YVES MAYRAND Applicant v. MINISTER OF NATIONAL REVENUE, 2021 FC 814

Date: 20210804 Docket: T-11-20 Citation: 2021 FC 814 [ENGLISH TRANSLATION] Ottawa, Ontario, August 4, 2021 Present: The Honourable Madam Justice St-Louis BETWEEN: YVES MAYRAND Applicant and MINISTER OF NATIONAL REVENUE Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] This is an application for judicial review pursuant to

section 41 of the Access to Information Act , RSC 1985, c A-1 [the ATIA ]. The application relates specifically to the refusal by the Canada Revenue Agency [the Agency] to disclose certain records, or portions thereof, to Yves Mayrand, the applicant. [ 2 ] Through this application, Mr. Mayrand is seeking to obtain the information that was redacted from the documents provided to him. [ 3 ] Subsections 19(1) and 24(1) and paragraph 21(1) (

b) of the ATIA were cited before the Court to justify the non-disclosure of information to Mr. Mayrand. [ 4 ] In short, as required by the ATIA , the Court has reviewed the redacted information and finds that the Agency correctly applied the exemptions in the ATIA and reasonably exercised its discretion not to disclose the information, where such discretion is provided. II. Background [ 5 ] On July 4, 2014, Mr.

Mayrand filed an initial access to information request seeking copies of any documents relating to four grievances concerning his work as an auditor with the Agency. [ 6 ] On January 6, 2015, the Agency provided the documents to Mr. Mayrand [Communication No. 1]. Some of the documents had been redacted, some in their entirety and some in part. The Agency invoked paragraphs 16(1) (

c) and 21(1) (

a) and (

b) and subsections 19(1) and 24(1) of the ATIA . Mr. Mayrand attempted to lodge a complaint with the Information Commissioner, but since the time limit had expired, the complaint was not accepted. [ 7 ] On April 16, 2015, Mr. Mayrand submitted a follow-up access request in which he asked that the deleted passages be provided to him pursuant to sections 8 and 12 of the ATIA . [ 8 ] On September 29, 2015, the Agency resent the same documents it had provided to him on January 6 [Communication No. 2]. [ 9 ] On October 1, 2015, Mr.

Mayrand filed a complaint with the Office of the Information Commissioner of Canada [the Commissioner or the OIC] that was essentially aimed at obtaining the requested information. Mr. Mayrand stated that he was complaining about the delay in processing his request and was seeking access to the exempted information. The OIC initiated an investigation. [ 10 ] On September 20, 2017, the Agency received from the OIC a detailed analysis grid that included observations regarding Communication No. 2. On December 11, 2017, the Agency sent Mr.

Mayrand a new, less redacted version of 36 of the pages it had previously sent him [Communication No. 3]. On March 12, 2019, the OIC wrote to the Agency. Because this communication was confidential, the Court cannot reveal its contents. [ 11 ] Following comments from and discussions with the OIC, on June 21, 2019, the Agency sent Mr. Mayrand documents disclosing additional information, as the Agency was no longer invoking paragraphs 16(1) (

c) and 21(1) (

a) of the ATIA . In addition, the Agency reduced the redactions made under paragraph 21(1) (

b) of the ATIA . However, the redactions made pursuant to subsections 19(1) and 24(1) of the ATIA remained unchanged [Communication No. 4]. [ 12 ] Communication No. 4 is the one before this Court. As described by the Minister in the Respondent’s Memorandum, the public version of Communication No. 4, transmitted to Mr. Mayrand with opaque redactions, is Exhibit H attached to the affidavit of Stefanie Thaverne, a manager in the Agency’s Access to Information Directorate who testified on behalf of the Minister. The confidential version of Communication No. 4, with transparent redactions, is Exhibit J attached to Ms.

Thaverne’s affidavit. [ 13 ] As the Minister also points out, the documents contain a total of 3,449 pages. Of these 3,449 pages, 1,565 are completely or partially

redacted, 1,879 were provided to Mr. Mayrand unredacted, and 5 are duplicates of pages provided to Mr. Mayrand unredacted. Ms.Thaverne explained that in reviewing the documents for her affidavit, she found that 2 pages redacted pursuant to subsection 19(1)—pages 0827 and 0828 following the original numbering—had since been disclosed to Mr. Mayrand unredacted. Accordingly, the Courtmust make a finding with regard to a total of 1,563 partially or completely redacted pages. [14] Ms.

