V. Ross Morrison v. The Queen -deals with Canadian Humanitarian Trust and Canadian Gift Initiative

December 16, 2015 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News, What's New from the Charities Directorate of CRA, Canadian Charity Law

The Honourable Justice F.J. Pizzitelli of the Tax Court of Canada dealt with a motion in V. Ross Morrison v. The Queen. The court dismissed the motion with costs. The cases deals with the Canadian Humanitarian Trust (“CHT”) and Canadian Gift Initiative (“CGI”) which CRA would describe as abusive charity gifting tax schemes.   Mr. Morrison had wanted that the CRA to "disclose or produce for inspection the names and municipal and/or email addresses of all persons who have filed Objections to the Reassessments in the CHT and CGI Donation Programs and whose Objections have not been resolved (the “Outstanding Objectors”);" The court noted "I do not agree with any of the Appellant’s arguments. The Appellant has neither provided nor argued any legal precedent that supports his position on any of these issues. There is ample precedent against."

The court noted:

[12]        The only explanation that makes such names and addresses relevant appear to be found in the Appellant’s affidavit in support of this Motion that such Objectors may wish to retain the services of the Appellant’s law firm. Frankly, such suggestion is a totally inappropriate reason for bringing this application.

[13]        The Appellant actually admitted in argument that while he could get by without this requested information he felt entitled to them as a consequence of his status as a test case. Firstly, there is no support in law for such alleged entitlement and secondly he has in fact admitted such information is not really necessary for his case. I might also add that the Appellant has argued he understands that there are in fact more than 200 taxpayers who have filed Notices of Appeal and so such information with respect to such taxpayers are a matter of public record. He appears to have ample access to hundreds of taxpayers who might be able to assist him as witnesses if he chooses to contact them. I fail to see how in these circumstances he can possibly argue the Minister should release confidential third-party information as a matter of necessity. He should make his own efforts to compile third-party taxpayer information for his purposes, either by reviewing information that is a matter of public information as it pertains to the taxpayers who have filed appeals above or advertising for assistance from those who have not. The Appellant appears to feel he has the right to ask the Respondent or even this Court to do his leg work for him without making any real effort to do so himself.

[14]        As for the Appellant’s contention that section 241 of the Act does not prohibit the Respondent from releasing the names and addresses of the Objectors, I simply cannot agree either.

[15]        Section 241 reads as follows:

241(1) Provision of Information.  Except as authorized by this section, no official or other representative of a government entity 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; or

(c) knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.

(2) Evidence relating to taxpayer information.  Notwithstanding any other Act of Parliament or other law, no official or other representative of a government entity shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information.

(3) Communication where proceedings have been commenced.  Subsections (1) and (2) do not apply in respect of

(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or

(b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty.

… [3.1 to 3.3 omitted as not specific to these reasons]

(4)  Where taxpayer information may be disclosed.  An official may

(a) provide to any person taxpayer information that can reasonably be regarded as necessary for the purposes of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act, solely for that purpose;

[16]        It is clear that subsections 241(1) and (2) contain the restrictions against any government official which includes the Minister releasing any taxpayer information or giving evidence with respect to same. The Appellant however argues that the names and addresses of the Objectors is not “taxpayer information” and that subsection 241(3) would in any event exclude the application of subsections (1) and (2).

[17]        Subsection 241(10) of the Act defines “taxpayer information” as follows:

(10)  Definitions.  In this section,

“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.

[18]        It is absolutely clear that not only is taxpayer information very broadly defined to include “information of any kind and in any form” which would clearly include names and addresses, but the fact it excludes information that would not “directly or indirectly reveal the identity of the taxpayer” emphasizes that the names and addresses of taxpayers are the focus of such identity protection.

[19]        As for the Appellant’s argument that paragraph 241(3)(b) is an exception to the release of taxpayer information since his appeal is a legal proceeding relating to the administration of the Act, the Appellant has unfortunately failed to grasp that subsection (4) also applies and clearly only allows the release of information that is “necessary” for the purposes of such administration or enforcement and “solely” for that purpose. As indicated above, the Appellant has admitted such information is not necessary and I have found it is neither relevant nor necessary for the Appellant to have in respect of this proceeding of enforcement of the Act against him.

[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 theAct 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.

[12]        The only explanation that makes such names and addresses relevant appear to be found in the Appellant’s affidavit in support of this Motion that such Objectors may wish to retain the services of the Appellant’s law firm. Frankly, such suggestion is a totally inappropriate reason for bringing this application.

[13]        The Appellant actually admitted in argument that while he could get by without this requested information he felt entitled to them as a consequence of his status as a test case. Firstly, there is no support in law for such alleged entitlement and secondly he has in fact admitted such information is not really necessary for his case. I might also add that the Appellant has argued he understands that there are in fact more than 200 taxpayers who have filed Notices of Appeal and so such information with respect to such taxpayers are a matter of public record. He appears to have ample access to hundreds of taxpayers who might be able to assist him as witnesses if he chooses to contact them. I fail to see how in these circumstances he can possibly argue the Minister should release confidential third-party information as a matter of necessity. He should make his own efforts to compile third-party taxpayer information for his purposes, either by reviewing information that is a matter of public information as it pertains to the taxpayers who have filed appeals above or advertising for assistance from those who have not. The Appellant appears to feel he has the right to ask the Respondent or even this Court to do his leg work for him without making any real effort to do so himself.

[14]        As for the Appellant’s contention that section 241 of the Act does not prohibit the Respondent from releasing the names and addresses of the Objectors, I simply cannot agree either.

[15]        Section 241 reads as follows:

241(1) Provision of Information.  Except as authorized by this section, no official or other representative of a government entity 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; or

(c) knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.

(2) Evidence relating to taxpayer information.  Notwithstanding any other Act of Parliament or other law, no official or other representative of a government entity shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information.

(3) Communication where proceedings have been commenced.  Subsections (1) and (2) do not apply in respect of

(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or

(b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty.

… [3.1 to 3.3 omitted as not specific to these reasons]

(4)  Where taxpayer information may be disclosed.  An official may

(a) provide to any person taxpayer information that can reasonably be regarded as necessary for the purposes of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act, solely for that purpose;

[16]        It is clear that subsections 241(1) and (2) contain the restrictions against any government official which includes the Minister releasing any taxpayer information or giving evidence with respect to same. The Appellant however argues that the names and addresses of the Objectors is not “taxpayer information” and that subsection 241(3) would in any event exclude the application of subsections (1) and (2).

[17]        Subsection 241(10) of the Act defines “taxpayer information” as follows:

(10)  Definitions.  In this section,

“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.

[18]        It is absolutely clear that not only is taxpayer information very broadly defined to include “information of any kind and in any form” which would clearly include names and addresses, but the fact it excludes information that would not “directly or indirectly reveal the identity of the taxpayer” emphasizes that the names and addresses of taxpayers are the focus of such identity protection.

[19]        As for the Appellant’s argument that paragraph 241(3)(b) is an exception to the release of taxpayer information since his appeal is a legal proceeding relating to the administration of the Act, the Appellant has unfortunately failed to grasp that subsection (4) also applies and clearly only allows the release of information that is “necessary” for the purposes of such administration or enforcement and “solely” for that purpose. As indicated above, the Appellant has admitted such information is not necessary and I have found it is neither relevant nor necessary for the Appellant to have in respect of this proceeding of enforcement of the Act against him.

[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 theAct 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.

....

Conclusion

[26]        The Appellant’s motion is dismissed in its entirety with costs to the Respondent regardless of the result.

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