T-2144-97
The Canadian Council of Christian Charities (Applicant)
v.
The Minister of Finance (Respondent)
Indexed as: Canadian Council of Christian Charitiesv. Canada (Minister of Finance) (T.D.)
Trial Division, Evans J."Toronto, December 8, 1998 and May 19, 1999.
Access to information — Application for review pursuant to Act, s. 41 of Minister's refusal to disclose more of material requested relating to interpretation of —religious order—, term defining scope of entitlement to clergy residence deduction in Income Tax Act, s. 8(1)(c) — Standard of review — (i) Court required to review Minister's decisions on standard of correctness — (ii) Statutory exemptions from general duty to disclose information to be construed narrowly — (iii) Burden on government to establish refusal to disclose legally authorized by exemption on which relies — (iv) If exemption mandatory, Court need only decide if information within scope of statutory exemption; if permissive, Court must also decide whether discretion lawfully exercised — (v) S. 25 requiring disclosure of any portion of record not containing exempted information that may be severed — Exemptions — (i) S. 18(1)(d) exemption from disclosure of information which could reasonably be expected to be materially —injurious to financial interest of Government of Canada— not including revenue loss resulting from increase in legitimate claims to deduction — If disclosure encouraging taxpayers to claim deduction to which entitled, resulting benefit not —undue— within s. 18(d) — Documents containing analyses of options for amending statute exempt as relating to —contemplated change in . . . taxes— — (ii) Most internal documents identifying problem, canvassing solutions, ending with specific recommendations for change likely exempt from disclosure under s. 21(1)(a) (advice developed by government officials), 21(1)(b) (accounts of consultations, deliberations) — Act leaving to Minister's discretion, subject to review by Information Commissioner, decision as to which documents falling within these paragraphs could be disclosed without damage to effectiveness of government — (iii) S. 24(1), prohibiting release of information relating to taxpayer obtained pursuant to Act, but not including information not revealing taxpayer's identity — Whether disclosure of names of organizations employing taxpayers revealing identity of taxpayer depending on circumstance, including size of organization, number of employees, extent to which locally based — S. 23 authorizing Minister to withhold information subject to solicitor-client privilege — Legal opinion provided 15 years ago by Department of Justice within exemption.
Income tax — Income calculation — Deductions — S. 8(1)(c) clergy residence deduction — Access to Information Act request regarding interpretation of —religious order—, one of terms defining scope of entitlement to deduction — MNR refusing access as disclosure could injure Government's financial interests by encouraging others to claim deduction — Also concerned taxpayers' identity not be revealed — —Injurious to financial interest of Government— in Access to Information Act, s. 18(d) not including revenue lost due to increase in legitimate claims for Income Tax deductions — If clergy residence deduction inadequately drafted for contemporary conditions, up to Finance Department to propose statutory reform.
This was an application for a review pursuant to Access to Information Act, section 41 of the Minister's refusal to disclose more of the material requested by the applicant. The applicant requested disclosure of all materials relating to the interpretation of "religious order", one of the terms defining the scope of the entitlement to the "clergy residence deduction" in Income Tax Act , paragraph 8(1)(c). The Minister relied on the exemptions contained in Access to Information Act, paragraph 18(d), which permits refusal to disclose information which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada, including a contemplated change in taxes, duties or other revenue source. The Minister submitted that if the documents requested were disclosed, the amount of revenue lost as a result of claims for this deduction would increase by encouraging individuals who might not otherwise have realized that the deduction may apply to a wider range of individuals than previously conceded and may allow taxpayers to present their affairs in a way that enables them to claim a deduction for years past. Other information was withheld under paragraph 21(1)(a) as constituting advice developed by departmental officials for decision-making purposes, and under paragraph 21(1)(b) as containing accounts of consultations and deliberations among governmental officials about paragraph 8(1)(c). The Minister also relied upon subsection 24(1), which prohibits the release of information relating to taxpayers that has been obtained by the Minister pursuant to the Act, but does not include information that "does not directly or indirectly reveal the identity of the taxpayer to whom it relates". The applicant's access to information request extended to information about organizations, members of which had claimed the clergy residence deduction. The Minister was willing to provide information about the incidence of claims, but not the names of organizations that employed taxpayers who had claimed the deduction or the position occupied by the claimants, on the ground that many of these organizations were small, or local, and that disclosure might indirectly reveal the identity of the taxpayers who had claimed the deduction. The Minister also relied on the exemption in section 23 which authorizes the head of a government institution to withhold from disclosure information that is the subject of solicitor-client privilege.
