http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/71366/index.do 
Bolduc v. The Queen (April 30, 2014 – 2014 TCC 128) was a motion attempting to obtain full disclosure from the Crown:
[1] The Appellant has brought a Motion in which he requests:
(a) an Order directing that the parties file and serve on each other a list of documents pursuant to section 82 of the
Tax Court of Canada Rules (General Procedure) (the “Rules”);
(b) an Order permitting the Appellant to conduct further oral discovery upon a nominee of the Respondent that is knowledgeable in respect of documents included in the Respondent’s list of documents served on the Appellant pursuant to the Order requested above; and,
(c) an Order for costs of this motion.
The taxpayer had participated in a form of tax scheme seen in a number of reported cases where he had claimed spurious business losses in the amount of $326,127.38 in 2009 and attempted to carry the losses back to 2006, 2007 and 2008. The Minister disallowed the losses claimed in 2009 and assessed a gross negligence penalty of $42,028.51. The taxpayer never received the refunds claimed.
It appears that the only point at issue in the appeal is the gross negligence penalty. In essence the taxpayer’s argument was that he acted reasonably and his conduct did not amount to gross negligence:
[10] It is the Appellant’s position that gross negligence penalties should not have been assessed against him because he believed that the Scheme which had been marketed to him and thousands of other taxpayers was legitimate. In order to demonstrate that his negligence did not rise to the level of gross negligence, he will argue that he acted reasonably in the circumstances by comparing his actions with that of the “reasonable person”. The Appellant submitted that he should be able to present the full circumstances of the Scheme, and the fact that many other taxpayers also participated in it.
[11] I inferred from counsel’s submissions that he will argue that the “reasonable person” is all the other individuals who claimed false business losses in their returns in circumstances similar to the Appellant.
[12] Counsel for the Appellant stated that the Minister had an audit project for the Scheme which involved thousands of taxpayers. The Minister controlled the audit project, the resulting assessments and the investigations. It is the Appellant’s view that the Minister has the documents which will assist him in establishing what the reasonable person did and/or what was reasonable in the circumstances similar to that of the Appellant.
The court refused the taxpayer’s motion on the grounds that he had not established that the information sought would be relevant to his defence of the gross negligence penalty:
[22] The focus of the inquiry at the hearing of this appeal will be on facts specific to the Appellant’s education, experience, knowledge and conduct. The documents sought by the Appellant are not relevant to these facts nor will the requested documents add any value to the Court’s appreciation of the evidence with respect to the Appellant’s state of mind and belief. An Order for full disclosure in this case will not secure the just, most expeditious and least expensive determination of the proceeding.
[23] Counsel for the Appellant stated that his objective will be to establish why it was reasonable in the circumstances for the Appellant to believe that the Scheme was legitimate. He plans to make an argument based on the “reasonable person” and he seeks information with respect to other taxpayers who also claimed false losses in their tax returns. However, the personal information with respect to other taxpayers is not relevant to the Appellant’s appeal: Sinclair v R, 2003 FCA 348. It is my opinion that the Appellant has sufficient information to make the “reasonable person” argument. The Respondent has already given him data with respect to the number of taxpayers who have been audited for false business losses for the period 2009 to 2014. I make no decision as to the relevancy of the Appellant’s proposed argument.
The court also went on to conclude that there was too little at stake to justify the costs of full disclosure:
[27] In addition to the reasons given above, I have also concluded that the amount in issue in this appeal ($42,028.51) does not warrant the costs which would be incurred in complying with an order for full disclosure of documents.
[28] In conclusion, the Appellant has not demonstrated that the documents he seeks are relevant to the issue in his appeal. Even if some of these documents may be relevant, I am not satisfied that full disclosure will secure the just, most expeditious and least expensive determination of the issue under appeal. The motion is dismissed with costs to the Respondent.
Comment: This decision is troubling. It is not clear whether the taxpayer was aware when he entered into the scheme that thousands of other taxpayers had also done so. If he was then surely that goes to his state of mind. Evidence that thousands of other taxpayers had done exactly the same thing would appear to corroborate the taxpayer’s position. It may or may not defeat the allegation of gross negligence but one would think that the evidence should be before the court. It is possible that the breadth of the disclosure sought should have been narrowed but not requiring the Crown to produce any additional information seems harsh.
The suggestion that the amount at stake is too small to justify the expense of producing the material sought is also troubling. There is no discussion in the decision of how material the amount was to the individual taxpayer. The penalty here (roughly $42,000) might well be far more material to Mr. Bolduc than multi-million dollar claims in cases involving large corporations or wealthy individuals.