Daley v. Canada (Attorney General) Toronto Tax Lawyer Case Comment Part 1

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

 

Part I: Case Facts and Legal Issues before the Federal Court

Our top Toronto Tax Lawyers have prepared this three part case comment. Part I will lay out the facts and issues, Part II will discuss the issue of procedural fairness, and Part III will discuss whether the decision of the Office of the Privacy Commissioner of Canada (the “OPC”) was reasonable.

Summary – Daley v. Canada (Attorney General)

In Daley v Canada (Attorney General) 2016 FC 1154 the Federal Court of Canada (the “Court”) found that the Office of the Privacy Commissioner of Canada beached the rules of natural justice and its duty of fairness towards Ms. Daley. The Court also found that the OPC erred in concluding that Ms. Daley was non-compliant with the Privacy Act.

Facts Daley v Canada (Attorney General)

Ms. Daley was retained by the Canada Revenue Agency (the “CRA”) to represent Mr. F. Mr. F is a CRA tax investigator that participated in the criminal tax prosecution of Mr. H for tax evasion. Before trial, Mr. H successfully challenged five search warrants issued against him. Mr. H then started civil proceedings against Mr. F and other crown witnesses.

Ms. Daley advised that Mr. O, a foreign witness, retain Ms. T to represent him against Mr. H. Mr. O did business with Mr. H and was interviewed by Mr. F during the tax evasion investigation. At Ms. T’s request, Ms. Daley provided her with a transcript of Mr. O’s interview with Mr. F.

Ms. Daley was later informed by a colleague at work that she was found to have breached the Privacy Act. Mr. H had complained about the disclosure of the transcript as it contained his personal information.

Ms. Daley wrote to the Office of the Privacy Commissioner of Canada stating that she was not aware of the complaint and that she had not been given a chance to respond to Mr. H’s allegations. Ms. Daley included arguments about how the information transmitted to Ms. T was public in nature and requested that the Office of the Privacy Commissioner of Canada reopen the investigation into the complaint. The Office of the Privacy Commissioner of Canada invited her to submit further information on the public nature of the information; however, the Office of the Privacy Commissioner of Canada stated there was insufficient grounds to reopen the investigation and that the matter was closed. Ms. Daley applied to the Court for judicial review of the decision of the Office of the Privacy Commissioner of Canada.

The Issues

Ms. Daley raised three issues at Court:

• What is the applicable standard of review?
• Did the OPC breach the rules of natural justice and its duty of fairness toward Ms. Daley?
• Did the OPC err in concluding that Ms. Daley’s disclosure was unauthorized under the Privacy Act or the Income Tax Act (the “ITA”)?

This article will focus on the second and third issues and will not discuss the applicable standards of review, which were held to be correctness for the procedural fairness issue and reasonableness for the disclosure issue.

As you can see, Ms. Daley was blindsided by the Office of the Privacy Commissioner of Canada’s report. She was found to have breached the Privacy Act before she was even aware that her conduct was being investigated. Individuals that are affected by administrative decisions may be owed a duty of fairness. The CRA is an administrative body and our experienced Toronto Tax Lawyers can advise you if the Federal Court is the appropriate place to take your legal issue. For more information what procedural fairness is and what protections you may be entitled to, please continue to Part II of this case comment.
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