Date: 20220223  
Docket: T-252-19  
T-254-19  
T-258-19  
T-259-19  
T-261-19  
T-262-19  
Citation: 2022 FC 236  
Ottawa, Ontario, February 23, 2022  
PRESENT: The Honourable Mr. Justice Southcott  
BETWEEN:  
Docket: T-252-19  
Applicant  
THE MINISTER OF NATIONAL REVENUE  
and  
NADER GHERMEZIAN  
Respondent  
Docket: T-254-19  
Applicant  
AND BETWEEN:  
THE MINISTER OF NATIONAL REVENUE  
and  
MARC VATURI  
Respondent  
Page: 2  
AND BETWEEN:  
AND BETWEEN:  
AND BETWEEN:  
AND BETWEEN:  
Docket: T-258-19  
Applicant  
THE MINISTER OF NATIONAL REVENUE  
and  
GHERFAM EQUITIES INC  
Respondent  
Docket: T-259-19  
Applicant  
THE MINISTER OF NATIONAL REVENUE  
and  
PAUL GHERMEZIAN  
Respondent  
Docket: T-261-19  
Applicant  
THE MINISTER OF NATIONAL REVENUE  
and  
RAPHAEL GHERMEZIAN  
Respondent  
Docket: T-262-19  
Page: 3  
THE MINISTER OF NATIONAL REVENUE  
Applicant  
and  
JOSHUA GHERMEZIAN  
Respondent  
JUDGMENT AND REASONS  
I.  
Overview  
[1]  
This decision relates to six applications by the Minister of National Revenue [the  
Minister], seeking compliance orders under s 231.7 of the Income Tax Act, RSC 1985, c 1 (5th  
Supp) [the Act].  
[2]  
The Respondents are five individuals, all members of the Ghermezian extended family,  
and a related corporation, Gherfam Equities Inc. [Gherfam]. Nader Ghermezian (the Respondent  
in Court file number T-252-19) and Raphael Ghermezian (the Respondent in Court file number  
T-261-19) are brothers. Joshua Ghermezian (the Respondent in Court file number T-262-19) is  
the son of Raphael Ghermezian, and Paul Ghermezian (the Respondent in Court file number T-  
259-19) is the nephew of Nader Ghermezian and Raphael Ghermezian. Marc Vaturi (the  
Respondent in Court file number T-254-19) is the son-in-law of Nader Ghermezian.  
Page: 4  
[3]  
Each of the Minister’s applications seeks an order compelling the relevant Respondent to  
provide documents and/or information previously sought by the Minister under s 231.1 and/or s  
231.2 of the Act.  
[4]  
These six applications were heard together, by videoconference employing the Zoom  
platform, on January 24 to 27, 2022. As they raise many common issues, these Reasons address  
all six applications.  
[5]  
As explained in greater detail in the Reasons below, these applications are granted,  
subject to the remaining steps I have outlined for applying my conclusions surrounding the  
Respondents’ success in some of their defence arguments to the development of the form of  
compliance order in each application.  
II.  
Background  
[6]  
First, a few words about nomenclature. As set out in more detail later in these Reasons,  
most of these applications rely on both s 231.1 and s 231.2 of the Act. The issues in these  
applications include disputes between the parties on the scope of the powers granted to the  
Minister under s 231.1 and s 231.2. For purposes of these Reasons, I will adopt the language  
employed by the Minister in her written submissions, referring to the invocation of s 231.1 as a  
“Request” and the invocation of s 231.2 as a “Requirement”. I note this is consistent with the  
language employed by Justice Fuhrer in Tellza Inc v Canada (National Revenue), 2021 FC 853  
[Tellza], in relation to the comparable provisions of the Excise Tax Act, RSC 1985, c E-15  
[ETA]). However, I emphasize these terms are adopted solely to enhance the readability of these  
Page: 5  
Reasons and are not intended to be terms of art or to suggest that a Request issued under s 231.1  
gives rise to less compulsion than a Requirement issued under s 231.2. Similarly, without  
intending to ascribe any technical significance to it, I will employ the term “Demands” to  
encompass generically both Requests and Requirements.  
[7]  
The Minister commenced each of these six applications by a Notice of Summary  
Application dated February 7, 2019. In each application, the Minister asserts that: she issued  
Requests and/or Requirements to the relevant Respondent requiring the provision of documents  
and/or information related to the administration or enforcement of the Act; the Respondent has  
failed to provide all such documentation and/or information; and the Respondent has not asserted  
any claim for solicitor-client-privilege in relation thereto. The Minister asserts that she has  
therefore met the statutory conditions for the Court to issue a compliance order under s 231.7 of  
the Act, ordering the Respondent to provide the outstanding documents and/or information.  
[8]  
In each application, the Minister has filed an Amended Notice of Summary Application  
dated April 7, 2021 [Amended Notice], which specified the particular Demands, or portions  
thereof, that the Minister considered to be still outstanding. In the course of the hearing, the  
Minister further clarified or refined her Demands in each application, in some cases further  
reducing the Demands or portions thereof for which she is seeking a compliance order.  
[9]  
In each application, the Minister relies upon an affidavit sworn in July 2019 by Andrew  
Bowe, who was, at the time, an International and Large Business Case Manager with the Canada  
Revenue Agency [CRA] and had conduct of the audit matters in relation to the Respondents. In  
Page: 6  
T-254-19 (with Mr. Vaturi as the Respondent), Mr. Bowe also affirmed a Supplementary  
Affidavit on April 7, 2021 [the Supplementary Affidavit]. The Respondents have cross-examined  
Mr. Bowe on his affidavits, and the relevant transcripts have been included in the record in each  
application. The Respondents have not otherwise filed any evidence in these proceedings.  
[10] In opposing these applications, the Respondents rely in part on arguments surrounding  
the admissibility of or, alternatively, the weight that should be afforded to Mr. Bowe’s evidence.  