Held, the application should be granted with respect to withheld material that did not fall within the scope of any of the statutory exemptions.
It was necessary to consider the standard of review. (1) The decision reviewed under section 41 is the Minister's. Heads of government institutions are apt to apply the Act in a manner that gives maximum protection from disclosure for information in their possession. Accordingly, there was no room for the kind of judicial deference to the Minister's interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the Minister, the power to determine whether information should be disclosed. While the Court is required to review the Minister's decisions according to a standard of correctness, it is appropriate to have regard to the recommendations of the Information Commissioner, who has acquired an expertise in the administration of the Act. (2) The statutory exemptions from the general duty to disclose information are to be construed narrowly so as not to derogate more than is required by the Act from its overall purpose, which is to give legal expression to the general principle that government information should be available to the public. (3) Section 48 imposes on the government the burden of establishing that the refusal to disclose a document is legally authorized by the exemption on which it relies. (4) If the exemption is mandatory, the Court needs only to decide if the information falls within the scope of the statutory exemption. If the exemption is permissive, the Court must also decide whether the head of the government institution lawfully exercised the discretion not to disclose it, based on administrative law grounds in light of the overall purpose of the statute and of the particular exemption. (5) Section 25 requires the head of the institution to disclose any portion of a record that does not contain exempted information and can reasonably be severed from the part that does.
As to the exemptions, the words "injurious to the financial interest of the Government of Canada" in paragraph 18(d ) should not be interpreted as including revenue loss resulting from an increase in legitimate claims to deductions under the Income Tax Act. If the clergy residence deduction is not satisfactorily drafted for contemporary conditions, the Department of Finance should propose statutory reforms to deal with the problem. Legal frailty cannot be hidden behind a cloud of secrecy that it was the general purpose of the Access to Information Act to dispel. Similarly, if disclosure encourages taxpayers to claim the benefit of a deduction to which they are entitled, the resulting benefit to them will not be "undue" within paragraph 18(d ). However, documents that contained analyses of various options for amending the statute were exempt under subparagraph 18(d)(iii) on the ground that the information therein related to a "contemplated change in . . . taxes". Disclosure of such information may be refused if it would cause a loss of revenue to the government or would unduly benefit particular individuals.
To permit or require the disclosure of advice given by officials and the disclosure of confidential deliberation within the public service on policy options, would erode the government's ability to formulate and to justify its policies. On the other hand, democratic principles require that the public be enabled to participate as widely as possible in influencing policy development. 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 21(1)(a) or (b). The Act thus leaves to the heads of government institutions, subject to review and recommendations by the Information Commissioner, the discretion to decide which of the broad range of documents that fall within these paragraphs can be disclosed without damage to the effectiveness of government. The Court plays a very limited role in overseeing the exercise of this discretion.
Whether disclosure of the name of the employer of a person who had claimed the deduction is capable of revealing the identity of the taxpayer depends on the particular circumstances, including the size of the organization, the number of its employees and the extent to which it is locally based. It is important to maintain taxpayer confidentiality as a matter of fairness to individuals and for the efficient administration of the Income Tax Act. If taxpayers become concerned about Revenue Canada's ability to keep confidential information about their financial affairs, they are likely to be less forthcoming in providing information that Revenue Canada requires for the expeditious and accurate assessment of tax liability. Most of the employer organizations herein were of such a size or geographic definition that there was a real risk that the identities of the taxpayer claimants could be inferred from the names of the employers and of the position in which they were employed.
