Judgments

Decision Information

Decision Content

T-876-86 T-2270-86
Monica Lau (Plaintiff) v.
The Queen in right of Canada, as represented by the Minister of National Revenue (Defendant)
and
Monica Lau (Applicant)
v.
Public Service Staff Relations Board and Trea sury Board (Respondents)
INDEXED AS: LAu V. M.N.R.
Trial Division, Reed J.—Ottawa, October 23 and November 3, 1986.
Income tax — S. 241 proscribing disclosure of information obtained by or on behalf of M.N.R. — Plaintiff dismissed from employment as tax auditor with Department of National Revenue — Dismissal based on own tax return information — Whether use of information by M.N.R.'s officials contravening s. 241 — National Revenue officials not entitled to access to tax information for purposes of disciplining employees or other personnel matters — Income Tax Act, S.C. /970-71-72, c. 63, s. 241 (as am. by S.C. 1980-8/-82-83, c. 68, s. 117) — Financial Administration Act, R.S.C. 1970, c. F-10, s. 7.
Public service — Labour relations — Grievance — P.S.S.R.B. hearing — Motion to prohibit Board from receiving in evidence tax returns of Department of National Revenue employee dismissed for tax evasion — Whether giving of information violating non-disclosure provisions of Income Tax Act — Argued that plaintiff should be treated same as employees of other departments — Defendant arguing Act, s. 241 allowing disclosure of information in connection with administration of Act and employee discipline administration — Personnel matters not "proceedings relating to the adminis tration or enforcement" of Act — Reception of evidence not necessarily excess of Board's jurisdiction — Income Tax Act, S.C. 1970-71-72, c. 63, s. 241 (as am. by S.C. 1980-8/-82-83, c. 68, s. 117).
Judicial review — Prerogative writs — Prohibition — To prevent P.S.S.R.B. from receiving in evidence, at grievance hearing, income tax returns of employee dismissed for tax evasion — Writ of prohibition not available in circumstances — Reception of evidence not necessarily constituting excess of Board's jurisdiction.
Practice — Evidence — P.S.S.R.B. grievance hearing — National Revenue employee dismissed on basis of information in own income tax return — Convicted of tax evasion Admissibility of income tax returns and related information — Not violating Income Tax Act, s. 241 — Reception of evidence by Board, if proferred, not necessarily excess of jurisdiction — Income Tax Act, S.C. 1970-71-72, c. 63, s. 241 (as am. by S.C. 1980-81-82-83, c. 68, s. 117).
Practice — Pleadings — Motion to strike — Action for declaration Department of National Revenue's officials not entitled to disclose tax return information for use against own employees — Arguments supporting motion substantive in nature — Cannot be considered on motion to strike — Motion dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 17(1), 18 — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 24(2).
The plaintiff was discharged from her employment as a tax auditor with the Department of National Revenue. Her dis charge was based on information she had provided to the Department in her income tax returns. Prior to the hearing of her grievance by the Public Service Staff Relations Board, she raised a preliminary objection that the intended use by the Department's officials of the information obtained would vio late section 241 of the Income Tax Act. Section 241 prohibits any official from disclosing information obtained by or on behalf of the Minister of National Revenue except as author ized by the section. The plaintiff filed a statement of claim wherein she seeks, essentially, a declaration that since National Revenue employees are forbidden to disclose tax return infor mation with respect to employees of other departments, they should not be entitled to do so with respect to their own employees. The defendant's argument as to the merits is that the disciplining of an employee falls within the exception provided for in section 241, being part of the "administration of the Act" and that therefore disclosure is authorized.
The defendant's motion is for an order striking out the statement of claim on the grounds that it discloses no reason able cause of action and that the Court is without jurisdiction. The plaintiff's cross-motion is to amend her statement of claim to add a paragraph thereto and for a writ of prohibition.
Held, the motion to strike and the motion for a writ of prohibition should be dismissed. The motion to amend the statement of claim should be allowed.
To support its motion to strike, the defendant advanced the arguments that a declaratory action could not succeed: when it serves no purpose (the evidence, even if obtained illegally, would still be submitted to the Board); when academic or hypothetical matters are involved; and when to allow it would
interfere with proceedings in a criminal court. It was further argued that declaratory relief could not be granted with respect to procedural matters and that courts will not interfere with matters being dealt with by another court or tribunal and, finally, that since the Federal Court of Appeal had jurisdiction over the proceedings of the Board, it would be inappropriate for the Trial Division to grant a declaration related to the anticipated introduction of evidence before the Board by Na tional Revenue officials. All those arguments were, however, substantive in nature. They all relate to the merits of the claim and could not properly be considered on a motion to strike. The defendant's additional argument, that the operation of section 18 of the Federal Court Act precluded the granting of declara- tory relief against the Crown, its servants or agents in other circumstances, was also a substantive one. The motion to strike was dismissed.