In the proceedings related to Nader Ghermezian, Raphael Ghermezian, and Marc Vaturi, the  
Respondents had previously filed motions to strike Mr. Bowe’s affidavits and dismiss the  
applications. By Order dated December 15, 2021, Prothonotary Aalto adjourned these motions,  
concluding that the issues raised therein should be argued at the hearing of the applications. The  
parties presented their arguments on these issues at the commencement of the hearings on  
January 24, 2021. This decision will address those arguments.  
[11] The Respondents also raise a number of other issues in support of their position that the  
applications should be dismissed. Most of the issues are common to some or all of the  
applications, although there are also a small number of issues specific to individual applications.  
These Reasons will first address the common issues and identify any general conclusions that  
can be reached without individually canvassing each application, as well as apply those  
conclusions to the applications, to the extent it is possible to do so. I will then turn to the  
individual applications, applying the general conclusions to each application where I have not  
done so already and addressing any additional issues specific to each application.  
Page: 7  
III.  
Issues  
[12] The following issues, common to some or all of the applications, have been raised for the  
Court’s adjudication:  
A. Whether the affidavits of Andrew Bowe should be struck out or, in the  
alternative, afforded little weight;  
B. Whether the Respondents were required to provide documents and/or  
information in response to a Request issued under s 231.1 of the Act;  
C. Whether the individuals who issued the Demands were authorized to do so;  
D. Whether the Respondents were properly given notice of the Demands;  
E. Whether the Demands provided a reasonable time for compliance;  
F. Whether the Demands relate to one or more unnamed persons, requiring the  
Minister to seek prior judicial authorization under s 231.2(3) of the Act;  
G. Whether the Demands raise ambiguity as to whether their recipient is the same  
as the Respondent;  
H. Whether the Demands improperly sought the production of foreign-based  
information or documents within the meaning of s 231.6 of the Act;  
I. If the Court determines that any compliance orders should be issued, whether  
such orders should contain an exclusion for documents and information  
protected by solicitor-client privilege;  
Page: 8  
J. If the Court concludes that a compliance order should not be issued in relation  
to a portion of a Demand, whether the Court has the authority to sever that  
portion and issue an order in relation to the remainder of the Demand; and  
K. Whether certain Requirements were ineffective because the Respondents are  
not residents of Canada.  
IV.  
Analysis  
A. General Principles Regarding Compliance Orders Under s 231.7  
[13] Before turning to the individual issues, it is useful to identify some general principles  
relevant to applications under s 231.7 of the Act, the text of which reads as follows:  
Compliance order  
Ordonnance  
231.7 (1) On summary  
231.7 (1) Sur demande  
application by the Minister, a sommaire du ministre, un juge  
judge may, notwithstanding  
subsection 238(2), order a  
peut, malgré le paragraphe  
238(2), ordonner à une  
person to provide any access, personne de fournir l’accès,  
assistance, information or  
document sought by the  
Minister under section 231.1  
or 231.2 if the judge is  
satisfied that  
l’aide, les renseignements ou  
les documents que le ministre  
cherche à obtenir en vertu des  
articles 231.1 ou 231.2 s’il est  
convaincu de ce qui suit :  
(a) the person was  
a) la personne n’a pas  
fourni l’accès, l’aide, les  
renseignements ou les  
documents bien qu’elle en  
soit tenue par les articles  
231.1 ou 231.2;  
required under section  
231.1 or 231.2 to provide  
the access, assistance,  
information or document  
and did not do so; and  
(b) in the case of  
b) s’agissant de  
information or a  
document, the information  
renseignements ou de  
documents, le privilège  
Page: 9  
or document is not  
des communications entre  
client et avocat, au sens  
du paragraphe 232(1), ne  
peut être invoqué à leur  
égard.  
protected from disclosure  
by solicitor-client privilege  
(within the meaning of  
subsection 232(1)).  
Notice required  
Avis  
(2) An application under  
subsection (1) must not be  
heard before the end of five  
clear days from the day the  
(2) La demande n’est entendue  
qu’une fois écoulés cinq jours  
francs après signification d’un  
avis de la demande à la  
notice of application is served personne à l’égard de laquelle  
on the person against whom  
the order is sought.  
l’ordonnance est demandée.  
Judge may impose  
conditions  
Conditions  
(3) A judge making an order  
under subsection (1) may  
impose any conditions in  
respect of the order that the  
judge considers appropriate.  
(3) Le juge peut imposer, à  
l’égard de l’ordonnance, les  
conditions qu’il estime  
indiquées.  
Contempt of court  
Outrage  
(4) If a person fails or refuses (4) Quiconque refuse ou fait  
to comply with an order, a  
judge may find the person in  
contempt of court and the  
person is subject to the  
défaut de se conformer à une  
ordonnance peut être reconnu  
coupable d’outrage au  
tribunal; il est alors sujet aux  
processes and the punishments procédures et sanctions du  
of the court to which the judge tribunal l’ayant ainsi reconnu  
is appointed.  
coupable.  
Appeal  
Appel  
(5) An order by a judge under (5) L’ordonnance visée au  
subsection (1) may be  
appealed to a court having  
appellate jurisdiction over  
paragraphe (1) est susceptible  
d’appel devant le tribunal  
ayant compétence pour  
decisions of the court to which entendre les appels des  
the judge is appointed. An  
appeal does not suspend the  
décisions du tribunal ayant  
rendu l’ordonnance. Toutefois,  
execution of the order unless it l’appel n’a pas pour effet de  
is so ordered by a judge of the suspendre l’exécution de  
court to which the appeal is  
made.  
l’ordonnance, sauf ordonnance  
Page: 10  
contraire d’un juge du tribunal  
saisi de l’appel.  
