Daley v. Canada (Attorney General) Toronto Tax Lawyer Case Comment Part 3

Daley v. Canada (Attorney General) - 2016 FC 1154 - Judicial Review of Privacy Commissioner Findings - Toronto Tax Lawyer Case Comment

Part III: Unauthorized Disclosure Issue and Case Comment Conclusion

The issue of whether Ms. Daley was entitled to a duty of fairness is discussed in detail by our expert Toronto Tax Lawyers in Part II of this case comment. Part III will look at the decision of the Office of the Privacy Commissioner of Canada about the unauthorized disclosure and whether it was reasonable. The Federal Court identified interpretation issues and decided that it was not.

The Unauthorized Disclosure of Mr. O's Interview Transcript to Ms. T

The Court found that the disclosure was not unauthorized and determined that the OPC had assumed authority which was statutorily entrusted to another decision-maker (The Minister of Revenue or CRA) through an Act of Parliament (the Income Tax Act). They were unreasonable in assuming this authority and incorrectly interpreted paragraph 241(3)(b) of the Income Tax Act. Paragraph 241(3)(b) lays out when the CRA can disclose taxpayer information. Unless authorized by a provision in section 241 of the Income Tax Act, the CRA must keep taxpayer information private.

The Federal Court of Canada in Privacy Act (Can.) (Re) ([2003] 3 FCR 82) determined that paragraph 8(2)(b) of the Privacy Act enables Parliament to confer wide discretion about the disclosure of information their departments have collected to a Minister. The Court concluded that, at minimum, the OPC must take into account the CRA's interpretation of paragraph 241(3)(b) and related jurisprudence in its analysis. The Office of the Privacy Commissioner of Canada failed to do so and used a narrow interpretation approach as opposed to the CRA's stance that it should be interpreted broadly.

In Slattery (Trustee of) v Slattery ([1993] 3 SCR 430) the Supreme Court of Canada stated that the language in paragraph 241(3)(b) was broad. Broad language indicates that a wide view should be used when considering if a disclosure was made in respect of proceedings relating to the administration of the Income Tax Act. Confidentiality does not apply if a disclosure is made in respect of proceedings relating to the administration or enforcement of the Income Tax Act.

The Court stated that the Office of the Privacy Commissioner of Canada characterized the proceedings between Mr. H and Mr. O as "damages arising out of business dealings." This characterization...