The scope of the section 23 exemption was governed by the common law of legal privilege. A legal opinion provided, on request, by the Department of Justice, was within the exemption established by section 23. Even though the opinion was given 15 years ago, it dealt with issues that were of continuing vitality and hence there was no obvious error in the decision not to disclose it in the exercise of discretion.
| statutes and regulations judicially considered |
| Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 18, 21, 23, 24, 25, 41, 48. |
| Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, ss. 8(1)(c)(i),(ii), 241(1) (as am. by S.C. 1994, c. 7, Sch. VIII, s. 137), (10) (as am. idem). |
| cases judicially considered |
| referred to: |
| John Doe v. Ontario (Information & Privacy Commissioner) (1993), 13 O.R. (3d) 767; 106 D.L.R. (4th) 140; 19 Admin. L.R. (2d) 251; 64 O.A.C. 248 (Div. Ct.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; (1995), 102 F.T.R. 30 (T.D.). |
APPLICATION for a review pursuant to Access to Information Act, section 41 of the Minister's refusal to disclose more of the material requested by the applicant relating to the interpretation of "religious order", one of the terms describing the scope of entitlement to the "clergy residence" deduction provided in Income Tax Act , subsection 8(1). Application granted with respect to material that did not fall within the scope of any of the statutory exemptions.
| appearances: |
| Robert Brendan Bissell for applicant. |
| Robert H. Jaworski for respondent. |
| solicitors of record: |
| Fraser Milner, Toronto, for applicant. |
| Deputy Attorney General of Canada for respondent. |
The following are the reasons for order rendered in English by
Evans J.:
| A. INTRODUCTION |
[1]The Canadian Council of Christian Charities is a charitable organization that represents more than a thousand Christian charities across Canada. Their members comprise approximately 3.5 million individual Christians of all denominations. One of the Council's principal purposes is to provide assistance, guidance and professional accounting and tax expertise to the organizations that it represents, many of which are small.
[2]The Council has been actively concerned in recent years with the provision in the Income Tax Act [R.S.C., 1985 (5th Supp.), c. 1] known as the "clergy residence" deduction, and has represented its members when dealing with Revenue Canada over their entitlement to claim this deduction. The Council is of the opinion that Revenue Canada has taken a narrower view of the range of persons eligible to claim this deduction than, on its proper interpretation, the Act provides. Indeed, there are a number of cases at various stages of the assessment and appeal processes challenging Revenue Canada's position, in some of which taxpayers have already won notable successes.
[3]No doubt with this litigation in mind, and the possibility that statutory reforms may be under consideration, the Council made a request to the Minister of Finance under the Access to Information Act, R.S.C., 1985, c. A-1 for the disclosure of all materials in the possession of the Department relating to the interpretation of "religious order", one of the terms defining the scope of the entitlement to the "clergy residence" deduction. The Council has assisted and acted as advocate for constituent members who maintain that they are "religious orders" within the meaning of paragraph 8(1)(c ) of the Income Tax Act.
[4]The Minister identified more than 150 pages of material falling within this request, but advised the Council that nearly all of it would be withheld under specified statutory exemptions. On receiving a complaint by the Council, the Information Commissioner investigated the Minister's decision not to disclose, and recommended that some of the documents should be disclosed to the Council, either in whole or in part.
[5]The Minister acted on these recommendations. The Commissioner stated in his report to the Council that he was satisfied that the Minister had disclosed all the material covered by the Council's request that it was proper to disclose. Still dissatisfied with the Minister's refusal to disclose more of the material requested, the Council applied to the Court for a review of this decision pursuant to section 41 of the Access to Information Act.
[6]In January 1998, the Council brought a motion for an order that the Minister disclose to its counsel, on a confidential basis, the documents in question so that he could prepare for the application for review. Rouleau J. dismissed the motion, holding that counsel could adequately make submissions on the interpretation of the relevant provisions of the Act, and the approach to be taken by the Court to them, without seeing the documents themselves. He ordered that they be placed in a sealed envelope to be opened by the judge when examining them to determine whether the Minister had discharged the onus imposed by section 48 of proving that the refusal to disclose is justified in law.
