Hydro-Québec – Federal Court of Appeal finds that an s. 231.2 requirement that essentially repeated a requirement previously rejected under s. 231.2(3) was not res judicata

Hydro-Québec (2018 FC 622) found that an s. 231.2 requirement for information concerning a large grouping of Hydro-Québec customers should not be authorized pursuant to s. 231.2(3) on the grounds inter alia that they did not constitute an “ascertainable group.” In 2019, CRA provided an essentially identical requirement to Hydro-Québec, and the Minister’s motion for authorization of this requirement pursuant to s. 231.2(3) was dismissed at 2021 FC 1438 because the matter was res judicata.

In reversing this decision, and remitting the matter to the Federal Court for a determination as to whether the s. 231.2(3) authorization should be granted, Goyette JA noted that s. 231.2(3) conferred a discretion on the Federal Court, which “indicates that this is not the usual situation of a judge applying the Act in light of the facts before the court”. Furthermore, one could envisage situations in which CRA in proper fulfilment of its audit obligations could make a subsequent demand for information that was very similar to a previous one in order to respond appropriately to new information learned during the audit.

She provided further reasons in support of allowing the Crown's appeal, but her colleagues (Boivin and LeBlanc JJA) indicated that they did not endorse those reasons.

Neal Armstrong. Summary of Canada (Canada Revenue) v. Hydro-Québec, 2023 CAF 171 under s. 231.2(3).