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As such, a policy that is relied on by decision-makers in the day-to-day administration of their governing legislation, cannot supersede the authority provided under the legislation …. ... In rejecting a further argument of the applicants (at para. 118) that “there was a legitimate expectation that CRA would follow their own policies and procedures as set out in the 2015 Manual,” Elliott J first stated (at para. 120): A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow: … Mavi, 2011 SCC 30 …. ... The Court may only grant appropriate procedural remedies to respond to a legitimate expectation …. ...

In this regard, she noted: (at para. 293) that respecting the “seizure in this case [of] banking information that is turned over to the CRA by Canadian financial institutions … the mechanism of the seizure is minimally intrusive, suggesting that there is an objectively lower expectation of privacy …”, (at para. 306): The fact that the Plaintiffs and other U.S. persons have the pre-existing obligation to report their banking information to the IRS under American tax laws (as well as the obligation to file the FBAR reports that are required under the U.S. ... (at para. 316) that “one of the major purposes underlying the … enactment of the Impugned Provisions was to avoid the potentially catastrophic impact that compliance with FATCA would have for Canadian financial institutions, their customers and the Canadian economy as a whole [re the imposition of 30% withholding tax]” in seeking to avoid this result “it is doubtful that Canada could have negotiated a better deal with the United States” (para. 325) under the common reporting standard as codified in ITA Part XIX, “the sharing of taxpayer information between countries has received international acceptance,” para. 337), (at para. 338) that “The reasonableness of seizures that are carried out in accordance with the Impugned Provisions is further confirmed by the fact that the banking information in issue is shared with the IRS in confidence, in accordance with the provisions of the Canada-U.S. Tax Treaty. ” She then stated (at para. 349): I also agree with the Defendants that the benefit that would accrue to those affected by the Impugned Provisions by their ability to ignore their obligations under American tax laws is outweighed by the need to protect Canada as a whole from the economic consequences of FATCA. ...

Miller ought to have documented in his records,” that the “requests do not stray into the problematic type of questions identified in Cameco and BP Canada ” e.g., an attempt “ to compel Mr. ... Regarding the required disclosure of the trust ledger accounts with the law firms, she stated (at para. 59): I do not agree that the Cameco decision establishes that a taxpayer discharges their obligation to satisfy a request that is otherwise within the scope of subsection 231.1(1) with a response that they simply do not have those documents in their possession. … [A] taxpayer is required to exercise reasonable efforts to obtain and provide to the Minister information and documentation that should be in its books and records. ...

Miller ought to have documented in his records,” that the “requests do not stray into the problematic type of questions identified in Cameco and BP Canada ” e.g., an attempt “ to compel Mr. ... Regarding the required the disclosure of the trust ledger accounts with the law firms, she stated (at para. 59): I do not agree that the Cameco decision establishes that a taxpayer discharges their obligation to satisfy a request that is otherwise within the scope of subsection 231.1(1) with a response that they simply do not have those documents in their possession. … [A] taxpayer is required to exercise reasonable efforts to obtain and provide to the Minister information and documentation that should be in its books and records. ...

McDonald J found that CGI could not rely on s. 227(10.1) in the alternative to access a refund beyond the two years, stating (at paras 64, 65 and 67): …[S]ubsection 227(10.1) … gives the Minister discretion and states that the Minister “may” assess at any time. In Canada (Attorney General) v Abraham, 2012 FCA 266, [Abraham] the FCA … concluded that this provision did not confer a statutory right to an assessment. … Here … CGI has not demonstrated a refusal on the part of the Minister to exercise her discretion.... CGI … filed its Notice of Application for Judicial Review… only a few days after the request for an assessment. ...

In declining the taxpayer’s application, Grammond J. stated (at paras. 9 – 11): One of the objectives of section 152 … is to ensure the finality of assessments by precisely setting out the circumstances in which a reassessment can be issued. To that end, Parliament has established the normal reassessment period …. ... After referring to the submission of the taxpayer that the Act should be interpreted similarly to s. 1010(2)(a) of the Quebec Taxation Act, which provided: The Minister may … make a reassessment … within three years after the day of sending of an original assessment … for a taxation year or the day on which a fiscal return for the taxation year is filed, whichever is later Grammond J stated (at para. 16): [S]ubsection 152(3.1) … does not provide that the normal reassessment period can begin at the time when the taxpayer files a tax return, if that time is after a first notice of assessment is sent. ...