[7]Accordingly, I heard helpful submissions from both parties on the factual background to the dispute, and on the applicable legal principles and statutory provisions. Following these generic submissions, I examined the documents with the assistance of counsel for the Minister, but in the absence of counsel for the applicant.
| B. THE STATUTORY FRAMEWORK |
| (i) Income Tax Act |
[8]The deduction in which the Council is interested is contained in the following provisions:
8. (1) . . .
| (c) where the taxpayer is a member of the clergy or of a religious order or a regular minister of a religious denomination, and is in charge of or ministering to a diocese, parish or congregation, or engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination, an amount equal to |
| (i) the value of the residence or other living accommodation occupied by the taxpayer in the course of or by virtue of the taxpayer's office or employment as such a member or minister so in charge of or ministering to a diocese, parish or congregation, or so engaged in such administrative service, to the extent that that value is included in computing the taxpayer's income for the year by virtue of section 6, or |
| (ii) rent paid by the taxpayer for a residence or other living accommodation rented and occupied by the taxpayer, or the fair rental value of a residence or other living accommodation owned and occupied by the taxpayer, during the year but not, in either case, exceeding the taxpayer's remuneration from the taxpayer's office or employment as described in subparagraph (i); [underlining added]. |
[9]The Access to Information Act, subsection 24(1) prohibits the release of information, the disclosure of which is forbidden by any of the statutory provisions listed in Schedule II of the Act. Section 241 [as am. by S.C. 1994, c. 7, Sch. VIII, s. 137] of the Income Tax Act is included in the Schedule.
241. (1) Except as authorized by this section, no official shall
| (a) knowingly provide, or knowingly allow to be provided, to any person any taxpayer information; |
| (b) knowingly allow any person to have access to any taxpayer information; . . . |
. . .
(10) . . .
| "taxpayer information" means information of any kind and in any form relating to one or more taxpayers that is |
| (a) obtained by or on behalf of the Minister for the purposes of this Act, or |
| (b) prepared from information referred to in paragraph (a), |
but does not include information that does not directly or indirectly reveal the identity of the taxpayer to whom it relates. [Underlining added.]
| (ii) Access to Information Act |
[10]The Minister has relied on the following provisions, singly or in combination, to justify the non-disclosure of documents requested by the applicant.
18. The head of a government institution may refuse to disclose any record requested under this Act that contains
. . .
| (d) information the disclosure of which could reasonably be expected to be materially injurious to the financial interests of the Government of Canada or the ability of the Government of Canada to manage the economy of Canada or could reasonably be expected to result in an undue benefit to any person, including, without restricting the generality of the foregoing, any such information relating to |
. . .
| (iii) a contemplated change in tariff rates, taxes, duties or any other revenue source, |
. . .
21. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains
| (a) advice or recommendations developed by or for a government institution or a minister of the Crown, |
| (b) an account of consultations or deliberations involving officers or employees of a government institution, a minister of the Crown or the staff of a minister of the Crown, |
. . .
23. The head of a government institution may refuse to disclose any record requested under this Act that contains information that is subject to solicitor-client privilege.
24. (1) The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provision set out in Schedule II.
. . .
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material. [Underlining added.]
| C. THE APPLICABLE LEGAL PRINCIPLES |
[11]This appears to be the first case in which the Court has been required to consider the scope of the exemptions from disclosure contained in paragraphs 18(d) and 21(1)(a) of the Access to Information Act. I approach this task within the framework of the well-established legal principles that inform the conduct of section 41 reviews, as they relate to the facts of this case.
[12]First, it is necessary to consider the standard of review applicable to the Minister's refusal to disclose the information in question. Unlike some analogous provincial statutes, the federal Access to Information Act does not give to the Information Commissioner of Canada the statutory authority to decide whether a particular document should be disclosed. Instead, it confers on the Information Commissioner the power to investigate refusals to disclose and to make recommendations to the head of the government institution, in this case, the Minister of Finance. Since the Commissioner's recommendations are not legally binding the decision reviewed by the Federal Court under section 41 is the Minister's, not the Information Commissioner's.
