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In going on to find that the Report was not protected by disclosure on the basis of the BP case, Southcott J found (at paras 65 and 66): … I agree with the Minister’s position that BP is to be read as precluding general and unrestricted access to TAWPs [tax accrual working papers] on a prospective basis, outside the context of an audit of particular issues. … … Unlike in BP, the Minister’s request for access to the Report in the present case is made in the context of an active audit of particular issues. ...

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. … ...

. … … Unlike in BP, the Minister’s request for access to the Report in the present case is made in the context of an active audit of particular issues. ...

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. ...

On January 4, 2011, the taxpayer filed a Notice of Appeal respecting losses from the Sierra Trinity transactions – but due to an error, also disputed the disallowance of the Trinity Denton losses (because new counsel were unaware of the 1994 settlement). ... In finding that the taxpayer’s appeal to the Tax Court did not constitute an “acknowledgement” of her 1988 tax liability so as to restart the running of the CLP under ss. 222(5) and (6)(b), Strickland J stated (at paras. 66-67, 76): It would … be absurd if the limitation period could be both restarted by the filing of an appeal to the Tax Court pursuant to s 222(5)(a) and (6)(b) and, at the same time, also be extended pursuant to s 222(8). This could have the result of two different limitation periods running with respect to the same matter. … [T]he Minister’s general conclusionary statement that filing an appeal with the Tax Court is an acknowledgement of debt, thereby restarting the limitation period, is not justified, intelligible or transparent and is unreasonable …. … [T]he plain meaning of “acknowledgment” requires an admission or confirmation by the person making the acknowledgment of the thing alleged, be it an admission of liability for damages, blame, responsibility or liability for a tax debt. ...

Before dismissing the application, Ahmed J stated (at paras. 45, 49): [L]egislation may be inconsistent with section 96 … if it creates financial obstacles that impose undue hardship on potential litigants …. However, in light of the Applicant’s gross earnings … I am not persuaded … that the Appeal Payment Provisions cause it undue hardship. … Trial Lawyers is distinguishable … because the Appeal Payment Provisions are remedial, not punitive. ...

The final CRA decision letter responding to the taxpayer’s request for review of the CRA decision to impose tax under s. 207.02 (including an assessment of his 2021 taxation year) indicated that excess contribution amounts had not been withdrawn following the July 20, 2021 assessment until November 2021, so that the removal of the excess contributions did not occur within a reasonable time frame – but provide no explanation as to why the $9,000 excess withdrawal in 2021 did not offset the further 2021 contributions. ... The decision provides no explanation whatsoever as to how the CRA determined that the excess contribution was only remedied on November 30, 2021 …. … I find that the decision regarding both the 2020 and 2021 taxation years is unintelligible and lacks justification and transparency. ...

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. ...

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. ...

Canada (Revenue Agency), 2020 FC 1156-- summary under Paragraph 16(1)(b) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Access to Information Act- Section 16- Subsection 16(1)- Paragraph 16(1)(b) audit techniques re application of s. 94.1, and risk assessment tool used to manage the risks of an ongoing audit, were exempted 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 rejecting the applicants’ submission that CRA’s reliance upon s. 16(1)(b) “to exempt virtually all records flowing from an audit is contrary to the wording, spirit and intent of the ATIA,” Bell J.stated (at para. 102): [T[he term “investigation”, in these circumstances, includes tax audits. … Furthermore, in this case the exempt information consists of either 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. ...