Thaverne further stated that some information redacted under subsection 19(1) of the ATIA should also have been redactedunder subsection 24(1) of the ATIA (paragraphs 39, 42–43 of Ms. Thaverne’s affidavit). [15] Given the large volume of documents, to facilitate the Court’s review, exhibits L, M, N and O were appended to Ms. Thaverne’saffidavit.

These are excerpts from Exhibit J, containing only those documents with redactions under the following provisions:subsections 19(1) and 24(1), Exhibit L; subsection 19(1), Exhibit M; subsection 24(1), Exhibit N; and paragraph 21(1)(b), Exhibit O.The Court therefore examined these documents for the purpose of rendering this decision. [16] On August 22, 2019, the OIC communicated the results of its investigation to Mr. Mayrand through its report.

In it, the OIC notedthat the Agency had made two additional releases dated December 11, 2017, and June 21, 2019, and that the Agency had sought Mr.Mayrand’s comments but its letter to him was returned with the inscription "“unclaimed.”" The OIC stated that it had therefore beenunable to confirm Mr. Mayrand’s interest in continuing the investigation and had not analyzed the remaining undisclosed information. [17] According to the report, the OIC had therefore terminated its investigation without completing it.

The Commissioner stated that thecomplaint was well founded, but that conclusion was based on Communication No. 2, which contains more redactions thanCommunication No. 4, which is in fact the last one sent to Mr. Mayrand. [18] As argued by the Minister, the OIC’s August 22, 2019 report does not indicate which redactions under the exemptions areproblematic, does not contain the equivalent of the March 12, 2019 statement requesting additional justifications, and makes norecommendations to the Agency. III. Arguments A. Mr. Mayrand [19] Mr. Mayrand initiated this application in December 2019.

On January 14, 2020, he filed an affidavit and documents, and onSeptember 21, 2020, he filed his Applicant’s Record containing his memorandum of fact and law. [20] At the hearing, Mr. Mayrand attacked the validity of Ms. Thaverne’s affidavit. He had not previously raised this argument, however,and in accordance with the case law on the subject, the Court will not consider it and will not invalidate the affidavit. [21] In his application for review, Mr. Mayrand first argues that the Agency’s new exemption claim pursuant to subsection 24(1) of theATIA is untimely.

He further argues that the Agency is not justified in applying subsections 16(1), 19(1) and 24(1) to the requestedinformation and in using paragraphs 21(1)(

a) and (

b) of the ATIA to exempt a certain portion of the requested information. [22] He submits that the standard of correctness should be used in analyzing exemptions claimed under the ATIA, and that the standardof review that should be applied in assessing the exercise of discretion is the one set out in Maple Lodge Farms LTD v Government ofCanada, (SCC), [1982] 2 SCR 2 at pages 7 and 8. A.

The Minister [23] The Minister submits that the applicability of exemptions under the ATIA is reviewed on a standard of correctness, while thestandard of reasonableness applies when reviewing the exercise of discretion in relation to those exemptions. [24] The Minister points out that not all of the exemptions alleged by Mr. Mayrand to be improper are actually at issue given that in thelast communication to Mr. Mayrand, Communication No. 4, the Agency waived the exemptions under paragraphs 16(1)(

c) and 21(1)(a)and disclosed the information that had previously been redacted on the basis of those provisions. The exemptions at issue before theCourt are therefore those set out in subsections 24(1) and 19(1) and paragraph 21(1)(

b) of the ATIA. [25] The Minister essentially argues that the Agency correctly applied the exemptions in the ATIA, and that the Agency reasonablyexercised the discretion conferred on it by the ATIA. IV. Analysis A. Standard of review [26] I agree with the parties as to the standard of review. As the Minister states, on an application for review of a refusal to discloserecords or information, the question of whether an exemption used to justify the refusal actually applies is reviewed on a standard ofcorrectness.

This means that "“the Court must determine on a standard of correctness whether the record requested falls within anexemption.”" Discretionary decisions made by the government institution, on the other hand, are reviewed on a standard ofreasonableness (Husky Oil Operations Limited v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 10, atparagraph 15).