[13]Heads of government institutions are apt to equate the public interest with the reasons for not disclosing information, and thus to interpret and apply the Act in a manner that gives maximum protection from disclosure for information in their possession. Accordingly, there is no room for the kind of judicial deference to the Minister's interpretation or application of the statutory exemptions that courts have sometimes shown to decisions made by information and privacy commissioners operating under provincial legislation that confers on them, not the Minister, the power to determine whether information should be disclosed: see, for example, John Doe v. Ontario (Information & Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Div. Ct.).
[14]However, while the Court is required to review the Minister's decisions on a standard of correctness it is certainly appropriate to have regard to the report and recommendations of the Information Commissioner. The Commissioner is independent of the Executive and reports directly to Parliament, and has acquired an expertise in the administration of the Act as a result of the experience gained in the investigation of complaints of refusals to disclose.
[15]Second, the statutory exemptions from the general duty to disclose information are to be construed narrowly so as not to derogate more than is clearly required by the Act from its overall purpose, which is to give legal expression to the general principle that government information should be available to the public: see subsection 2(1).
[16]Third, for a similar reason section 48 imposes on the government the burden of establishing that the refusal to disclose a document, or part of a document, is legally authorized by the exemption on which it relies. Thus, in respect of the exemption claimed under paragraph 18(d) the Court will require clear proof that the Minister has reasonable grounds to believe that there was a reasonable expectation of probable harm of the prescribed kinds if the documents in question were disclosed.
[17]Fourth, the nature of the decision to be made by the Court on review depends on the particular exemptions relied upon. Some, such as that contained in section 24, are mandatory, so that the Court is called upon to decide only if the information falls within the scope of the statutory exemption. If it does, that is the end of the matter, and the information must not be disclosed. If it does not, then the Court will order its disclosure: Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.), at page 280.
[18]Other exemptions, however, are permissive and provide that the head of a government institution may refuse to disclose information of a given description: paragraphs 18(d), subsection 21(1) and section 23 are of this kind. When reviewing decisions made under permissive provisions, the Court must decide not only whether the information falls within that described in the relevant provision, but also, if it does, whether the head of the government institution lawfully exercised the discretion not to disclose it.
[19]However, when reviewing the exercise of discretion under a permissive exemption the Court is not to decide how it would have exercised the discretion, but merely to review on administrative law grounds the legality of the exercise of that discretion by the Minister, in light of the overall purpose of the statute and of the particular exemption. Accordingly, if the Court concludes that the discretion was exercised unlawfully, the normal remedy will be to remit the matter to the head of the government institution for a re-determination in accordance with the Court's reasons, not an order by the Court that the document be disclosed: Canadian Jewish Congress, supra, at pages 280-282.
[20]Fifth, in order to ensure that public access to information is restricted as little as possible, section 25 requires the head of the institution to disclose any portion of a record that does not contain exempted information and can reasonably be severed from the part that does.
| D. THE EXEMPTIONS CLAIMED |
| (i) Paragraph 18(d) |
[21]This provision was relied on by the Minister to justify the non-disclosure of several of the records covered by the Council's request but, for the documents still withheld, only in combination with subsection 21(1). I have found that the non-disclosure of the documents in question can be justified under subsection 21(1), and the parts of them that should be disclosed are clearly not covered by paragraph 18(d). Nonetheless, I shall set out the paragraph 18(d) argument made in this case, and my response to it.
[22]The Information Commissioner concurred with the opinion of the Minister that paragraph 18(d) was applicable, on the ground that disclosure would be materially injurious to the financial interests of the Government of Canada, because it would cause a significant loss of tax revenue. The Commissioner was also satisfied that the discretion to withhold the exempted documents had been properly exercised.
[23]In his submissions counsel relied on the affidavit of Mr. Michel Maher, a tax policy officer with the Department of Finance, who stated that there had been a steady increase in the revenue lost as a result of a growing number of claims made for the "clergy residence" deduction, despite the virtual disappearance of the social conditions that had led to its original enactment, namely the regular use, especially in rural parishes, of the minister's house as the unofficial church office or meeting room. Mr. Maher stated that, if the documents requested were disclosed, the amount of revenue lost as a result of claims for this deduction would increase further to up to $20 million a year.
