On July 9, 2015, the Federal Court rendered an order in this file, granting a motion brought by the Information Commissioner who is an added party in this proceeding.
The main proceeding is an application for judicial review filed by Recall Total Information Management (“Recall”), pursuant to s. 44 of the Access to Information Act, to challenge CRA’s decision to disclose contract and tender information related to Recall and regarding the storage of the CRA’s tax files.
The week before the hearing scheduled for the application on May 6-7, 2015, Recall made a motion to file additional evidence, which the Court allowed. The hearing was rescheduled.
On the basis of Recall’s new evidence, CRA advised Recall, the Commissioner and the Court that it had reconsidered its original decision to release the information, based on the procedure set out in Porter Airlines Inc. v Canada (Attorney General), 2013 FC 780. CRA purported to issue a new decision, by which it would exempt from disclosure parts of records which it had already decided were not exempt from disclosure. Recall filed a notice of discontinuance based on its understanding that CRA’s original decision on disclosure was no longer operative and has been superseded by the second decision.
The Information Commissioner made a motion, seeking a ruling on the legal significance of CRA’s second decision. The Commissioner took the position that the CRA had no authority to issue a new or amended decision. The Court allowed the Commissioner’s motion.
The Court found that CRA’s second decision was a nullity. The Court found that the Porter Airlines decision had followed previous cases and that “the weight of the jurisprudence in this Court is that the second decision has no force and effect” The Court added: “Once a proceeding is initiated, it is the obligation of the Court to determine whether the exemptions to disclosure are applicable; it is not the Minister’s decision that determines the exemptions.”
The Court ordered the Minister of National Revenue to advise the Requestor of the position the CRA would now be taking in this proceeding.
The proceeding continues. A hearing date for this matter has been set for September 21–22, 2015.