Section 44.1 of the ATIA, in force as of June 21, 2019, confirms this approach, developed by the case law. This sectionprovides under the subheading "“De novo review”" that "“[f]or greater certainty, an application under

section 41 or 44 is to be heard anddetermined as a new proceeding.”"

[27] Thus, if the Court finds on the standard of correctness that the Agency has erred,

section 49 of the ATIA empowers the Court tosubstitute its decision for that of the Agency and to order the disclosure of the record or passage. However, this remedial power isexhausted once the Court finds that the Agency has correctly interpreted these criteria (Canada (Information Commissioner) v Canada(Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8; Yeager v Canada (National Parole Board), 2008 FC 113). [28] Not all the exemptions challenged by Mr. Mayrand are actually in play, given that the information initially exempted pursuant toparagraphs 16(1)(

c) and 21(1)(

a) of the ATIA was subsequently disclosed by the Agency in Communication No. 4. As previouslymentioned, the exemptions at issue before the Court are therefore those provided for in subsections 24(1) and 19(1) and paragraph21(1)(

b) of the ATIA. B. Information redacted pursuant to subsection 24(1) of ATIA [29] Subsection 24(1) of the ATIA provides for statutory prohibitions against disclosure and states that "“[t]he head of a governmentinstitution shall refuse to disclose any record requested under this Part that contains information the disclosure of which is restricted byor pursuant to any provision set out in

Schedule II.”" This prohibition is not accompanied by any residual discretion to disclose records.The provisions listed in

Schedule II include

section 295 of the Excise Tax Act (RSC 1985, c E-15) and

section 241 of the Income Tax Act(RSC, 1985, c 1 (5th Supp)). [30] Pursuant to subsection 24(1) of the ATIA, certain disclosures are therefore prohibited under

section 295 of the Excise Tax Act andsection 241 of the Income Tax Act. [31] Subsection 295(1) of the Excise Tax Act defines "“confidential information” "as "“information of any kind and in any form thatrelates to one or more persons and that is (

a) obtained by or on behalf of the Minister for the purposes of [Part IX of the Excise Tax Act(Goods and Services Tax)], or (

b) prepared from [such] information”". Subsection 295(2) prohibits knowingly providing confidentialinformation, allowing it to be provided, allowing any person to have access to it, or using it outside the administration or enforcement ofPart IX of the Excise Tax Act. [32] Subsection 241(1) of the Income Tax Act contains a prohibition very similar to the one found in subsection 295(2) of the Excise TaxAct.

The definition of "“taxpayer information” "is found in subsection 241(10) of the Income Tax Act and is almost identical to thedefinition of "“confidential information”" in subsection 295(1) of the Excise Tax Act. This provision was interpreted in Slattery (Trusteeof) v Slattery, (SCC), [1993] 3 SCR 430 at 443–44, and that

interpretation can be applied to

section 295 of the ExciseTax Act (Bradwick Property Management v Canada (National Revenue); 2019 FC 289; Canada (National Revenue) v Bradwick PropertyManagement Services Inc., 2020 FCA 147). [33] The vast majority of the documents and information protected by the Agency—1,254 of the 1,565 redacted pages—are protectedunder this exemption set out in subsection 24(1) of the ATIA. They have been grouped together in Exhibit N of Ms.

Thaverne’s affidavit.The Court has examined the information redacted from the documents on the basis of the exemption in subsection 24(1) of the ATIA andagrees with the Minister that the redacted information falls within the scope of that provision. As argued by the Minister, these aredocuments submitted to the Agency by tax registrants/taxpayers, correspondence between the Agency and these persons, and documentsrelating to the audit conducted by the Agency based on these documents.

The information contained in these documents is "“confidentialinformation” "within the meaning of subsection 295(1) of the Excise Tax Act. Furthermore, the Court is also satisfied that the limitedauthorizations to provide confidential information found in

section 295 do not apply in this case. Furthermore, the confidentialinformation protected by subsection 241(1) of the Income Tax Act includes taxpayer information associated with tax registrants,including individuals’ social insurance numbers. [34] The Court found no error in the Agency’s treatment of the information under subsection 24(1) of the ATIA. The Agency correctlyapplied this exemption. C. Information redacted pursuant to subsection 19(1) of ATIA and discretionarypower of subsection 19(2) [35]

Section 19 of the ATIA states: 19(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under thisPart that contains personal information. Where disclosure authorized