[24]The argument on behalf of the Minister is that the disputed documents, which contain legal and policy analyses of the deduction prepared by officials within the Department, will encourage claims by individuals who might not otherwise have realized that, properly interpreted, the deduction may apply to a wider range of persons than Revenue Canada has so far been prepared to concede. Moreover, on the basis of these analyses taxpayers may be able to present their affairs in a way that enables them to claim the deduction for years past.
[25]I should make clear at the outset that this argument was based on an apprehended increase in the number of legitimate claims under paragraph 8(1)(c) of the Income Tax Act, not on a fear that disclosure would facilitate tax evasion by the making of false claims to which the claimants were not in law entitled.
[26]I find it difficult to accept that it was the intention of Parliament to exempt from the general right of public access to information in the possession of the government materials that would enable individuals to claim deductions from their income tax liability to which they are legally entitled.
[27]I would therefore not interpret the words "injurious to the financial interest of the Government of Canada" to include revenue loss resulting from an increase in the legitimate claims to a deduction under the Income Tax Act . If the "clergy residence" deduction is not satisfactorily drafted for contemporary conditions, it is the responsibility of the Department of Finance to propose statutory reforms to deal with the problem. The Department cannot attempt to hide the legal frailty of its position behind a cloud of secrecy that it was the general purpose of the Access to Information Act to dispel.
[28]Similarly, if disclosure encourages taxpayers to claim the benefit of a deduction to which they are entitled, I cannot accept that the resulting benefit to them will be "undue" within the meaning of paragraph 18(d ).
[29]However, the Minister is on firmer ground in refusing to disclose documents that contain analyses by officials of various options for amending the statute, on the ground that the information in these documents related to "a contemplated change in . . . taxes", and thus was exempt under subparagraph 18(d )(iii). Disclosure of information of this description may properly be refused if it would cause a loss of revenue to the government or would unduly benefit particular individuals.
| (ii) Paragraphs 21(1)(a) and (b) |
[30]Despite the importance of governmental openness as a safeguard against the abuse of power, and as a necessary condition for democratic accountability, it is equally clear that governments must be allowed a measure of confidentiality in the policy-making process. 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.
[31]It would be an intolerable burden to force ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.
[32]On the other hand, of course, democratic principles require that the public, and this often means the representatives of sectional interests, are enabled to participate as widely as possible in influencing policy development. Without a degree of openness on the part of government about its thinking on public policy issues, and without access to relevant information in the possession of government, the effectiveness of public participation will inevitably be curbed.
[33]The Information Commissioner's report simply states that some of the information withheld in this case "constitutes advice developed by departmental officials for decision-making purposes" and is thus exempt under subsection 21(1)(a ). Other information "contains accounts of consultations and deliberations among governmental officials in FIN and Revenue Canada about the 8(1)(c ) provisions of the Income Tax Act", and is thus exempt under paragraph 21(1)(b ). Again, the Commissioner adds that he is satisfied that the discretion to withhold information falling within these paragraphs was exercised properly.
[34]One point of principle about the scope of subsection 21(1) on which the parties advanced different views at the hearing was whether it exempted internal documents that revealed that officials had identified a problem with the clergy residence deduction as presently defined in paragraph 8(1)(c) of the Income Tax Act.
[35]Counsel for the applicant took the position that it did not. He submitted that it was important for interested members of the public and organizations to have access to this information so that they could make submissions to the government on whether, in their opinion, a problem existed, and if it did, how it should be solved.
[36]Since citizen participation is more likely to be effective if it comes early in the policy-making process, subsection 21(1) should not be given a broader interpretation than its wording clearly requires. A central purpose of the Access to Information Act is, after all, to enhance the democratic foundations of government, and accountability.
[37]Counsel for the Minister, however, took the view that it was generally impossible to disentangle the identification of a problem with the legislation from recommendations for reform and advice on policy options for dealing with it. Even when not stated expressly, advice and recommendations might be implicit in the mere identification of something as a problem.
