Access to Information Act

Section 13

Subsection 13(1)

Paragraph 13(1)(a)

Cases

3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156

all information communicated under Bermuda TIEA was protected confidential information

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 the course of dismissing the application of the applicants, Bell J addressed the exemptions claimed for correspondence or documents obtained by the Canadian competent authority under the Tax Information Exchange Agreement with Bermuda and the Income Tax Conventions with Ireland, the Netherlands and the U.S. The applicants contended, in the case of the TIEA, that such communications should have been disclosed unless it had been determined both that they had been communicated in confidence and that they transmitted information pursuant to the TIEA. In rejecting this submission, Bell J stated (at para. 98):

Article 4 of the TIEA defines “information” as follows: information means any fact, statement or record in any form whatever. Article 8 of the TIEA states that any information received by a party under this agreement shall be treated as confidential, and may only be disclosed under certain circumstances. I am of the view the ATIA and the TIEA purposely used broad language when referring to information obtained from a foreign government. I agree with the Respondent that any information obtained by the CRA pursuant to the TIEA is to be treated as confidential. In my view the Respondent correctly identified the exemption set out in paragraph 13(1)(a) of the ATIA and reasonably exercised its discretion pursuant to s. 13(2).

Locations of other summaries Wordcount
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 217
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 19 - Subsection 19(1) names of Bermuda individuals with whom CRA had spoken were protected personal information 187
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 21 - Subsection 21(1) - Paragraph 21(1)(a) government documents initially analyzing a problem and recommending a solution are exempted 219
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 24 - Subsection 24(1) taxpayer information can only be disclosed in prescribed circumstances 174

Section 16

Subsection 16(1)

Paragraph 16(1)(b)

Cases

3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156

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. Such information falls within the two (2) categories identified at s. 16(1)(b). .. [T]he Respondent reasonably exercised its discretion not to disclose the information. The negative consequences of disclosure outweigh the public interest in disclosing the information.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 13 - Subsection 13(1) - Paragraph 13(1)(a) all information communicated under Bermuda TIEA was protected confidential information 308
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 19 - Subsection 19(1) names of Bermuda individuals with whom CRA had spoken were protected personal information 187
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 21 - Subsection 21(1) - Paragraph 21(1)(a) government documents initially analyzing a problem and recommending a solution are exempted 219
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 24 - Subsection 24(1) taxpayer information can only be disclosed in prescribed circumstances 174

Section 18

Cases

Canadian Council of Christian Charities v. Minister of Finance, 99 DTC 5337, [1999] 3 CTC 123 (FCTD)

Evans J. indicated (at p. 5342) that although the words "injurious to the financial interest of the government of Canada" in s. 18(d) should not be interpreted as extending to revenue loss resulting from an increase in legitimate claims to a deduction under the Income Tax Act (that would result from disclosure of weaknesses under the existing statutory scheme), in this case the Minister was on firmer grounds in refusing to disclose documents that contained analyses by officials of various options for amending the statute.

Section 19

Subsection 19(1)

Cases

3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156

names of Bermuda individuals with whom CRA had spoken were protected personal information

The applicants sought judicial review under s. 41 of the Access to Information Act (“ATIA”), of CRA’s decision to exempt various documents from disclosure under the ATIA, including correspondence or documents obtained by the Canadian competent authority under the Tax Information Exchange Agreement with Bermuda. The applicants submitted that CRA’s redaction of the names of the individuals from Bermuda with whom CRA officials were interacting was contrary to s. 2(f) of Privacy Act, stating that personal information may be disclosed pursuant to an agreement between Canada and a foreign government, and that the TIEA was such an agreement and thereby displaced s. 19(1) of the ATIA, so as to allow full disclosure so long as the conditions of s. 13(1)(a) of the ATIA were not met. In rejecting this submission, Bell J stated (at para. 107):

Subsection 19(1) is a mandatory class exemption, whose purpose is to protect “personal information” In my opinion, the Respondent correctly applied the exemption not to disclose the personal information under s. 19(1) and was reasonable in choosing not to disclose the information under s. 19(2). …

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 13 - Subsection 13(1) - Paragraph 13(1)(a) all information communicated under Bermuda TIEA was protected confidential information 308
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 217
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 21 - Subsection 21(1) - Paragraph 21(1)(a) government documents initially analyzing a problem and recommending a solution are exempted 219
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 24 - Subsection 24(1) taxpayer information can only be disclosed in prescribed circumstances 174

Section 21

Subsection 21(1)

Paragraph 21(1)(a)

Cases

3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156

government documents initially analyzing a problem and recommending a solution are exempted

The applicants sought judicial review under s. 41 of the Access to Information Act (“ATIA”), of CRA’s decision to exempt various documents from disclosure under the ATIA. In the course of dismissing the application of the applicants, and regarding the scope of the exclusions in ss. 21(1)(a) and (b), Bell J stated (at para. 113):

