Palmerino v. Minister of National Revenue, 2013 FC 919

• Judge: Scott, J.
• Court: Federal Court (Canada)
• Case Date: June 10, 2013
• Jurisdiction: Canada (Federal)
• Citations: 2013 FC 919;(2013), 438 F.T.R. 309 (FC)

Palmerino v. MNR (2013), 438 F.T.R. 309 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. SE.015

Gisella Palmerino (demanderesse) v. Ministre du Revenu national (défendeur)

(T-2115-11)

Rodolfo Palmerino (demandeur) v. Ministre du Revenu national (défendeur)

(T-2116-11)

Alfredo Magalhaes (demandeur) v. Ministre du Revenu national (défendeur)

(T-2117-11)

Francesco Bruno (demandeur) v. Ministre du Revenu national (défendeur)

(T-2118-11; 2013 CF 919; 2013 FC 919)

Indexed As: Palmerino v. Minister of National Revenue

Federal Court

Scott, J.

August 30, 2013.

Summary:

A taxpayer applied for judicial review pursuant to s. 41 of the Privacy Act of a decision by the Canada Revenue Agency (CRA) to refuse to disclose all information concerning her. The requested information emanated from or was received and/or held by 137 employees or officers of the CRA covering the period from January 2004 to May 2010. The CRA refused to release the information, relying on ss. 22(1)(a) and 22(1)(b) of the Privacy Act since the information had been prepared and obtained in connection with an investigation.

The Federal Court allowed the application.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure -Personal information - A taxpayer applied for judicial review of the Canada Revenue Agency's (CRA's) refusal to disclose all information concerning her obtained during a tax fraud investigation (Privacy Act, s. 22(1)(a) and 22(1)(b)) - The Federal Court allowed the application - The CRA's decision was unreasonable - The court rejected the argument that documents obtained in connection with a simple audit were automatically subject to the s. 22(1)(a) exemption once they were placed in a fraud investigation file - It could not be ignored that the applicant was seeking the information to challenge the lawfulness of part of the investigation and to protect her Charter rights - The evidence presented to justify the refusal to provide access demonstrated that some of the documents might have been obtained outside the confines of the fraud investigation - Further the CRA's tests and methodology for determining whether the requested documents were actually obtained and compiled as part of the fraud investigation and not during the audit were not clear.

Crown - Topic 7209.1

Examination of public documents - Freedom of information - Bars - Information obtained in lawful investigations - [See Civil Rights 7170 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - A taxpayer applied for judicial review of a Canada Revenue Agency (CRA) decision refusing to disclose personal information concerning her - The issues were: 1. Was the CRA [Canada Revenue Agency] justified in denying access to the requested documents under ss. 22(1)(a) and 22(1)(b) of the Privacy Act (PA); and (2) If so, did the CRA err in exercising the discretionary authority conferred on it by s. 22(1) of the PA to refuse to disclose the personal information requested by the applicant - The Federal Court held that the standard of review applicable to both issues was established by the case law; i.e., the correctness standard applied to the first issue and the reasonableness standard to the second issue - See paragraphs 10 to 13.

Cases Noticed:

Barta v. Canada (Attorney General), [2006] F.T.R. Uned. 911 (FC), refd to. [para. 10].

Thurlow v. Canada (Solicitor General) et al. (2003), 242 F.T.R. 214; 2003 FC 1414, refd to. [para. 11].

Blank v. Canada (Minister of Justice) (2009), 373 F.T.R. 1; 2009 FC 1221, refd to. [para. 11].

Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 438 N.R. 280; 2013 FCA 227, refd to. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, refd to. [para. 17].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 30].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 41].

Kaiser v. Minister of National Revenue (1995), 93 F.T.R 66 (T.D.), refd to. [para. 54].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 22(1)(a), sect. 22(1)(b) [para. 10, Appendix].

Counsel:

Martin Delisle, for the applicants;

Marjelaine Breton and Sébastien Gagné, for the respondent.

Solicitors of Record:

Starnico Mostovac, Montreal, Quebec, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard on June 10, 2013, in Montreal, Quebec, before Scott, J., of the Federal Court, who delivered the following decision on August 30, 2013.