[38]Moreover, an internal document written by one official, and communicated to another, that identifies a problem with the legislation would fall within paragraph 21(1)(b) as "an account of consultations or deliberations involving officers or employees of a government institution".
[39]It is difficult to avoid the conclusion that the combined effect of paragraphs 21(1)(a) and (b) is to exempt from disclosure under the Act a very wide range of documents generated in the internal policy processes of a government institution. Documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within these broad terms. However, 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).
[40]The Act thus leaves to the heads of government institutions, subject to review and recommendations by the Information Commissioner, the discretion to decide which of the broad range of documents that fall within these paragraphs can be disclosed without damage to the effectiveness of government. There is very little role for the Court in overseeing the exercise of this discretion.
| (iii) Subsection 24(1) |
[41]The third statutory exemption relied on by the Minister in this case prohibits the disclosure of information in contravention of any of the statutory provisions included in Schedule II of the Access to Information Act. Schedule II includes section 241 of the Income Tax Act.
[42]Subsection 241(1) forbids the knowing disclosure by officials of any "taxpayer information". This term is defined in subsection 241(10) as information relating to taxpayers that has been obtained by the Minister pursuant to the Act but, significantly for present purposes, does not include information that "does not directly or indirectly reveal the identity of the taxpayer to whom it relates".
[43]The Council's access to information request included information about the organizations, members of which had claimed the clergy residence deduction. The Minister was willing to provide information about the incidence of claims, but not the names of the organizations that employed taxpayers who had claimed the deduction or, in some cases, the position occupied by the claimants, on the ground that many of these organizations are small, or local, and that disclosure might well indirectly reveal the identity of the taxpayers who had claimed the deduction.
[44]The Information Commissioner reported that subsection 24(1) applied:
The remaining exempted records and portions of documents contain taxpayer specific information regarding a company other than your client.
[45]As a matter of principle, it seems clear to me that disclosing the name of the employer of a person who had claimed the deduction is capable of revealing the identity of the taxpayer concerned. Whether this is in fact the case must depend on the particular circumstances, including the size of the organization, the number of its employees and the extent to which it is locally based.
[46]I would only add that maintaining the strict confidentiality of taxpayer information is important, not only as a matter of fairness to individuals who are required by law to supply information to the Minister, but also for the effect of disclosure on the efficient administration of the Income Tax Act. If taxpayers become concerned about Revenue Canada's ability to keep confidential information about their financial affairs, they are likely to be less forthcoming in providing information that Revenue Canada requires for the expeditious and accurate assessment of tax liability.
| (iv) Section 23 |
[47]The fourth and final exemption relied on by the Minister relates to solicitor-client privilege. Section 23 authorizes the head of a government institution to withhold from disclosure information that is the subject of solicitor-client privilege. The parties agree that the scope of this exemption is governed by the common law of legal privilege. Counsel for the Minister requested only that, when examining the documents for which this privilege is claimed, I satisfy myself that it does indeed qualify, in view of earlier claims for solicitor-client privilege that the Minister had made, but subsequently retracted as unjustified.
[48]The Information Commissioner upheld the non-disclosure of the documents for which an exemption under section 23 was claimed on the ground that:
The information is of a confidential nature and the communications were developed as the result of a request for legal advice.
He was also satisfied that they had been withheld in the proper exercise of discretion.
| E. THE DOCUMENTS EXAMINED |
| (i) Paragraph 18(d) |
[49]This paragraph was not relied on alone to justify the non-disclosure of any of the documents that the Minister has decided not to produce. Since I have found that the non-disclosure of these documents, or parts of them, is justified under subsection 21(1), it is not necessary for me to decide whether the claim under paragraph 18(d) was also properly made.
| (ii) Paragraphs 21(1)(a) and (b) |
[50]The Minister relies on one or both of these paragraphs with respect to the material on pages 1-77 and 149-150 of the bundle of documents that I examined. On examining them I am satisfied that, with three exceptions, the material that has been withheld falls within the exemptions described in these paragraphs.
