http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/127116/index.do
Morrison v. The Queen (December 9, 2015 – 2015 TCC 319, Pizzitelli J.).
Précis: The taxpayer’s appeal was one of a number of test cases dealing with donations of pharmaceuticals under tax shelter programs described as the CHT and CGI Donation Programs. In this motion the taxpayer claimed three forms of relief:
[4] The relief sought by the Appellant involves three main issues; (1) the disclosure of the names and addresses of third-party taxpayers who are only at the objections stage of their process; (2) the release of transcripts of discovery conducted against the Respondent by other appellants; and (3) a delay in the date of discovery of the Appellant. I will address each in the context of the Appellant’s arguments.
The first head of relief was denied on the basis of taxpayer confidentiality and the second head was denied on the basis of the implied undertaking rule. Finally as the taxpayer failed to succeed on the first two grounds there was no basis for a further delay of his discovery.
Decision: On the taxpayer’s request for information about other participants in the Donation Programs, the Court found:
[20] In Rezek above Bowman J. held that the names of other taxpayers who engaged in the same transactions could not be disclosed and in Penn West Petroleum Ltd. v The Queen, 2006 TCC 82, 2006 DTC 2338, Beaubier J. found that whether other taxpayers had been reassessed is information that is expressly forbidden by statute. Both are consistent with the Federal Court of Appeal’s decision in Ford above that the taxpayer must prove the requirements of compliance with the Act on its own terms and that those of others are irrelevant.
[21] Consistent with the above principles, there is also no need for the Objectors to be told the Appellant is a test case or that previous counsel for the promoters have withdrawn. Since this information is a matter of public record, all other taxpayers have access to same. Each taxpayer of course has the right to pursue his objections and appeals as he or she or it may determine including deciding whether to file an appeal where the Minister had not confirmed an objection within 90 days pursuant to paragraph 169(1)(b) of the Act and whether they wish to be represented by counsel and who that might be. This Court has no jurisdiction to involve itself in the affairs of taxpayers who have not filed an appeal unless specifically provided for in the Act or other applicable legislation nor to dictate to the Minister what information it must make available to such parties as part of its duties or acts in dealing with taxpayers in pre-appeal stages. That is for the Minister to decide and for such other taxpayers to deal with if they so choose. The Appellant has no standing to speak for any such other taxpayers or advocate for them and in fact would be acting improperly by attempting to do so without their consent, notwithstanding any altruistic concerns he may have for them. Moreover, the fact the Minister interacts with taxpayers involved in similar transactions before the appellate stage does not mean such interaction is, in and of itself, proof their information is relevant to other appellants as the Appellant seems to contend.
Similarly on the request for discovery transcripts in other proceedings the Court found:
[24] While I note that the Respondent has indicated it does not object to the release of such short transcripts, which it says exist with respect to only two other appellants, provided this Court so orders or the other appellants consent, such discovery was conducted by such other appellants at their cost and as part of their appeal pursuant to an action between the Minister and such other appellants and should not be disclosed to any other party without their consent or court order issued pursuant to a proper motion in which they have been given the opportunity to participate in to protect whatever privacy interest or public interest they may choose. It is not for the one party to simply violate such implied undertaking without the consent of the other party. Moreover, since it is not the Respondent here who seeks to have the implied undertaking set aside, the confidentiality rules of the Act place an obligation on the Respondent not to release such information that no doubt may contain some taxpayer information, without a court order permitting it to do so as a matter of necessity. While I appreciate the release of such information may be a convenience to the Appellant, I frankly fail to see why it would be a necessity, especially having regard to my comments earlier and the fact that he may and has yet to conduct his own discovery of the Respondent and so appears to me that such request may be premature if not redundant. However, he is free to pursue such motion if he so chooses on proper application to the Court and on notice to the other appellants who conducted the discovery and to the Respondent.
Having failed on the first two grounds the taxpayer was not entitled to a further delay in his own discovery:
[25] In light of the above, as I am not in agreement with the Appellant’s position on any of the other reliefs requested in this motion, I see no reason to interfere with the Order of Paris J. who extended the time for discovery of the Appellant until January 22, 2016.
In a very clear expression of his disapproval of the taxpayer’s tactics Justice Pizzitelli awarded costs on the motion to the Crown regardless of the result:
[26] The Appellant’s motion is dismissed in its entirety with costs to the Respondent regardless of the result.