Words and Phrases - "ascertainable"

The respondent (Shopify), was a Canadian corporation providing a software platform for online e-commerce transactions. After receiving a request from the Australian Tax Office (ATO) for such information pursuant to Article 21 of the Canada-Australia Treaty (the “Convention”) a year previously, the Minister issued a requirement to Shopify pursuant to s. 231.2 of the ITA (and s. 289(3) of the ETA) for information identifying listed particulars for all merchant customers of Shopify who had revenues from sales to customers located in Australia. The Ministers sought judicial authorization of such requests pursuant to the “unnamed persons” provisions of s. 231.2(3) (and s. 289(3) of the ETA).

Régimbald J noted that, although s. 231.2(1) granted the Minister the authority to obtain information or documents regarding named persons for purposes relating to the administration or enforcement of the Act or a “listed international agreement” such as the Convention, in the case of a requirement regarding unnamed persons, s. 231.2(3)(b) instead only referred to the verification of compliance by a person or persons in a group with any obligation under the Act, i.e., there was no mention of any listed international agreement.

This was telling. With regard to “the presumption of consistent expression [which] assumes that the legislature uses language carefully and consistently so that within a statute or other legislative instrument, the same words have the same meaning and different words have different meanings” (para. 225) it seemed “highly unlikely that Parliament would refer to ‘this Act’ twice within section 231.2 and assign a different meaning to each reference” (para. 24). Similarly, regarding “the presumption against tautology [which] presumes Parliament to avoid superfluous or meaningless words; every word is presumed to have a specific role in advancing legislative purpose” (para. 225), Régimbald J indicted (at para. 228) that it seemed “unclear why Parliament would speak out of an abundance of caution in subsection 231.2(1) and not in subsection 231.2(3)”.

Furthermore, a refusal to exchange information on the basis of s. 231.2(3)(b) was consistent with Article 21 of the Convention because that treaty did not affect the rights and safeguards secured under the ITA, nor did it impose on the Minister an obligation to carry out measures at variance with Canadian law.

Although it was not necessary for him to do so, Régimbald J went on to consider whether the requirement satisfied the stipulation in s. 231.2(3)(a) that the referenced group be “ascertainable.” In this regard, he stated (at para. 354):

As long as the identities of those within the target group can be readily made exact or determined with sufficient precision by the Court and the third party, the Minister will have met the legislative precondition in paragraph 231.2(3)(a) and identified a sufficiently clear “ascertainable” group. On the evidence adduced, that is the case here.

In particular, the term “merchant” as defined by the Minister was sufficiently precise to constitute an ascertainable group, and the evidence clearly demonstrated that Shopify could identify its clients and merchants, including specifically those who made sales in Australia.

He further indicated that it would not be appropriate for the Court to exercise its residual discretion in favour of not compelling the disclosure (if disclosure had not already been precluded on the s. 231.2(3)(b) grounds). It did not matter that Shopify Ireland and Shopify Singapore might be in possession and control of some of the requested information, as such information could be accessed in Canada by Shopify itself. Furthermore, if Shopify could not provide a response within the 45 days stipulated in the requirement, the Court retained jurisdiction to extend the time to respond on motion from Shopify. Also, Shopify had not demonstrated that foreign data protection laws were an impediment to disclosure of information to CRA. The requirement would not extend to information which had been purged by Shopify in accordance with its policy of purging information on inactive accounts after two years.