The defendant submitted that what was being asserted by the proposed amendment to the statement of claim was a disguised wrongful dismissal claim which the Court could not entertain. The Court was not persuaded that this was so patently obvious that the question should not be left for a trial judge to consider. The motion to amend the statement of claim was therefore allowed.
The motion for a writ of prohibition preventing the Board from receiving the tax return information was dismissed. "Pro- ceedings relating to the administration or enforcement of [the] Act", which are excepted from the general rule against disclo sure, do not encompass the disciplining of employees or other personnel matters relating to National Revenue officials. The latter, when operating as employer pursuant to their delegated authority from Treasury Board, are not entitled to have access to tax information for personnel purposes. Nevertheless, in the present circumstances, a writ of prohibition cannot issue. The case is not one where the reception of improper evidence would necessarily constitute an excess of jurisdiction.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Bell Canada v. Attorney General of Canada, [1978] 2 F.C. 801 (T.D.); Bayer A.G. v. Commissioner of Patents et al. (1984), 79 C.P.R. (2d) 166 (F.C.T.D.); The Royal Bank of Scotland Ltd, v Citrusdal Investments Ltd, [1971] 3 All ER 558 (Ch.D.); Chaffey v. Mount Cook Air Services Ltd., [1969] N.Z.L.R. 25 (S.C.); Samuel Varco v. The Queen et al. (1978), 87 D.L.R. (3d) 522 (F.C.T.D.); Terrasses Zarolega Inc. et al. v. Régie des installations olympiques, [1981] 1 S.C.R. 94; 124 D.L.R. (3d) 204; Hollinger Bus Lines Limited v. Ontario Labour Relations Board, [1951] O.R. 562 (H.C.); Terrace View Apartments Ltd. v. Attorney-General of Nova Scotia (1978), 26 N.S.R. (2d) 490 (S.C.); Cassidy v. Stewart, [ 1928] 3 D.L.R. 879 (Ont. S.C.); R. v. Wray, [1971] S.C.R. 272; R. v. Collins (1983), 33 C.R. (3d) 130 (B.C.C.A.); Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Jamieson et al. v. Attorney General
of British Columbia, [1971] 5 W.W.R. 600 (B.C.S.C.); Solosky v. R., [1978] 2 F.C. 632; 86 D.L.R. (3d) 316 (C.A.); Connaught Laboratories Ltd. v. The Queen, Fed eral Court, Trial Division, T-2040-78, judgment dated July 11, 1978, not reported; Operation Dismantle Inc. et al. v. The Queen et al., [ 1985] 1 S.C.R. 441; Imperial Tobacco Ltd. v. Attorney-General, [1981] A.C. 718 (H.L.); Affiliated Offices Ltd. et al. v. Bud Cullen et al. (1976), 76 DTC 6279 (F.C.T.D.); aff d on other grounds in [1982] I S.C.R. 609 (sub nom. Fee et al. v. Bradshaw et al.); Maritime Telegraph & Telephone Co. Ltd. v. C.L.R.B., [1976] 2 F.C. 343 (T.D.); Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Marga- ret, Duchess of Argyll (Feme Sole) v. Duke of Argyll, [1965] 1 All E.R. 611 (Ch.D.); Attorney-General y Jonathan Cape Ltd, [ 1975] 3 All ER 484 (Q.B.D.).
COUNSEL:
N. J. Schultz and Gerald R. Morin, Q.C. for plaintiff.
L. P. Chambers, Q.C. and Jacqueline Morgan for defendant.
SOLICITORS:
Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for orders ren dered in English by
REED J.: The defendant seeks to strike out the plaintiff's statement of claim on the grounds: that it discloses no cause of action; that this Court is without jurisdiction. The plaintiff filed a cross- motion to amend the statement of claim and add a paragraph thereto as well as a motion seeking a writ of prohibition.