(2) The head of a government institution may disclose any record requested under this Part that contains personalinformation if (

a) the individual to whom it relates consents to the disclosure; (

b) the information is publicly available; or (

c) the disclosure is in accordance with

section 8 of the Privacy Act. [36]

Section 3 of the Privacy Act (RSC 1985, c P-21) lists the types of information considered to be personal information. [37]

Section 3 also provides that certain information is not personal information within the meaning of the ATIA, and subparagraph 3(j)(

v) specifically covers information about a current or former officer or employee of a government institution that relates to his or herposition or functions, including "“the personal opinions or views of the individual given in the course of employment”." I am satisfied

that this element is not at issue in this case given that the information redacted pursuant to subsection 19(1) of the ATIA does not involvesuch opinions or views. [38] The information redacted under subsection 19(1) of the ATIA is found in Exhibit M of Ms. Thaverne’s affidavit, and the Court issatisfied that the exemption was properly applied. [39] The Court agrees with the Minister’s position regarding Mr.

Mayrand’s argument that the exemption was raised too late. [40] Finally, there is no evidence that the Agency acted unreasonably in not exercising its discretion under subsection 19(2) of the ATIA.Indeed, the evidence does not reveal that any of the situations that would have allowed the Agency to disclose the records applied in thiscase. D. Information redacted under paragraph 21(1)(

b) of ATIA [41] Paragraph 21(1)(

b) of the ATIA states: 21(1) The head of a government institution may refuse to disclose any record requested under this Part 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 in which directors, officers or employees of a government institution,a minister of the Crown or the staff of a minister participate, (

c) positions or plans developed for the purpose of negotiations carried on or to be carried on by or on behalf of theGovernment of Canada and considerations relating thereto, or (

d) plans relating to the management of personnel or the administration of a government institution that have not yet beenput into operation. (Emphasis added) [42] In paragraphs 45 to 50 of the Respondent’s Memorandum, the Minister set out the principles that have emerged through the caselaw. For the purposes of this review, the important point is that "“[m]ost internal documents that analyse a problem, starting with aninitial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likelyto be caught within paragraph (

a) or (

b) of subsection 21(1).” "(Canadian Council of Christian Charities v Canada (Minister of Finance) (FC), [1999] 4 FC 245 (CA) at paragraphs 39–40). [43] In this case, after examining the information redacted pursuant to paragraph 21(1)(

b) of the ATIA, and found in Exhibit O of Ms.Thaverne’s affidavit, I arrive at the same conclusion as Ms. Thaverne. The redacted documents were less than 20 years old at the time ofthe access request, a government institution was involved, and the redacted pages contain records of consultations or deliberations. Thedocuments contain accounts of consultations or deliberations among public servants who are members of the Agency’s managementteam and labour relations group.

The examination reveals that these consultations and deliberations do indeed address potential optionsfor management pertaining to decisions to be made and the conduct of ongoing grievances, including with respect to Mr. Mayrand. Inlight of the legislation and case law, this information was correctly redacted, and the Agency properly applied the exemption. [44] Moreover, as Justice Evans noted in Canadian Council of Christian Charities, "“[t]here is very little role for the Court in overseeingthe exercise of this discretion.”" Therefore, based on the process followed by Ms.

Thaverne and given the circumstances, I find that theAgency acted reasonably in refusing to disclose documents and passages that could be protected pursuant to paragraph 21(1)(

b) of theATIA. JUDGMENT in T-11-20 THE COURT’S JUDGMENT is as follows: - Mr. Mayrand’s application is dismissed. - Access to the exempted information is denied. - Costs are awarded in favour of the Minister. “Martine St-Louis” Judge Certified true translation Michael Palles, Reviser FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-11-20 STYLE OF CAUSE: YVES MAYRAND v. MINISTER OF NATIONAL REVENUE PLACE OF HEARING: montrÉal, quebec (by videoconference) DATE OF HEARING: March 1, 2021 JUDGMENT AND REASONS: st-louis j. DATED: August 4, 2021 APPEARANCES : Yves Mayrand FOR THE APPLICANT (SELF-REPRESENTED) Jean-Pierre Hachey for the defendant SOLICITORS OF RECORD : Yves Mayrand Kingston, Ontario for the applicant (SELF-REPRESENTED) Attorney General of Canada Ottawa, Ontario for the defendant