[14] As is evident from s 231.7(1), the Minister’s recourse to a compliance order is premised  
on the Minister previously having sought access, assistance, information or documentation under  
ss 231.1 or 231.2. The text of those sections (which, together with other provisions considered in  
these Reasons, are set out in full in Appendix “A”), will be canvassed later in this decision. For  
present purposes, it is sufficient to identify that, in the context of Canada’s self-assessment  
system for the collection of income tax under the Act, ss 231.1 and 231.2 form part of the broad  
suite of powers that Parliament has conferred on the Minister to obtain information and/or  
documentation from taxpayers and third parties to verify self-assessments (see R v McKinlay  
Transport Ltd, [1990] 1 SCR 627, 68 DLR (4th) 568 [McKinlay] at para 18 (referencing s  
231(3), which was the predecessor to s 231.2(1)).  
[15] When a person who is subject to a demand under ss 231.1 or 231.2 does not comply with  
that demand, s 231.7 entitles the Minister to apply to the Federal Court for an order compelling  
compliance. Consistent with the language of s 231.7(1), the Federal Court of Appeal explained in  
Minister of National Revenue v Lee, 2016 FCA 53 [Lee] at para 6 that the Court must be satisfied  
of three points before granting a compliance order:  
i)  
The person against whom the order is sought was required under section 231.1  
or 231.2 of the Act to provide the access, assistance, information or  
documents sought by the Minister;  
ii) Although the person was required to provide the information or documents  
sought by the Minister, he or she did not do so; and,  
iii) The documents or information sought is not protected from disclosure by  
solicitor-client privilege as defined within the Act.  
Page: 11  
[16] The Respondents refer the Court to Minister of National Revenue v Derakhshani, 2009  
FCA 190 [Derakhshani], in which the Federal Court of Appeal rejected the Minister’s argument  
that, when presented with an application under s 231.2(3) of the Act, a judge has no discretion to  
reject the application if the conditions prescribed by that section are met (at paras 17-19). While  
that case involved an application under s 231.2(3) to authorize the Minister to a serve a  
requirement related to an unnamed person, I agree with the Respondents’ submission that the  
Court’s analysis of whether it retains discretion even where the statutory conditions are met  
usefully informs the interpretation of s 231.7 as well. Both sections require that the judge be  
satisfied that the statutory conditions for the application are met and provide the judge granting  
an order the authority to impose any conditions the judge considers appropriate. As these are the  
factors that the Court in Derakhshani took into account in identifying the existence of its  
discretion, I agree that judicially exercised discretion exists under s 231.7 as well.  
[17] Indeed, I do not understand the Minister to dispute this point in the case at hand. In  
support of her position on the “severance” issue (canvassed later in these Reasons), that the  
Court has the authority to issue an order in relation to a portion of a Demand or application, the  
Minister refers to the Court’s discretion to impose such conditions as it considers appropriate.  
[18] Because of the potentially serious consequences flowing from the failure to obey a  
compliance order, including fines and/or imprisonment, the jurisprudence explains that the Court  
should be satisfied that the statutory conditions of s 231.7 have been “clearly met” before  
exercising its discretion to grant an order (see Minister of National Revenue v Chamandy, 2014  
Page: 12  
FC 354 [Chamandy] at para 35; Canada (Minister of National Revenue) v SML Operations  
(Canada), 2003 FC 868 [SML Operations] at para 15).  
[19] The Respondents also rely on Derakhshani (at paras 16-17) to support their position that  
the use of the phrase “if the judge is satisfied” in s 231.7 imposes on the Minister an onus to  
adduce and prove all the facts required to satisfy the conditions for the issuance of the  
compliance order. In my view, Derakhshani does not stand for this proposition. Paragraphs 16  
and 17 rely on that phrase to conclude that the judge has discretion in an application under s  
231.7, but do not speak to which party bears the onus in such an application.  
[20] The Respondents also rely on this Court’s decision in Ghermezian v Canada (Attorney  
General), 2020 FC 1137 [Ghermezian] at paras 24-25, to support their position that the Minister  
bears the burden of proof. Again, that authority does not stand for the proposition that the  
Respondents advance. Ghermezian involved a number of applications for judicial review,  
brought by some of the same parties who are Respondents in the present applications,  
challenging a number of Requirements issued by the Minister under s 231.2(1) of the Act. Those  
applicants relied on Capital Vision Inc v Minister of National Revenue, 2002 FCT 1317 [Capital  
Vision] to support their position that the Minister bore the burden of proving her compliance with  
s 231.2(1). This Court rejected that contention, observing that Capital Vision held that the  
Minister must comply with the Act but did not state a conclusion on the applicable burden of  
proof.  
Page: 13  
[21] That said, I do not understand the Minister to dispute that, as the party seeking a  
compliance order under s 231.7, she has the burden of satisfying the statutory conditions as set  
out in Lee, although she submits that whether the requested material is privileged is relevant to  
the analysis only if a respondent actually asserts a claim of privilege (see Lee at para 9). I accept  
that the overall legal burden in the application resides with the Minister, and I concur that  
privilege factors into the analysis only if raised by a respondent, who then bears the burden on  
that issue (see Redhead Equipment Ltd v Canada (Attorney General), 2016 SKCA 115 at para  
31; Minister of National Revenue v Atlas Tube Canada ULC, 2018 FC 1086 at para 32).  
[22] However, the location of the burden becomes more nuanced in connection with particular  
defence arguments raised by the Respondents in these applications. Which party bears the  
applicable burden is potentially relevant to several of the issues raised in the Respondents’  
arguments, including: (a) authority to issue the Demands; (b) proper notice of the Demands to  
the Respondents; (c) the reasonableness of the time given for compliance with the Demands; and  
(d) whether the Demands improperly sought the production of foreign-based material. The  
Respondents submit that the Minister bears the burden on all the issues. In contrast, the Minister  
urges the Court to be guided by a general evidentiary principle that the party who alleges a  
proposition, and with whom the evidence is likely to reside, bears the applicable burden. Where  
necessary, I will return to the question of the burden of proof when considering the individual  
issues.  