The facts which gave rise to these proceedings are not disputed. The plaintiff was discharged from her employment as a tax auditor with the Department of National Revenue on August 28, 1985. She was subsequently charged with tax eva sion and pleaded guilty to that charge on Decem- ber 3, 1985. Her discharge was based on informa tion she had provided to the Department of National Revenue in her income tax returns of 1981, 1982 and 1983. On August 29, 1985 after receiving her letter of discharge, the plaintiff'filed
a letter of grievance. That grievance finally came before the Public Service Staff Relations Board on March 5, 1986. Prior to the hearing by the Board and at the commencement of that hearing, the plaintiff's representative raised a preliminary objection. The objection was with respect to evi dence it was anticipated the employer would introduce: the plaintiff's income tax returns and other information related thereto. It is argued that the giving of such information by officials of the Department of National Revenue would constitute a violation of section 241 of the Income Tax Act [S.C. 1970-71-72, c. 63 (as am. by S.C. 1980-81-82-83, c. 68, s. 117)]:
241. (1) Except as authorized by this section, no official or authorized person shall
(a) knowingly communicate or knowingly allow to be com municated to any person any information obtained by or on behalf of the Minister for the purpose of this Act ... or
(b) knowingly allow any person to inspect or to have access to any book, record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act ...
(2) Notwithstanding any other Act or law, no official or authorized person shall be required, in connection with any legal proceedings,
(a) to give evidence relating to any information obtained by or on behalf of the Minister for the purposes of this Act ... or
(b) to produce any book, record, writing, return or other document obtained by or on behalf of the Minister for the purposes of this Act ....
(3) Subsections (1) and (2) do not apply in respect of criminal proceedings, either by indictment or on summary conviction, under an Act of the Parliament of Canada, or in respect of proceedings relating to the administration or enforce ment of this Act ....
I note that, while it is not at all clear from the proceedings and other evidence on file, it has been assumed by all parties, for the purposes of this case, that the information in question was obtained by the National Revenue officials from informa tion supplied by the claimant as a taxpayer. It has been assumed that the information was obtained by the National Revenue officials in question as a result of that Department's role in the administra tion and enforcement of the Income Tax Act and not as the result of some other role or from some other source. The argument put by the plaintiff's representative is simple: the plaintiff, as an employee of the Department of National Revenue,
should be in no different position from the employees of other government departments; offi cials of National Revenue would not be able to disclose tax return information with respect to the employees of other departments; they should not be entitled to do so with respect to employees of their own Department. I quote from counsel's written argument:
... Her Majesty's tax collectors cannot having obtained from a person who also happens to be an employee information wearing their tax collector hats take off those hats and, putting on their employer hats, use that same information to discipline that person as an employee.
Counsel for the defendant's argument with respect to the merits is twofold: (1) section 241 expressly allows officials of National Revenue to disclose information "in the course of [their] duties in connection with the administration or enforcement" of the Income Tax Act (subsection 241(4)); and the disciplining of an employee is part of the administration of the Act; (2) even if the disclosing of such information to the Public Service Staff Relations Board in this case could be an offence under section 241 of the Act, it is the criminal sanctions thereunder which should be left to operate and it would be premature for this Court to make any anticipatory type declaration.
I should note that it is not the merits or demerits of the discharge that is being attacked in these proceedings. It is the use which has been made and which it is apprehended will be made of the plain tiffs tax returns and related information that is in issue. If the information being presented to the Board came from public documents filed in rela tion to the tax evasion charges, there would be no dispute (except perhaps before the Board with respect to relevancy) as to the appropriateness of their disclosure. The issue is thus a very narrow one relating to the actions of National Revenue employees.
The plaintiff's statement of claim seeks a decla ration. The declaration sought is variously framed as: that information obtained under the Income Tax Act may not be communicated except as authorized by section 241; that section 241 prohib-
its the defendant's communication of information obtained under the Act in the course of his duties to supervise and control employees; the defen dant's intended use of the information obtained from the plaintiff's income tax returns would con stitute an offence. While these may not be felici- tously framed and the last, at least, seems to be a kind of declaration the Court would not give, the thrust is, as noted above, to elicit from the Court a declaration that Revenue Canada, as employer, is in the same position as any other government departments with respect to the use of tax return information concerning its employees.
Damages are also claimed in the statement of claim, and the amendment the plaintiff seeks to add would set out as the underpinning for that claim an allegation that the defendant (its servants or agents) acted in wilful disregard of its duty not to disclose information contained in the plaintiff's tax returns and in wilful disregard to the damage caused thereby.
On reviewing the defendant's arguments with respect to their motion to have the plaintiff's state ment of claim struck out, I find it quite remark able that they have chosen to proceed in this fashion. The arguments being made are properly ones that should be brought in the hearing of the claim itself, not by way of a summary proceeding on a motion to strike.
