ARCHIVED - Info Source Bulletin Number 28

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David M. Sherman v. Minister of National Revenue

Indexed as: Sherman v. Canada (Minister of National Revenue)

File No.:	T-612-00
Reference:	2004 FC 1423
Date of decision:	October 14, 2004
Before:	Layden-Stevenson J.
Sections of ATIA / PA:	Ss. 13(1)(a), 16(1)(b) and (c) Access to Information Act (ATIA)

Abstract

• Meaning of "investigation"
• Revenue's collection actions and statistics pertaining to results of collection actions not investigative in nature
• Alleged harm to U.S. relations and, hence, to enforcement of Canadian laws not meeting injury test

Issues

1. Is the information sought subject to paras. 16(1)(b) and (c) ATIA?
2. If the exemptions under paras. 16(1)(b) and (c) do not apply, what information is and is not exempt pursuant to para. 13(1)(a)?

Facts

The applicant is a tax consultant and author. He sought disclosure of certain statistical information from the Canada Revenue Agency (CRA) regarding collection assistance between Canada and the United States (the U.S.) under the Protocol amending the Convention Between Canada and the United States of America with respect to Taxes on Income and on Capital (the Convention).

Revenue Canada's ministerial delegate, the Director of the ATIP Division, refused the request on May 10, 1999 on the basis that the requested information came within the exemptions provided in paras. 13(1)(a), and 16(1)(b) and (c) ATIA. The applicant complained to the Information Commissioner, but his complaint was dismissed.

The applicant applied for judicial review of the Minister's decision. The Federal Court Trial Division (2002 FCT 586) dismissed the application on the basis that the requested information was exempt under para. 13(1)(a). Having so determined, the applications judge did not find it necessary to consider the Minister's position with respect to paras. 16(1)(b) and (c).

The applicant appealed the decision of the Trial Division. The Federal Court of Appeal allowed the appeal ([2003] 4 F.C. 865 (C.A.); 2003 FCA 202) and concluded that the exemption under para. 13(1)(a), for the most part, could not be justified. The Court of Appeal found that the para. 13(1)(a) exemption exists only with respect to information received by Canada from the U.S. No exemption exists with respect to all information exchanged unless that information also contains information received from the U.S. that would be revealed by the disclosure of the Canadian information. Statistics, generated by the Minister, from information received from the U.S. are not covered by the exemption unless their disclosure would reveal the contents of the confidential information itself.

However, due to a misunderstanding, the Court of Appeal did not have before it the information for which the exemptions were claimed. Consequently, the Court of Appeal was not able to determine whether the nature of the information was such that it could be readily extracted from the information that was protected from disclosure. Nor could the Court of Appeal determine, notwithstanding any disclosure that might be permitted under para. 13(1)(a), whether the information is nonetheless subject to exemption from disclosure under paras. 16(1)(b) and 16(1)(c) of the Act.

The issue here is whether the information, having now been examined by this Court, is subject to any exemptions from disclosure.

Decision

The application for judicial review was allowed.

Reasons

Issue 1 - Para. 16(1)(b)

The Court remarked that the information in question must fall within the exemption. In this case, it must relate to investigative techniques or plans for specific lawful investigations. Insofar as the word "investigation" is concerned, it should be read in its ordinary and grammatical sense. Relying on the definition put forward by the Alberta Queen's Bench in Re

First Investors Corp., [1988] 4 W.W.R. 22 (Alta Q.B.)^[1], the Court remarked that there was nothing in the information before it, confidential or otherwise, that provided so much as an inkling as to investigative techniques of specific lawful investigations. Thus, the threshold that gives rise to the exercise of discretion had not been met. Moreover, it could not be said that collection actions were investigative in nature. The Convention provides for an arrangement for the collection of money from those not within the jurisdiction. While there may be some investigation related to the whereabouts of the persons involved, the information in question does not provide disclosure of such information. The statistics sought were those that provide no more and no less than the results of the collection actions. That information could not be said to be investigatory in any sense.

Para. 16(1)(c)

Referring to the basic principles underlying access to information in the possession of the government, the Court indicated that the standard is probability, not possibility or speculation. There must exist, in the evidence, an explanation establishing that the injury to the enforcement of the law is reasonably probable. Here, the evidence – both confidential and otherwise – that attempted to establish that harm to U.S. relations will result from disclosure, and consequently the enforcement of Canadian laws will suffer, was equivocal at best. It fell far short of meeting the para. 16(1)(c) threshold that the alleged injury is reasonably probable. Moreover, it is Canadian data, not U.S. data, that would be released. Hence, the generalized statements of the ministerial delegate cannot be sustained in view of the Federal Court of Appeal's determination in Sherman, supra, which limits the requested information that can be released to material based on Canadian information or U.S. statistics that do not reveal the content of confidential information. The Court was unable to conclude, on the evidence, that it could reasonably be expected that the revelation of this information will harm Canada-U.S. relations such that the U.S. will refuse to engage in further collection actions.

Issue 2 - Para. 13(1)(a)

The respondent identified the information that is exempt from disclosure in accordance with the FCA's determination in this matter. The Court identified an additional piece of information that is exempt because its disclosure would permit the applicant, by performing a simple calculation, to obtain disclosure of information that the Court of Appeal has determined is exempt.

The information will be disclosed with the exception of the information exempt from disclosure under para. 13(1)(a).

Comments

This decision has been appealed.

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