ACCESS TO INFORMATION |
Sherman v. M.N.R.
T-612-00
2002 FCT 586, McKeown J.
22/5/02
11 pp.
Judicial review of Minister's refusal to disclose information regarding extent to which Revenue Canada uses United States Internal Revenue Service (IRS) to collect Canadian taxes, extent to which IRS uses Revenue Canada to collect U.S. taxes--Revenue Canada initially stating information exempt from disclosure pursuant to Access to Information Act, ss. 13(1)(a), 16(1)(b), (c)--Information Commissioner dismissing applicant's complaint concerning refusal to disclose information--Under Convention Between Canada and the United States of America with respect to Taxes on Income and on Capital, Art. XXVI A, both countries agree that any information received by either one of them under Convention shall be treated as secret in same manner as information obtained under taxation laws of Canada, United States, and shall be disclosed only to persons or authorities involved in assessment, collection of or administration and enforcement in relation to taxes to which Convention applies--In accordance with Art. XXVII all information exchanged in relation to Art. XXVI A treated as secret by both Canada Customs and Revenue Agency (CCRA) and IRS, and competent authorities of each shall exchange information-- Based on correspondence with IRS, Canadian competent authority concluding release of requested information would lead to change in IRS policy resulting in unwillingness to exchange important information under Convention--S. 13(1)(a) requiring head of government department to refuse to disclose any record requested containing information obtained in confidence from government of foreign state or institution thereof--Disclosure of information not required to cause harm--Court must determine whether head of government institution erred in factual determination requested information within exemption--Three requirements to fall within s. 13(1)(a): information must be obtained (i) from (ii) foreign government (iii) in confidence--(i) Statistics integral part of information supplied under Convention as could not exist without information from United States--As IRS opposing disclosure, disclosure could jeopardize working relations between Canada, United States under Convention-- (ii) IRS institution of United States government; United States foreign state--(iii) All information exchanged under Art. XXVII relating to Art. XXVI A treated as secret by both CCRA, IRS--Information requested about information exchanged under Convention --Therefore should be treated in same manner as information exchanged under Convention i.e. as secret--Once determined information within mandatory exemption contained in s. 13(1)(a), head of government institution must refuse to disclose information unless United States consenting to disclosure or making information public (s. 13(2)), neither of which applicable--Access to Information Act, R.S.C., 1985, c. A-1, ss. 13(1)(a),(2), 16(1)(b),(c)-- 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, s. 3, Sch. IV, Art. 15), XXVII (as am. idem, Art. 16).