Section 21 of the ATIA is a discretionary class exemption aimed at maintaining confidentially in the decision-making process of a government institution. In Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 FC 245 at para. 30, 168 F.T.R. 49 [Canadian Council], the Court acknowledges the “importance of governmental openness as a safeguard against the abuse of power, and a necessary condition for democratic accountability”. However, it notes that it is “equally clear that governments must be allowed a measure of confidentiality in the policy-making process”. The Court, in Canadian Council, goes on at paragraph 39 to state “[…] most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or (b) of subsection 21(1)”. In my opinion, the Respondent reasonably exercised its discretion not to disclose the records.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 13 - Subsection 13(1) - Paragraph 13(1)(a) all information communicated under Bermuda TIEA was protected confidential information 308
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 217
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 19 - Subsection 19(1) names of Bermuda individuals with whom CRA had spoken were protected personal information 187
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 24 - Subsection 24(1) taxpayer information can only be disclosed in prescribed circumstances 174

See Also

John Doe v. Ontario (Finance), 2014 SCC 36, [2014] 2 S.C.R. 3

exclusion for "advice or recommendations" applied to draft policy papers

The appellant, a lawyer, filed a request for information with the Ministry of Finance, pursuant to the Ontario Freedom of Information and Protection of Privacy Act ("FIPPA"), to compel the disclosure of records relating to one of the Ministry's tax amendments, "including all records which provide the reasons for not deciding to make [certain provisions] retroactive."

Rothstein J upheld the Ministry's refusal to provided various internal drafts of a policy options paper. S. 13(1) of FIPPA makes disclosure optional where it would "reveal the advice or recommendations of a public servant." The purpose of s. 13(1) is to allow public servants to provide "candid and complete" advice on policy options (paras. 43-45). Therefore, the word "advice" must be construed broadly, to include any discussions by a public servant about the range of alternative policy options, as well as any considerations to take into account by the decision maker (paras. 46-47). For similar reasons, there is no requirement that the record be communicated or intended to be communicated for s. 13(1) to apply (para. 51).

(Paragraph 21(1)(a) of Canada's Access to Information Act similarly gives the government the option not to disclose records of "advice or recommendations.")

Locations of other summaries Wordcount
Tax Topics - Statutory Interpretation - Redundancy/reading in words "advice" in "advice or recommendations" can't only entail "recommendations" 170

Section 21.1

Cases

Canadian Council of Christian Charities v. Minister of Finance, 2000 DTC 5337 (FCTD)

Before affirming a decision to withhold disclosure of certain documents, Evans J. stated (at p. 5342) with respect to the scope of the exemptions in ss.21(1)(a) and (b):

"To permit or to require the disclosure of advice given by officials either to other officials or to Ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies."

Section 24

Subsection 24(1)

Cases

3412229 Canada Inc. v. Canada (Revenue Agency), 2020 FC 1156

taxpayer information can only be disclosed in prescribed circumstances

The applicants sought judicial review under s. 41 of the Access to Information Act (“ATIA”), of CRA’s decision to exempt various documents from disclosure under the ATIA. In the course of dismissing the application of the applicants, and regarding the scope of the prohibition in s. 24(1) against the disclosure of third-party taxpayer information, Bell J stated (at paras. 119-121):

Subsection 24(1) of the ATIA is a mandatory exemption. … Slattery … [states]:

Section 241 reflects the importance of ensuring respect for a taxpayer's privacy interests, particularly as that interest relates to a taxpayer's finances. Therefore, access to financial and related information about taxpayers is to be taken seriously, and such information can only be disclosed in prescribed situations. Only in those exceptional situations does the privacy interest give way to the interest of the state.

I agree with the Respondents. There is no basis upon which to interfere with CRA’s decision regarding this exemption.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 13 - Subsection 13(1) - Paragraph 13(1)(a) all information communicated under Bermuda TIEA was protected confidential information 308
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 217
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 19 - Subsection 19(1) names of Bermuda individuals with whom CRA had spoken were protected personal information 187
Tax Topics - Other Legislation/Constitution - Federal - Access to Information Act - Section 21 - Subsection 21(1) - Paragraph 21(1)(a) government documents initially analyzing a problem and recommending a solution are exempted 219

Summers v. Canada (National Revenue), 2014 DTC 5112 [at 7267], 2014 FC 880

taxpayer not entitled to request information about tax-shelter corporation

The taxpayer participated in an alleged tax avoidance scheme involving the subscription of units in a corporation that generated dubious business losses. In the course of largely allowing the taxpayer's application under the Access to Information Act for the Minister's records on the taxpayer, O'Keefe J disallowed the taxpayer's request for the tax information of the corporation, as this would be "the same as allowing a home buyer to access a realtor's tax records" (para. 66). The taxpayer was unable to demonstrate that the corporate information was necessary to prosecute her own appeal.

Other locations for this summary
Tax Topics - Income Tax Act - Section 241 - Subsection 241(1) taxpayer not entitled to request information about tax-shelter corporation