B. Whether the affidavits of Andrew Bowe should be struck out or, in the  
alternative, afforded little weight  
Page: 14  
[23] The Respondents in T-252-19 (Nader Ghermezian), T-254-19 (Marc Vaturi) and T-261-  
19 (Raphael Ghermezian) argue that the Court should strike the affidavits of the Minister’s  
deponent, Andrew Bowe, in each of these applications. Relying on the fact that the Minister  
bears the overall legal burden in these applications, the Respondents submit that, without these  
affidavits to support these three applications, the Court should dismiss these applications in full.  
In connection with other applications, the Respondents submit that Mr. Bowe’s evidence should  
be afforded little or no weight.  
[24] The Respondents’ principal arguments in support of these positions fall broadly into two  
categories. First, they submit that Mr. Bowe’s affidavits are outdated, incomplete and unreliable.  
Second, they submit that Mr. Bowe’s affidavits offend the hearsay rule by providing evidence as  
to facts that are outside his personal knowledge. However, particular issues are also raised with  
respect to Mr. Bowe’s Supplementary Affidavit in T-254-19. I will begin my analysis with the  
Supplementary Affidavit.  
(1) Supplementary Affidavit in T-254-19 (MNR v Marc Vaturi)  
[25] The Supplementary Affidavit is a relatively brief document, affirmed on April 7, 2021,  
which appears intended to update the evidence provided by Mr. Bowe in his original affidavit in  
T-254-19, sworn on July 27, 2019. Mr. Bowe states that, subsequent to service of the July 27,  
2019 affidavit, CRA received information and documentation from Mr. Vaturi and/or his  
representatives. Mr. Bowe then proceeds to identify, through attached exhibits, the information  
and documentation received and the items from the relevant Demands that CRA considered to be  
outstanding.  
Page: 15  
[26] The Respondent’s counsel refers to what he characterizes as two “bombshells” revealed  
through cross-examination of Mr. Bowe, conducted on November 17 and 18, 2021. First, in  
relation to a Demand identified as A-MV-0128, the Respondent notes Mr. Bowe’s evidence that,  
to the date of the Supplementary Affidavit, Mr. Vaturi had not provided the outstanding  
information and/or documentation identified in follow-up correspondence sent by CRA on  
March 10, 2020. In the course of cross-examination, Respondent’s counsel pointed out that Mr.  
Vaturi had, in fact, provided a response exceeding 150 pages on November 4, 2020.  
[27] The November 4, 2020 response was addressed to Mr. Bowe and copied to the Minister’s  
counsel. When presented with this response on the first day of his cross-examination, Mr. Bowe  
stated he did not recall seeing it and explained that he was transitioning out of his role at the  
relevant time. The Minister’s counsel subsequently investigated this issue and confirmed, on the  
second day of cross-examination, that Mr. Vaturi’s submission had been received but was  
misfiled and therefore missed in the preparation of Mr. Bowe’s Supplementary Affidavit. Both  
Mr. Bowe and the Minister’s counsel confirmed that they were not able to state whether there  
was still information or documentation outstanding in relation to A-MV-0128. The Minister  
subsequently withdrew her request for a compliance order with respect to this Demand.  
[28] The Respondent submits that these events demonstrate that Mr. Bowe affirmed the  
Supplementary Affidavit, attesting to facts essential to the Minister’s application, without  
knowing, or even making any effort to confirm, whether they were true. Relying on Canada  
(Board of Internal Economy) v Canada (Attorney General), 2017 FCA 43 [Board of Internal  
Page: 16  
Economy] at para 30, the Respondent submits that the affidavit should be struck, because it is  
“…so clearly out of bounds … that it ought to be stopped in its tracks.”  
[29] I find little merit to the Respondent’s position that the affidavit should be struck. The  
evidence suggests that Mr. Bowe was unaware of the November 4, 2020 submission due to an  
administrative error. However, even if I were to ascribe to Mr. Bowe a higher level of culpability  
in connection with this error, I would find no basis to strike the Supplementary Affidavit as  
inadmissible. Certainly, this error could cast doubt on the reliability of his evidence and, if there  
was a dispute as to whether Mr. Vaturi had submitted a particular document to CRA, I might  
therefore afford more weight to evidence adduced by the Respondent to establish the submission.  
However, there is no dispute of that sort raised in this application. Following her investigations,  
the Minister’s counsel confirmed that the November 4, 2020 submission had been overlooked,  
and the Minister subsequently withdrew her request for a compliance order in connection with  
the relevant Demand.  
[30] I agree with the Minister’s submission that Board of Internal Economy is distinguishable,  
as the affidavit that was struck in that case was found inadmissible because it amounted to a legal  
opinion on Canadian law.  
[31] The second issue that the Respondent raises in connection with the Supplementary  
Affidavit surrounds Mr. Bowe’s explanation during his cross-examination that, notwithstanding  
that the affidavit was affirmed in April 2021, it was prepared in June 2020, before he transitioned  
out of his role in November 2020. Because Mr. Bowe no longer had current personal knowledge  
Page: 17  
of CRA’s audit of Mr. Vaturi when he affirmed the Supplementary Affidavit, the Respondent  
again argues that it should be struck.  
[32] In response to this argument, the Minister explains that she was required to present a  
motion seeking an order allowing the filing of the Supplementary Affidavit. The Court issued the  
resulting Order on March 30, 2021, granting the motion and permitting the filing of the affidavit.  