. … [T]he applicant seeks disclosure to attempt to undermine CRA’s assessing position – which forms the basis for both the proposal letter and the Reassessments. … The applicant … did not provide any analysis of Baker [[1999] 2 S.C.R. 817] factors suggesting that procedural fairness at the audit stage, following a CRA proposal letter, required disclosure of the underlying CRA analysis and other documents. … [T]he real goals of the applicant’s first Notice of Application were not to remedy alleged procedural fairness concerns, but instead were to halt and attempt to control CRA’s reassessment process. … In substance, the content of the pleading is an attempt to interfere with the Minister’s statutory duty to assess. … [A]ny allegations about procedural fairness at the audit stage can be remedied at the objection or appeal stage…. ...

After noting that the reasonableness of the letters turned on a test of whether there may be considered to be “a rational connection … between the information sought and the administration and enforcement of the ITA” (para. 23), Fothergill J stated (at paras. 27, 37): [A]ssessing or re-assessing a taxpayer, even for years that fall outside the normal reassessment period, in circumstances where the taxpayer may have made any misrepresentation attributable to neglect, carelessness or willful default … is a purpose for which a request for information may be made under s 231.1 …. … I am satisfied that Dr. ... Furthermore, information in electronic form stored on servers outside Canada is in law capable of being located in Canada (eBay Canada …). ... Smith an opportunity to adduce evidence relevant to the location of the material, to equip the Court to decide whether a compliance order should be issued (Ghermezian at para 107). … For the purposes of the present proceedings, whether the information or documents are located within or outside Canada does not affect the reasonableness of the requests. ...

In granting the order and rejecting the taxpayer’s submission that the request letters were issued in connection with “a criminal investigation going on behind the scenes of which the [CRA] Auditor ha[d] no knowledge,” Russell J stated (at paras 50, 55, 58 and 59): … Offshore accounts are not, per se, illegal and it is the duty of the Minister under the Act to inquire and ensure that those with offshore accounts are meeting their tax liabilities. … If the Respondent’s position were accepted, it would mean that, given the government’s intent to deal with offshore tax offenders, every Canadian taxpayer with an offshore bank account would be immune from compliance with the audit requests made under s 231.1(1) because this could lead to criminal proceedings at some time in the future. ... See Jarvis …. It is … clear that, even if a CRA auditor has a suspicion that an offence may have occurred, a mere suspicion does not change the predominant purpose of an audit into a criminal investigation. See Jarvis… … Given that the Auditor’s evidence is that the Respondent “has not reported [the] existence of any money, securities, or assets in HSBC Swiss account(s), nor any income earned therefrom,” it is certainly possible that CRA could have begun an investigation to establish the elements of criminal tax evasion, although there is no evidence that it has. … Assessing the totality of the circumstances … I conclude that the predominant purpose of the request letters is a civil tax compliance audit and that no adversarial relationship between the state and the Respondent exists. … Ellingson … made it clear that the Jarvis test must be based upon evidence, and cannot be based upon the subjective suspicions of the taxpayer involved. … ...

Shore J concluded that the decision was reasonable, stating (at paras 20, 21, 23, 24): … [T]he CRA could not simply add NCLs to a specific taxation year without a request from the taxpayer. … … [T]he Applicant simply waited for the uncertainty regarding its balance to be resolved. ... This decision is just as valid and reasonable. … [T]he Minister did in fact … provide relief for a certain portion of the interest accrued due to the CRA’s own omission. ... Shore J also concluded that the Minister did not breach procedural fairness, stating (at para 33 and 34): … [I]f the Applicant wanted the Minister’s delegate to read the Manual prior to rendering his decision, the Applicant should have specifically mentioned the Manual. … [T]he Minister’s delegates responsible for tax relief do not necessarily have experience in audit. ...