Auditor’s certificate not sufficient evidence to conclude public interest claim was justified

In course of audit, Canada Revenue Agency (CRA) sent taxpayer two requirement letters, requiring him to produce documents and information. Taxpayer brought applications for judicial review to set aside requirements, and requested all material relied on to issue requirements. Minister of National Revenue served redacted certified record signed by CRA auditor. Minister brought applications under s. 37 of Canada Evidence Act, ancillary to judicial review applications, for orders prohibiting disclosure of redacted information on ground of public interest privilege. Taxpayer brought motion to cross-examine auditor. Minister’s application adjourned and taxpayer’s motion dismissed. Minister was to submit to court on confidential basis unredacted copies of all documents relied on in certified record for determination of whether redacted information would encroach on public interest. Auditor’s certificate did not provide sufficient evidentiary basis to conclude that public interest claim was justified. Taxpayer did not have standing or right to attend s. 37 hearing, which would be conducted in-camera. There was no right to cross-examine author of certificate. Cross-examination would be useless because taxpayer’s questions would be impeded by objections based on public interest privilege that had yet to be determined. Reasons that taxpayer provided for cross-examination established apparent case for disclosure of redacted information. 

Canada (Attorney General) v. Chad (2018), 2018 CarswellNat 1141, 2018 CarswellNat 1400, 2018 FC 319, 2018 CF 319, Simon Noël J. (F.C.).