It was then filed in largely the same form as presented in the motion and authorized by the  
Orderwhich included an appendix setting out the form of the Supplementary Affidavit—  
notwithstanding that several months had passed. The Respondent takes issue with this  
explanation, noting that the introductory paragraphs of the affidavit were updated to explain the  
change in Mr. Bowe’s role.  
[33] Again, I find little merit to the Respondent’s argument that the Supplementary Affidavit  
is inadmissible and should be struck. I accept that the affidavit is misleading, as it amounts to  
testimony by Mr. Bowe that, other than as identified in the updates set out in the affidavit, the  
information and documentation sought in the Demands issued to Mr. Vaturi was still outstanding  
as of April 2021. It appears to have been Mr. Bowe’s intention that his testimony to that effect  
apply as of June 2020 when the affidavit was prepared, but the affidavit does not read that way.  
If, in his cross-examination of Mr. Bowe, the Respondent’s counsel had not identified this  
irregularity, the Court could have been misled in relying on the Supplementary Affidavit. The  
benefit of his identification of this error obviously accrues to the Respondent and, to the extent  
there was a dispute between the parties on whether Mr. Vaturi had submitted additional  
documentation between June 2020 and April 2021, the Supplementary Affidavit would not assist  
Page: 18  
the Minister. However, there was no contention that Mr. Vaturi made additional submissions  
during this period and, in any event, these circumstances do not raise a basis for the Court to find  
the Supplementary Affidavit inadmissible.  
(2) Staleness of Affidavits  
[34] Turning to the Respondents’ principal inadmissibility arguments, related to the main  
affidavits sworn by Mr. Bowe in each of T-252-19, T-254-19 and T-261-19, they submit first  
that these affidavits are out of date and should be struck as inadmissible due to their staleness. As  
canvassed by the Respondents’ counsel in cross-examination, it is clear that (other than the  
Supplementary Affidavit in T-254-19) Mr. Bowe did not prepare additional affidavits to update  
his evidence after the original affidavits were sworn on July 27, 2019. Noting that  
noncompliance with the Minister’s Demands is one of the statutory conditions for issuance of  
compliance order under s 237.1(1), the Respondents submit that Mr. Bowe’s affidavits should be  
struck because they are stale. They rely on Fabrikant v Canada, 2017 FC 1115 [Fabrikant], in  
support of their argument.  
[35] Fabrikant involved an appeal of a prothonotary’s decision, which had refused to waive  
the Court’s filing fee for a self-represented vexatious litigant wishing to file an application for  
judicial review. The prothonotary dismissed the motion for waiver of the fee on the grounds that  
the applicant’s evidence of impecuniosity was prima facie deficient, being based on an affidavit  
nearly one year old. Justice Harrington upheld the prothonotary’s decision on several grounds,  
including that a motion should be accompanied by a current affidavit and that the prothonotary  
was entitled to reject the applicant’s affidavit as stale-dated (at paras 23-24).  
Page: 19  
[36] I agree with the Minister’s response that Fabrikant does not express a general principle  
that the passage of time alone stale dates affidavits, requiring them to be struck. Indeed, it is not  
clear from Fabrikant that either the prothonotary or Justice Harrington considered the affidavit to  
be inadmissible, as opposed to concluding that, because it was outdated, the evidence simply did  
not support the relief requested.  
[37] In the case at hand, the fact that Mr. Bowe did not file updated evidence does not make  
his original evidence inadmissible. Rather, the Court must consider whether Mr. Bowe’s  
evidence, including the date as of which it speaks, supports issuance of the requested compliance  
orders. In that respect, it is clear from the records before the Court, including the Amended  
Notices, that circumstances have evolved since Mr. Bowe swore his affidavits on July 27, 2019.  
The Respondents argue that it is improper for the Minister to simply amend her Notices of  
Summary Application, so as to reduce the scope of the Demands to take into account additional  
documentation or information that has been received, without filing updated evidence reflecting  
the receipt of that material.  
[38] I find nothing problematic in the Minister’s approach. Particularly with the significant  
scope of the Demands at issue in the present applications, and the length of time that has passed  
in bringing these applications to a hearing, it is perhaps not surprising that that the Minister has  
received additional material in response to certain Demands. In such circumstances, it is  
appropriate for the Minister to reduce the scope of the applications. If, for that reason or others,  
the Minister decides to abandon certain Demands or portions thereof, I see no basis for a strict  
requirement to file updated evidence explaining the reason for the reduction in scope.  
Page: 20  
[39] Of course, depending on the particular issues and supporting evidentiary basis raised by a  
respondent to a compliance application, the Minister may be unable to succeed without updated  
evidence. For instance, if the respondent had adduced evidence that particular responses had  
been provided subsequent to the filing of the compliance application, the Minister may be unable  
to resist that assertion without additional updated evidence of her own. However, I do not  
understand any of the Respondents’ arguments in these applications to be of that nature. As will  
be canvassed later in these Reasons, Mr. Vaturi argues in T-254-19 that he has fully complied  
with some of the outstanding Demands. However, the Court’s analysis of that argument involves  
consideration of the details of the relevant Demands and of the material Mr. Vaturi provided in  
response. That argument does not engage a dispute as to whether certain submissions were  
actually made or received after the Minister filed her application and therefore will not turn on  
the absence of updated affidavit evidence.  
[40] In each of the six applications before the Court, Mr. Bowe provided evidence as of July  
26, 2019, as to the then outstanding Demands, and swore that the Respondent had not provided  
the information and documents responsive to those Demands. As will be explained immediately  
below in my analysis of the Respondents’ arguments surrounding hearsay in Mr. Bowe’s  
affidavits, any conflict in the evidence including meaningful challenge of Mr. Bowe’s testimony  
would require the Court to consider the weight to be afforded to Mr. Bowe’s evidence. However,  
with the exception of the November 2020 submission identified earlier in these Reasons, the  
Respondents have not adduced evidence, through cross-examination of Mr. Bowe or otherwise,  
that they have provided responses to the Demands and portions thereof that the Minister is  
presently pursuing that have not been taken into account. The November 2020 submission  
Page: 21  
identified through cross-examination was addressed through the Minister’s subsequent  
withdrawal of the relevant Demand.  