The defendant argues that the statement of claim discloses no reasonable cause of action because:
(1) Declaratory actions are not rendered with respect to procedural matters and the courts will not interfere by way of declaration with matters being dealt with by another court or tribunal—in support are cited: Bell Canada v. Attorney General of Canada, [1978] 2 F.C. 801 (T.D.), at pages 805-806; Bayer A.G. v. Commissioner of Patents et al. (1984), 79 C.P.R. (2d) 166 (F.C.T.D.), at page 168; The Royal Bank of Scotland Ltd, v Citrusdal Investments Ltd, [1971] 3 All ER 558
(Ch.D.); Chaffey v. Mount Cook Air Services Ltd., [1969] N.Z.L.R. 25 (S.C.); Samuel Varco v. The Queen et al. (1978), 87 D.L.R. (3d) 522 (F.C.T.D.); Terrasses Zarolega Inc. et al. v. Régie des installations olympiques, [1981] 1 S.C.R. 94, at pages 102-105; 124 D.L.R. (3d) 204, at pages 210-212; Hollinger Bus Lines Limited v. Ontario Labour Relations Board, [1951] O.R. 562 (H.C.), at pages 570-571; Terrace View Apartments Ltd. v. Attorney-General of Nova Scotia (1978), 26 N.S.R. (2d) 490 (S.C.), at pages 507-508.
(2) Declarations will not be granted when they serve no purpose and in this case, even if the evidence was illegally obtained by offices of Reve nue Canada, that would not prevent it being sub mitted to the Board—in support are cited: Ter- rasses Zarolega Inc. et al. v. Régie des installations olympiques, supra, at pages 106-107 S.C.R.; 213 D.L.R.; Cassidy v. Stewart,* [1928] 3 D.L.R. 879 (Ont. S.C.), at page 883; R. v. Wray, [1971] S.C.R. 272, at page 287; Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] subsection 24(2); R. v. Collins (1983), 33 C.R. (3d) 130 (B.C.C.A.), at pages 142, 149-150.
(3) Declarations are not granted with respect to academic or hypothetical matters—in support are cited: Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Jamieson et al. v. Attorney General of British Columbia, [1971] 5 W.W.R. 600 (B.C.S.C.), at pages 606 and 608; Solosky v. R., [1978] 2 F.C. 632, at pages 633-634; 86 D.L.R. (3d) 316 (C.A.), at page 318; Connaught Laboratories Ltd. v. The Queen, Federal Court, Trial Division, T-2040-78, dated July 11, 1978, unreported, at page 13; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at page 447.
(4) Declarations will not be granted when they interfere with the procedure in the criminal courts—in support are cited: Imperial Tobacco
* Editor's Note: The name "Stewart" is spelled "Stuart" on the first page of the case.
Ltd. v. Attorney-General, [1981] A.C. 718 (H.L.), at pages 742, 746, 752; Affiliated Offices Ltd. et al. v. Bud Cullen et al. (1976), 76 DTC 6279 (F.C.T.D.) (aff d on other grounds in [1982] 1 S.C.R. 609 [sub nom. Fee et al. v. Bradshaw et al.]).
(5) A declaration should not be granted because the Federal Court of Appeal has jurisdiction over the proceedings of the Board and, therefore, it is not appropriate to grant a declaration relating to the apprehended behaviour of the officers of Na tional Revenue before that Board.
All of these arguments are substantive argu ments as to whether or not a declaration should, in fact, issue. They are arguments that relate to the merits of the claim and whether and in what circumstances a court's discretion to grant a decla ration will be exercised. They are not arguments properly brought on a motion to strike.
The defendant's arguments with respect to lack of jurisdiction are of a similar substantive nature. It is argued that since section 18 gives the Federal Court jurisdiction to grant declarations with respect to federal boards, commissions and tri bunals, Parliament intended to exclude from sub section 17(1) jurisdiction to grant declaratory relief against the Crown, its servants or agents, in other circumstances (an argument that seems spurious at best). It is argued that this Court is without jurisdiction because declarations are only granted with respect to a plaintiff's legal rights and a defendant's legal obligations. It is argued that declarations are not granted to restate the law or to answer hypothetical or premature questions. Clearly, these are arguments that relate to the merits of the claim, not jurisdiction. The defen dant's motion to strike will, therefore, be dismissed with costs.