[51]The exceptions comprise the following material which seems to me to be clearly factual in nature, and thus not to fall within paragraph 21(1)(a) or (b).
a) page 24, the first full paragraph: this simply describes a well-known social change that has occurred in Canada that is of obvious significance to an understanding of paragraph 8(1)(c). Paragraph 18(d) is clearly not relevant to this material.
b) page 69, with the exception of the last paragraph and the last sentence of the penultimate paragraph: this page describes the results of certain tax appeals, and contains a statement of the intent attributed to Parliament in enacting paragraph 8(1)(c).
c) page 74, last paragraph: this describes the role of the Council and the strategy that it has pursued on this issue.
[52]To the extent that I have indicated, therefore, this material was not within the categories described in these paragraphs and the decision not to disclose it was wrong.
[53]Finally, in light of the affidavit of Mr. Maher, the report of the Information Commissioner and of my examination of the documents, I have no reason for believing that the discretion to withhold the information that falls within these paragraphs has been exercised unlawfully.
| (iii) Section 24 |
[54]Pages 82-97, for which this exception is invoked, contain two categories of information. The Minister contends that both must be withheld as "taxpayer information" as defined by subsection 241(10) of the Income Tax Act .
[55]The first category comprises a summary of questionable claims made in one year for the clergy residence deduction, and includes the number by which the taxpayer claimants are identified, claimants' salary levels, and the names of the organizations that employed them. In some cases, the capacity in which a claimant is employed is also included in the information that has been withheld. The second category is a list of the names of organizations that have been accepted as religious orders for the purpose of paragraph 8(1)(c) of the Income Tax Act, and a description of their activities.
[56]As to the first category, I have been assisted by information contained in the documents about the number of employees of some of the organizations for which claimants worked. I am satisfied that most are of such a size or geographical definition that there is a real risk that the identities of taxpayer claimants might be inferred from the disclosure of the names of their employers and of the position in which they were employed.
[57]Numerical information was not available with respect to all of the organizations that employed claimants in the year in question. However, on the basis of the numerical information that I had about others, and inferences that I have drawn from the names of some of the organizations, I am prepared to assume that there was an unacceptable degree of risk that disclosure of the information withheld would indirectly reveal the identity of the taxpayer claimants. As for the few large organizations named, it is clear that they are almost certainly corporations or registered charities and thus are taxpayers within the meaning of the Income Tax Act. To disclose the information obtained by the Minister about them would inevitably disclose their identity.
[58]Hence, I find that the Minister was correct in law not to disclose any of this information.
[59]The second category of information found on pages 82-97 names the employers of claimants that Revenue Canada has accepted are religious orders for the purposes of paragraph 8(1)(c) of the Income Tax Act. Similar information is contained on pages 99-100.
[60]Again, since the disclosure of the names of the employers might indirectly reveal the identity of the claimants, I am satisfied that this information was properly withheld.
[61]Pages 120-147 contain documents that identify and describe organizations that have been accepted as religious orders, employees of which have claimed deductions. The nature of some of these claims is described at length. The information withheld seems to me to fall within section 24 as "taxpayer information" because it could be used to identify those who had claimed this deduction.
| (iv) Section 23 |
[62]The document on pages 101-118 deals with the scope of paragraph 8(1)(c) of the Income Tax Act. It is a legal opinion provided, on request, by the Department of Justice, and hence is within the exemption established by section 23. Even though the opinion was given 15 years ago, it deals with issues that are of continuing vitality and hence there was no obvious error in the decision not to disclose it in the exercise of discretion.
| F. CONCLUSION |
[63]With the exception of the material on pages 24, 69 and 74 of the bundle of documents that I have decided was not within the exemption claimed pursuant to paragraph 21(1)(a) or (b), in my opinion the Minister was authorized or required to withhold the documents that have not been disclosed to the applicant.
[64]For these reasons, the application for judicial review is granted with respect to the decision not to disclose the above material. The Minister is ordered to disclose the withheld material that does not fall within the scope of any of the statutory exceptions. Otherwise, the application is dismissed.
[65]Counsel have indicated that they wish to make submissions on the question of costs. These should be in writing and should reach the Court within 14 days from the date of these reasons.