[41] As previously noted, noncompliance with the Minister’s Demands is one of the statutory  
conditions for issuance of compliance order under s 237.1(1), and the Minister bears the onus of  
proof on this condition. However, in the absence of any conflicting evidence, I consider Mr.  
Bowe’s evidence sufficient to meet this onus, notwithstanding that it has not been updated.  
(3) Hearsay  
[42] The Respondents’ second argument in relation to Mr. Bowe’s original affidavits  
challenges their admissibility, or alternatively their weight, based on hearsay contained therein.  
[43] The first paragraph of each of these affidavits is materially identical, reading as follows:  
1. I am an International and Large Business Case Manager with  
the Canada Revenue Agency (“CRA”), in the Edmonton Tax  
Services Office. In the normal course of my duties I have conduct  
of audit matters in respect of the Respondent. I have reviewed the  
files and have personal knowledge of the matters hereinafter  
deposed to, save and except that which is stated to be based on  
information and belief, and where so stated, I verily believe it to be  
true.  
[44] In his cross-examination in each of T-252-19, T-254-19 and T-261-19, Mr. Bowe  
admitted that a large number of paragraphs in his affidavit contained facts that were not based on  
his personal knowledge. The Respondents also submit, correctly in my view, that in most cases  
the affidavits do not state that these paragraphs are based on information and belief. In his cross-  
Page: 22  
examination in T-252-19 (Nader Ghermezian), Mr. Bowe confirmed that, in some cases, his  
affidavit fails to identify which facts are based and information and belief.  
[45] The Respondents therefore argue that the affidavits should be struck as inadmissible, on  
the basis that they offend Rule 81 of the Federal Courts Rules, SOR/98-106, and, more  
generally, include substantial amounts of inadmissible hearsay. Rule 81 provides as follows:  
Content of affidavits  
Contenu  
81 (1) Affidavits shall be  
confined to facts within the  
deponent’s personal  
81 (1) Les affidavits se  
limitent aux faits dont le  
déclarant a une connaissance  
knowledge except on motions, personnelle, sauf s’ils sont  
other than motions for  
summary judgment or  
summary trial, in which  
statements as to the  
deponent’s belief, with the  
grounds for it, may be  
included.  
présentés à l’appui d’une  
requête – autre qu’une requête  
en jugement sommaire ou en  
procès sommaire auquel cas  
ils peuvent contenir des  
déclarations fondées sur ce  
que le déclarant croit être les  
faits, avec motifs à l’appui.  
Affidavits on belief  
Poids de l’affidavit  
(2) Where an affidavit is made (2) Lorsqu’un affidavit  
on belief, an adverse inference contient des déclarations  
may be drawn from the failure fondées sur ce que croit le  
of a party to provide evidence déclarant, le fait de ne pas  
of persons having personal  
knowledge of material facts.  
offrir le témoignage de  
personnes ayant une  
connaissance personnelle des  
faits substantiels peut donner  
lieu à des conclusions  
défavorables.  
[46] In support of the inadmissibility of hearsay evidence, the Respondents rely on the  
following explanation in the recent decision by the Federal Court of Appeal in Canada (Attorney  
General) v Iris Technologies Inc, 2021 FCA 223 [Iris Technologies] at para 32:  
Page: 23  
32. The rules of evidence, both substantive and procedural,  
matter. They matter because they are the foundation of the truth-  
seeking role of the courts. They are also the foundation of fairness  
in the adjudicative process. They are not to be overlooked, and  
there are consequences if they are. Here, the affidavit was wafer  
thin. It did not comply with the Ares v. Venner exception to the  
hearsay rule, it did not measure up to the statutory exception  
specifically designed to facilitate the introduction of documents in  
the possession of the CRA and no notice was given under the  
Canada Evidence Act of an intention to rely on business records.  
Quite apart from the question of the admissibility of evidence in  
any individual case, courts have an over-arching concern to ensure  
that proceedings unfold in accordance with established laws of  
evidence and procedure. This is the foundation of fairness. This  
factor militates against admission of the affidavit.  
[47] In Iris Technologies, the Federal Court of Appeal ultimately held that the affidavit at  
issue was admissible under the common law exception to the hearsay rule based on reliability  
and necessity (at para 33). In the case at hand, the Minister does not rely on that particular  
exception but rather upon what it refers to as the corporate exception to the hearsay rule. The  
Minister refers the Court to Twentieth Century Fox Home Entertainment Canada Limited v  
Canada (Attorney General), 2012 FC 823 [Twentieth Century Fox], which considered the  
admissibility of an affidavit of a CRA official, filed in response to a judicial review of a decision  
under the ETA. Justice Phelan accepted into evidence the hearsay components of the affidavit,  
holding that the official’s evidence was in the nature of “corporate” evidence, in that he acted in  
a supervisory capacity, was responsible for his subordinates, and was therefore in a position to  
know if the facts in his affidavit were true (at paras 23, 26). Twentieth Century Fox was affirmed  
on appeal (2013 FCA 25), although without any commentary on this particular issue.  
[48] Subsequently, in O’Grady v Canada (Attorney General), 2016 FC 9 [O’Grady], Justice  
LeBlanc followed the approach of Twentieth Century Fox to the admissibility of hearsay  
Page: 24  
evidence, concluding that the affiant in O’Grady, a Director General with Statistics Canada, was,  
based on her sphere of responsibility, in a position to know that the facts sworn in her affidavit  
were true (at para 19). For similar reasons, Justice LeBlanc also concluded that the affiant was in  
a position to swear the affidavit without providing evidence of the persons having personal  
knowledge of the material facts (at para 20). The Court declined to draw an adverse inference  
under Rule 81(2) and concluded that whether the respondent had provided the best evidence  
went to the weight to be accorded to the affidavit by the judge on the hearing of the application  
(at para 22).  
