Digests

Sherman v. M.N.R.

T-612-00

2004 FC 1423, Layden-Stevenson J.

14/10/04

13 pp.

Judicial review of refusal by Director of the Access to Information and Privacy Division, Revenue Canada (ministerial delegate) of applicant's request for disclosure of certain statistical information from Canada Revenue Agency (CRA) regarding collection assistance under paragraph 1 of Art. XXVII relating to Art. XXVI A of Protocol amending the Convention Between Canada and the United States of America (U.S.) with respect to Taxes on Income and on Capital (Convention)--Purpose of Art. XXVI A to enable Canada and U.S. Internal Revenue Service to lend assistance to each other in collection of taxes--Ministerial delegate refused request on ground requested information falling within exemptions in Access to Information Act (Act), ss. 13(1)(a), 16(1)(b), (c)--Applicant's complaint to Information Commissioner dismissed--Applied for judicial review of ministerial delegate's decision but Federal Court Trial Division dismissed application on basis requested information exempt under Act, s. 13(1)(a)--Federal Court of Appeal allowed appeal (Sherman v. M.N.R., [2003] 4 F.C. 865 (C.A.)) and concluded exemption under s. 13(1)(a) not justified as matter of law--Court stated exemption exists only with respect to information received by Canada from U.S., not to all information exchanged unless information also containing information received from U.S. that would be revealed by disclosure of Canadian information--Court also found that statistics generated by Minister from information received from U.S. not covered by exemption unless disclosure would reveal contents of confidential information itself--However, due to misunderstanding, Court of Appeal not having information for which exemptions claimed and therefore not able to determine whether nature of information such that could be readily extracted from information protected from disclosure--Court also unable to determine whether information subject to exemption under Act, s. 16(1)(b), (c)-- S. 16(1)(b), (c) providing that head of government institution has discretion to refuse disclosure of requested information under Act if information relating to investigative techniques or plans for specific lawful investigations or if disclosure of information could reasonably be expected to be injurious to enforcement of any law of Canada--Discretion only relevant if information in question falling within exemption-- "Investigation" in s. 16(1)(b) should be read in ordinary and grammatical sense--Nothing in information requested relating whatsoever to investigative techniques of specific lawful investigations and therefore threshold resulting in exercise of discretion not met--Statistics sought simply results of collection actions and collection actions not investigative in nature--Purpose of Act to provide public with right of access to information in records under government control-- Exceptions to right of access should be limited, specific; entitlement to exemption must be established on balance of probabilities--For purposes of Act, s. 16(1)(c), evidence required to establish that injury to enforcement of law reasonably probable--In present case, evidence attempting to establish that disclosure would result in harm to U.S. relations and consequently enforcement of Canadian law would suffer, equivocal at best--Evidence falling far short of meeting threshold on basis that alleged injury reasonably probable-- Moreover, Canadian data, not U.S. data would be released-- Evidence not showing reasonably expected that disclosure of information would harm Canada-U.S. relations such that U.S. would refuse to engage in further collection actions-- Application allowed--Convention Between Canada and the United States of America with respect to Taxes on Income and on Capital, being Schedule I of the Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20, Arts. XXVI A (as enacted by S.C. 1995, c. 34, Sch. IV, Art. 15), XXVII (as am. idem, Art. 16)--Access to Information Act, R.S.C., 1985, c. A-1, ss. 13(1)(a), 16(1)(b),(c).