http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13633/index.do 
John Doe v. Ontario (Finance) (May 9, 2014 – 2014 SCC 36) was an appeal originating from an application by a tax lawyer for information related to 2005 amendments to the
Ontario Corporations Tax Act:
[4] John Doe is a lawyer practising in the area of tax law. He made an access to information request after the Ministry of Finance (“Ministry”) amended a provision of the
Ontario Corporations Tax Act, R.S.O. 1990, c. C.40, to eliminate the loophole created by Ontario’s legislation for tax haven corporations. The legislation was partially retroactive. On behalf of certain taxpayers concerned about the impact of such retroactivity on their tax liability, Mr. Doe requested [all] records or parts of records in the Ministry of Finance and the Ministry of Revenue which consider the issue of retroactivity and the effective date of the amendments to subsections 2(1) and (2) of the
Corporations Tax Act, which was effective May 11, 2005, including all records which provide the reasons for not deciding to make subsections 2(1) and (2) retroactive.
(Commissioner’s decision, Order PO-2872 at p. 1)
The operation of the amendments in question is described in the accompanying explanatory notes:
Subsections 2 (1) and (2) of the Act currently establish a corporation’s liability for taxes under the Act, depending on whether the corporation is incorporated in or outside Canada. Effective for taxation years ending after May 11, 2005, the re-enactment of subsections 2 (1) and (2) of the Act provides that the extent of a corporation’s liability for taxes depends in all cases on whether the corporation is resident in or outside Canada. Consequential amendments are made to sections 43.3 and 69 of the Act.
There was apparently concern that the former language allowed room for unacceptable tax avoidance.
In response to the disclosure application six documents were identified five of which Ontario refused to produce on various grounds but primarily that they contained advice to government:
[5] The Ministry located six records, five of which are at issue in the present appeal (“Records”). The Records are undated drafts of a policy options paper examining the possible effective dates of the amendments. Records I through IV are entitled “Draft Option Paper: Tax Haven Corporations — Timing of Implementation” and set out options regarding when the amendments could take effect. All the Records except Record IV include express statements regarding which options are not recommended. Record V, entitled “Note on Tax Avoidance Strategy”, lists three options and contains a statement from which the author’s recommended option can be easily inferred (Court of Appeal decision, 2012 ONCA 125, 109 O.R. (3d) 757, at paras. 4-5; IPC Order, at p. 5).
[6] According to the Ministry, the Records were versions of a paper that formed part of the briefings of the Minister, Deputy Minister, Assistant Deputy Minister of Finance and the Office of Budget and Taxation. One of the options was eventually enacted, resulting in the amendments that imposed partially retroactive tax liability (C.A. decision, at para. 7; IPC Order, at p. 5).
[7] The Ministry located and denied access to Records I through V on the basis of the s. 13(1) exemption:
13. (1) [Advice to government] A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.
Access to Records I through IV was denied also on the basis of the exemption to disclosure under ss. 15(a) (prejudice to intergovernmental relations) and 18(1)(d) (injury to financial interests or management of the economy). These provisions are not at issue in this appeal. Record VI was disclosed in part.
The Commissioner ordered production of all the documents on the basis that since the documents were drafts there was no evidence they had been communicated to the appropriate officials involved in the 2005 amendments. That determination was upheld by the Ontario Divisional Court but reversed by the Ontario Court of Appeal. The Supreme Court of Canada granted leave to appeal that decision and now has unanimously confirmed the decision of the Ontario Court of Appeal.
The decision is quite detailed but in a nutshell it held that to compel the disclosure of draft documents would render the advice privilege dysfunctional since the evolution of that advice would be tracked through the drafts:
[53] It was unreasonable for the IPC Order to require disclosure of the Records on the basis that most of their contents did not reveal a suggested course of action. This decision was based on definitions of “advice” and “recommendations” that left no room for the terms to have distinct meanings. It was also unreasonable for the IPC Order to require that there be evidence that information in the Records at issue in this case had been communicated in order to qualify for the s. 13(1) exemption. Policy options prepared in the course of the decision-making process such as those contained in the Records here, whether communicated or not, are within the meaning of “advice or recommendations” in s. 13(1) and qualify for exemption from disclosure.
[54] Under s. 10(2) of the
FIPPA, “as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions” must be disclosed. In the IPC Order, the Adjudicator noted that had the Records been communicated, she would have severed the Records and only exempted “information which suggests a course of action that will ultimately be accepted or rejected by the person being advised” (p. 9). However, the Adjudicator was applying an unreasonable definition of “advice”. These reasons have interpreted “advice” as including policy options. Because the Records constitute policy options in their entirety, they are not amenable to being severed. Accordingly, they qualify for exemption from disclosure in their entirety.
[55] The Records contain “recommendations” and “advice” and are eligible for exemption under s. 13(1) of the FIPPA. The appeal should be dismissed. No useful purpose would be served by remitting the matter to the IPC for redetermination. As agreed by the parties, no costs are awarded.
Comment: The attempt to obtain this information was a bold, but failed, attempt to crack the door ajar on the thorny issue of retroactive amendments (which are not uncommon, particularly in Ontario).