With respect to the plaintiff's motion to amend her statement of claim, I have not been persuaded that there is any good reason why it should not be
allowed. It may be, as counsel for the defendant argues, that what is thereby being asserted is a disguised wrongful dismissal claim, which it is not within this Court's jurisdiction to entertain. But I am not persuaded that this is so patently obvious that the question should not be left for a trial judge to consider. It is conceivable that the dismis sal could be justified but the disclosure of the tax returns still be a wilful or negligent act causing damages (though damages might be difficult to prove). In any event, in my view, it is more appro priate to decide this issue after hearing the evi dence. No prejudice will be visited on the defendant by allowing the amendment to the state ment of claim, at this stage of the proceedings. It will better enable all the issues in the case to be decided.
That leaves for consideration the plaintiff's application for a writ of prohibition to prevent the Board receiving the tax information.
Counsel for the defendant argues that the dis closure of information by National Revenue offices falls within the exemption set out in subsec tion 241(3) because the disciplining of Revenue Canada employees is part of the "administration of the Income Tax Act". I am not persuaded that that is a valid argument.
In my view "proceedings relating to the administration or enforcement" of the Income Tax Act referred to in subsection 241(3) do not encom pass the disciplining of employees or other person nel matters relating to National Revenue officials, any more than the administration of the Aeronau tics Act [R.S.C. 1970, c. A-3] encompasses per sonnel matters relating to officials of the Depart ment of Transport. As counsel for the plaintiff points out, Treasury Board is the branch of gov ernment which has responsibility as employer with respect to government employees. Some of Trea sury Board's authority may be delegated to deputy heads of departments pursuant to section 7 of the Financial Administration Act, R.S.C. 1970, c. F-10 but that does not subtract from Treasury Board's primary responsibility in this area. Coun sel argues that Treasury Board itself has no right of access to the information in question, nor do its
delegates in other departments. Equally then, it is argued that when National Revenue officials are operating as employer pursuant to their delegated authority from Treasury Board, they are not en titled to have access to the tax information for such personnel purposes. I agree with that contention.
Nevertheless, I cannot find that a writ of prohi bition properly lies against the Board in this case. Counsel for the plaintiff argues that if the Board accept the evidence, it would be exceeding its jurisdiction and, therefore, prohibition lies to pre vent that occurring. He argues that in the analo gous cases of solicitor-client privilege and Crown privilege, a writ of prohibition will lie. He notes that counsel for the defendant in his memorandum of law respecting the motion to strike (page 27, paragraph 48) admitted that a writ of prohibition was a possibility.
Mr. Justice Addy's comments in Bell Canada v. Attorney General of Canada, [1978] 2 F.C. 801 make it clear that in some cases the reception of improper evidence may constitute an excess of jurisdiction and in such cases, prohibition will lie. Also, if the challenge to jurisdiction were on a clearly fundamental ground such as lack of consti tutional competence as in Maritime Telegraph & Telephone Co. Ltd. v. C.L.R.B., [1976] 2 F.C. 343 (T.D.), or a clear lack of statutory jurisdiction as in Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, prohibition would lie. But in this case, I cannot say that the reception of the evidence, if it is proferred, by the Board would necessarily constitute an excess of jurisdiction. I have not been referred to any jurisprudence which requires, for example, the Board to monitor and refuse on its own motion evidence such as that in issue in this case. Certainly, if the evidence were proferred with the consent of the parties, there would be no excess of jurisdiction. Consent of the parties in the case of a lack of constitutional or statutory jurisdiction does not cure the defect.
The plaintiff's concern is not so much with the anticipated conduct of the Board as it is with the anticipated conduct of officials of National Reve nue. Counsel for the plaintiff recognizes this to be the case. He originally framed the action as one seeking declaratory relief: a declaration relating to the anticipated conduct of the National Revenue employees. he candidly stated that the claim for a writ of prohibition against the Board was brought for tactical reasons "to ensure that no part of this case falls between the cracks". I think counsel's original conception of the appropriate remedy was correct. As he points out, there are a number of cases in which an injunction has issued to prevent the disclosure of privileged information by private individuals: Margaret, Duchess of Argyll (Feme Sole) v. Duke of Argyll, [1965] 1 All E.R. 611 (Ch.D.); Attorney-General y Jonathan Cape Ltd, [1975] 3 All ER 484 (Q.B.D.). An injunction does not in most instances lie against the Crown. There fore, as counsel concluded an action for declarato- ry relief is the appropriate one to bring.
The motion to strike will be dismissed. The motion to amend the statement of claim will be allowed. The motion for a writ of prohibition to prevent the Board using any income tax evidence, should it be proferred, will be dismissed.
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