[49] On appeal, in O’Grady v. Canada (Attorney General), 2016 FCA 221, the Federal Court  
of Appeal again relied on Twentieth Century Fox and found no error in Justice LeBlanc’s  
decision that the affidavit evidence was admissible, because the affiant, by virtue of her  
responsibilities in the Government of Canada, was in a position to depose to the matters in  
question without necessarily having personal knowledge (at para 10).  
[50] In support of her reliance on this jurisprudence, the Minister refers to Mr. Bowe’s  
affidavit and cross-examination evidence. In each of his affidavits, he swore that he was  
employed as an International and Large Business Case Manager with CRA. In his cross-  
examination in T-252-19 (Nader Ghermezian), he explained that this role involved the duties of a  
team leader in CRA’s Audit and Compliance Programs Branch. In his cross-examination in T-  
261-19 (Raphael Ghermezian), in the context of questioning about the mailing by a student  
employee of a particular Requirement, Mr. Bowe described himself as the supervisor of the  
employee, as the individual with the conduct of the audit, and as therefore possessing knowledge  
Page: 25  
of what happened within the audit file. In T-254-19 (Marc Vaturi), when questioned about  
Requirement A-NG-0127, addressed to Mr. Vaturi on June 27, 2018 under the signature of an  
individual named John Harasymchuk, Mr. Bowes referred to the Requirement being issued on  
his recommendation as the case manager with responsibility for the audit.  
[51] In my view, this evidence is sufficient to support the Minister’s reliance on the above  
jurisprudence for the admissibility of Mr. Bowe’s affidavits under the corporate exception.  
[52] In arriving at this conclusion, I have considered the Respondents’ submission that this  
case law supports only the ability of a manager to testify about tasks performed by subordinates.  
I disagree that the principle is as limited as the Respondents suggest. I note that, in Coldwater  
First Nation v. Canada (Attorney General), 2019 FCA 292 [Coldwater First Nation], the Federal  
Court of Appeal explained that evidence is admissible from departmental supervisors or similar  
individuals about the activities of their department, the conduct of their employees, and events  
taking place in relation to the department, where their knowledge is sufficiently direct and  
personal, without having to be directly involved in the conduct, activities, and events (at para  
42).  
[53] Coldwater First Nation also explains that there is no general “department head”  
exception to hearsay that would permit a departmental supervisor to introduce particular  
statements made by departmental personnel for the truth of their contents (at para 42). In that  
context, I note the Respondents’ submission that this principle does not permit Mr. Bowe to  
provide testimony about the various dealings of members of the Ghermezian family. However, I  
Page: 26  
find compelling the Minister’s submission that, in large measure, Mr. Bowe’s affidavits serve to  
set out his understanding of facts that provide relevant contextual background to the issuance of  
the Demands. As the Minister is in some respects a stranger to these facts, which are known  
principally to the Respondents themselves, CRA’s understanding of such facts may be of limited  
significance to the outcome of these applications.  
[54] Of course, some of the facts set out in Mr. Bowe’s affidavits could be determinative of  
particular issues in these applications. For instance, as will be canvassed later in these Reasons,  
the Respondents dispute whether the Demands were properly served upon them. Mr. Bowe’s  
evidence explaining how CRA sent the Demands to the Respondents will be significant to the  
outcome of this issue. However, his evidence on this issue of falls well within the principle that a  
manager can testify to tasks performed by employees.  
[55] Mr. Bowe’s evidence as to particular relationships among members of the Ghermezian  
family or entities in which they are interested, or their respective business dealings, does not  
necessarily have the same significance. As the Minister submits, this evidence may provide  
context that assists the Court in understanding the background to the audits underlying the  
Demands and in understanding the Demands themselves. However, if the understanding of  
certain background facts set out in Mr. Bowe’s affidavit were incorrect, this would not  
necessarily invalidate the Demand or a related application for a compliance order. Indeed,  
Demands represent a means of obtaining information or documentation from the Respondents,  
who are the best source of material that would enable CRA to either verify or change its  
understanding.  
Page: 27  
[56] The Respondents’ arguments in support of their efforts to strike Mr. Bowe’s affidavit  
challenge a large number of paragraphs, without identifying particular uses by the Minister of the  
evidence in those paragraphs that would offend the distinction identified in Coldwater First  
Nation. In the absence of such submissions, I find no basis to conclude that the affidavits, or  
particular portions thereof, are inadmissible as adduced for a hearsay purpose outside the scope  
of the jurisprudence upon which the Minister relies. Of course, the absence of direct and personal  
knowledge on the part of Mr. Bowe could affect the weight to be afforded to his evidence,  
particularly in the context of any compelling conflicting evidence or meaningful challenge to his  
testimony in cross-examination. However, any such determinations as to weight should be made,  
in relation to particular components of Mr. Bowe’s evidence upon which the Minister relies, in  
analyzing the individual issues in the applications.  
C. Whether the Respondents were required to provide documents and/or  
information in response to a Request issued under s 231.1 of the Act  
[57] One of the principal issues raised by the Respondents, which relates to most of the  
applications, involves the proper statutory interpretation of s 231.1(1) of the Act and the  
particular authority it affords to the Minister in her efforts to obtain information and  
documentation from the Respondents. As will be explained in more detail below, the  
Respondents submit that the Minister has conflated aspects of the authority provided by ss  
231.1(1) and 231.2(1). The Respondents argue that many or all of the Requests purportedly  
issued under s 231.1(1) sought information and/or documentation that the Minister was  
authorized to compel only through a Requirement issued under s 231.2(1). The Requests do not  
comply with certain technical requirements of s 231.2(1), and the Minister does not seek to rely  
Page: 28  
upon s 231.2(1) in support of those Requests. Therefore, the Respondents argue that the Requests  
are invalid and cannot support the issuance of a compliance order under s 231.7.  
