
is
blocked
out
of
the
copies.
The
total
income
for
each
year
is
blocked
out,
as
is
information
relating
to
interest
income,
allowable
business
investment
losses,
other
deductions,
capital
losses,
and
all
information
relating
to
investment
income.
For
each
year
except
1980
the
business
and
professional
income,
or
lack
thereof,
is
fully
disclosed.
The
Principles
of
Compelling
Production
of
Tax
Returns
The
plaintiff
asks
that
the
defendant
pay
him
for
his
income
loss,
and
is
therefore
obliged
to
prove
his
income
loss
and
produce
and
submit
for
examination
the
evidence
upon
which
he
avers
it.
Although
he
has
satisfied
part
of
that
requirement
by
offering
the
records
on
which
the
income
tax
returns
are
based,
the
returns
themselves
are
cogent
evidence
of
income
and
there
is
no
reason
the
defendant
should
be
deprived
of
that
means
of
testing
the
financial
allegations
of
the
plaintiff.
The
principles
were
set
out
by
Southey,
J.
in
Janhevich
v.
Thomas
(1977),
15
O.R.
(2d)
765.
Personal
income
tax
returns
are
compellable
on
discovery
but
only
to
the
extent
they
are
relevant
to
matters
in
issue.
The
Substance
of
the
Order
The
substance
of
the
order
below
is
consistent
with
the
principle
in
Janhevich
because
it
aims
at
the
disclosure
of
relevant
information
and
the
withholding
of
irrelevant
information.
To
that
extent
the
order
is
unassailable.
The
Practicalities
of
Compelling
Production
of
Tax
Returns
In
leaving
it
entirely
up
to
the
plaintiff
to
decide
what
to
reveal
and
what
not
to
reveal,
the
learned
Master
placed
a
great
deal
of
confidence
in
the
plaintiff's
judgment
as
to
what
was
relevant
and
what
was
not
relevant,
to
the
extent
that
he
delegated
that
function
to
the
plaintiff.
While
it
may
be
appropriate
in
some
cases
to
give
the
plaintiff
an
initial
opportunity
to
tender
the
information
he
says
is
relevant
while
withholding
the
rest,
the
determination
of
relevance
is
for
the
court
and
cannot
be
delegated
to
either
party.
I
reject
the
appellant's
submission
that
the
Master
has
no
jurisdiction
to
determine
what
is
relevant
and
what
is
not
relevant.
In
deciding
whether
or
not
to
compel
the
answer
to
any
question
on
discovery
or
whether
to
compel
production
of
all
or
part
of
any
document,
a
Master
must
necessarily
determine
what
is
relevant
and
what
is
not.
While
the
parties
should
be
encouraged
in
the
first
instance
to
sort
out
as
much
as
possible
between
themselves
the
precise
and
detailed
ambit
of
disclosure,
there
must,
failing
agreement,
be
some
recourse
to
the
court
making
the
order.
To
that
extent
the
learned
Master
erred,
in
my
respectful
opinion,
in
failing
either
to
specify
precisely
what
information
should
be
disclosed
or
alternatively
to
retain
jurisdiction
to
rule
on
any
matter
upon
which
the
parties
could
not
agree.
The
1980
Returns
In
this
case
the
plaintiff
has
suppressed
his
business
and
professional
income
for
1980
while
disclosing
his
dividend
income
from
taxable
Canadian
corporations.
The
business
and
professional
income
is
obviously
relevant
to
a
claim
for
loss
of
earned
income,
while
the
dividend
income
is
not
so
clearly
relevant.
The
plaintiff
has
obviously
proceeded
on
wrong
principles
and
now
agrees
that
the
1980
business
and
professional
income
should
be
disclosed.
The
appeal
is
allowed
to
the
extent
that
it
is
ordered
that
the
plaintiff
produce
a
copy
of
his
1980
tax
return
without
any
deletions
in
relation
to
business
and
professional
income.
The
Other
Information
It
is
not
so
clear
that
all
of
the
other
personal
tax
information
is
relevant.
The
plaintiff
makes
no
claim
for
loss
of
ability
to
manage
his
investments,
but
claims
only
for
loss
of
his
"time
from
work,
his
earning
power
and
ability
to
work
.
.
.”.
The
defendant
says
that
he
thus
put
into
issue
every
detail
of
his
financial
position;
that
a
large
investment
income
would
be
relevant
because
it
would
reduce
his
motivation
to
return
to
work
as
soon
as
he
was
able.
The
plaintiff
says
that
he
has
put
in
issue
only
his
work
income,
that
not
having
made
any
claim
that
touches
on
his
investment
or
disposition
or
other
income
he
is
not
compellable
to
disclose
it.
On
the
issue
pleaded
I
cannot
see
how
the
plaintiff's
income,
other
than
his
income
from
his
work,
has
any
relevance.
The
only
income
pleaded
is
the
income
from
his
work
and
therefore
it
is
the
only
income
that
is
relevant
to
the
issues
pleaded.
Conclusion
Although
I
think
the
learned
Master
erred
in
leaving
it
completely
up
to
the
plaintiff
to
decide
what
to
delete,
an
examination
of
the
returns
produced
by
the
plaintiff
show
that
the
deleted
information
is
not
relevant
to
the
issues
as
pleaded.
The
appeal
is
dismissed
except
to
the
extent
that
the
1980
business
and
professional
income
figure
must
be
produced.
Costs
in
the
cause.
Appeal
allowed
in
part.
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