Regulation 209

After noting that "the taxpayer's privacy could be at risk in the situation where the information slip is sent to an address that is known to be incorrect," CRA stated

[W]here the issuer of the information slip has confirmation that the last known address of the taxpayer is incorrect and the issuer has taken reasonable efforts to obtain the taxpayer's correct address, the information slip should not be sent to the taxpayer in these circumstances.

Is the requirement in Regs. 209(3) and (4) for the financial institution (the “Issuer”) to obtain the express consent of the taxpayer (the “Client”) satisfied where the Client signs up for online access to a secure website on which an Issuer has electronically uploaded the tax information, so the Client can access or download their tax information slips directly? CRA stated:

[W]here the Client is duly informed and acknowledges that by accessing the information slips through a secure website in the manner facilitated by the Issuer, the Client is agreeing to receive the information slips electronically. This consent can be granted by the Client on the website itself.

…[W]here a Client signs up for online access to a secure website and downloads their tax information from the site, the express consent requirement in subsections 209(3) and (4) would be met provided the Client is duly informed and acknowledges that they are consenting to receive their information slips electronically.

Can financial institutions provide their clients with electronic copies of information slips on a secure website, in addition to the paper copies, without the written consent of their clients? After quoting Reg. 209(3), the Directorate stated:

[T]he above provision clearly says that the particular documents may be sent electronically only where the Issuer has received the taxpayer’s express consent. In our opinion, this means the Issuer cannot send the particular documents electronically without obtaining the express consent of the taxpayer, even where the Issuer has otherwise fulfilled the subsection (1) requirement by sending the paper copies separately.

[Reg.] 209(4) … defines express consent to be consent given in writing or in an electronic format. …[T]he only exception to this requirement is in subsection 209(5) …[which] permits an Issuer to provide T4 information returns electronically to a taxpayer without having received the taxpayer’s express consent provided certain criteria are met.

Would there be considered to be express consent as per Regs. 209(3) and (4), where the taxpayer provides consent to the issuer over the phone or by selecting the electronic receipt of documents option using a touch-tone phone?

CRA indicated:

• express consent is defined in Reg. 209(4) as consent “given in writing or in an electronic format”;
• for there to be express consent, the taxpayer "must be duly informed and aware that by providing consent, he or she is providing consent to receive the information slips electronically," and that the "consent given must be clear and explicit"; and
• the reference to consent given in electronic format refers "to records retained in an electronically readable format."

CRA then concluded that, in the first scenario, consent over the phone would not be in writing or in electronic format and that an audio recording of verbal consent provided over the phone would not be so considered, as the recording would not be in an electronically readable form.

Regarding the second scenario, CRA considered that the consent provided by selecting the electronic receipt of documents using a touch-tone phone would not so qualify, since the "act of selecting an option using a touch-tone phone does not provide clear and explicit consent in writing" and, furthermore, unless the consent provided in this scenario could be retained in an electronically readable format, it would not constitute consent in an electronic format.

Accordingly, neither scenario would qualify.