[58] As a starting point, the Respondents again emphasize the Minister’s burden to satisfy the  
statutory conditions under s 231.7, one of which is that the person against whom a compliance  
order is sought was required under either s 231.1 or 231.2 to provide the access, assistance,  
information or documents sought by the Minister. The Respondents submit that, if a Request  
falls outside the authority provided by s 231.1, then the recipient was not required to comply, the  
statutory condition is not met, and a compliance order cannot be issued in relation to that  
Request. I find no basis to disagree with this aspect of the Respondents’ argument.  
[59] I therefore turn to the particular bases on which the Respondents argue that Requests are  
not authorized by s 231.1(1). Later in these Reasons, I will address other arguments surrounding  
limitations on the Minister’s authority to issue Requirements under 231.2(1) related to unnamed  
persons and foreign-based information. However, for purposes of the present issue, the  
Respondents accept that, through a Requirement properly issued and served under s 231.2(1), the  
Minister is authorized, for any purpose related to the administration or enforcement of the Act, to  
require any person to provide any information or document. In contrast, the Respondents submit  
that s 231.1(1) affords the Minister only an inspection power, i.e., authority (again, for any  
purpose related to the administration or enforcement of the Act) to attend at the premises of a  
taxpayer or other person to inspect books and records or other documents. The Respondents  
argue that s 231.1(1) does not grant the Minister power comparable to s 231.2(1), either to: (a)  
compel provision of documents outside the context of an inspection; or (b) compel the provision  
Page: 29  
of information other than information about the location or provenance of documentation sought  
in the context of an inspection.  
[60] As suggested by this explanation of the Respondents’ argument, there are two aspects to  
their position, both of which they say are offended by the Requests. First, the Respondents  
submit that, while an “authorized person” (the meaning of which will be canvassed later in these  
Reasons) can rely upon s 231.1(1) to enter business premises and inspect documents that are kept  
there, that section provides no authority for the authorized person to issue a written demand  
compelling the provision of such documents. Second, the Respondents submit that s 231.1(1)  
relates only to pre-existing documentation and does not authorize issuance of a written demand  
compelling the recipient to answer questions or otherwise provide substantive (but previously  
undocumented) information relevant to a taxpayer’s tax position. The Minister disputes both  
aspects of the Respondents’ position, arguing that there is overlap in the powers afforded by ss  
231.1 and 231.2 and that the Requests were all validly issued under s 231.1(1). In particular, the  
Minister relies on s 231.1(1)(a) as authority for the Requests.  
[61] While there is some overlap in the parties’ arguments in relation to these two aspects of  
this issue, and I am conscious that the legislation must be interpreted holistically, in my view the  
required analysis can be most easily explained by addressing these aspects individually. I will  
first consider the question whether s 231.1(1)(a) authorizes the compulsion of documentation  
through a written request, outside the context of a physical attendance at premises where an  
inspection is being conducted.  
(1) Compulsion of Documents  
Page: 30  
[62] As this issue is one of statutory interpretation, the outcome must be governed by the  
modern approach to statutory interpretation, which requires that the words of the statute be read  
in their entire context and in their grammatical and ordinary sense, harmoniously with the  
scheme of the statute, the object of the statute, and the intention of Parliament. This approach  
involves a textual, contextual and purposive analysis to find a meaning that is harmonious with  
the statute as a whole (see Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at paras 10-  
11).  
[63] Starting with the text of the statutory provision at issue, described as the point of  
departure for any interpretive exercise (see eBay Canada Ltd v MNR, 2008 FCA 348 [eBay] at  
para 32), s 231.1(1) reads as follows:  
Inspections  
Enquêtes  
231.1 (1) An authorized  
231.1 (1) Une personne  
person may, at all reasonable  
autorisée peut, à tout moment  
times, for any purpose related raisonnable, pour l’application  
to the administration or  
enforcement of this Act,  
et l’exécution de la présente  
loi, à la fois :  
(a) inspect, audit or  
a) inspecter, vérifier ou  
examiner les livres et  
registres d’un  
contribuable ainsi que  
tous documents du  
contribuable ou d’une  
autre personne qui se  
rapportent ou peuvent se  
rapporter soit aux  
renseignements qui  
figurent dans les livres ou  
registres du contribuable  
ou qui devraient y figurer,  
soit à tout montant  
examine the books and  
records of a taxpayer and  
any document of the  
taxpayer or of any other  
person that relates or may  
relate to the information  
that is or should be in the  
books or records of the  
taxpayer or to any amount  
payable by the taxpayer  
under this Act, and  
payable par le  
Page: 31  
contribuable en vertu de  
la présente loi;  
(b) examine property in an  
inventory of a taxpayer and  
any property or process of,  
or matter relating to, the  
taxpayer or any other  
person, an examination of  
which may assist the  
authorized person in  
b) examiner les biens à  
porter à l’inventaire d’un  
contribuable, ainsi que tout  
bien ou tout procédé du  
contribuable ou d’une autre  
personne ou toute matière  
concernant l’un ou l’autre  
dont l’examen peut aider la  
personne autorisée à établir  
l’exactitude de l’inventaire  
du contribuable ou à  
determining the accuracy of  
the inventory of the  
taxpayer or in ascertaining  
the information that is or  
should be in the books or  
records of the taxpayer or  
any amount payable by the  
taxpayer under this Act,  
contrôler soit les  
renseignements qui figurent  
dans les livres ou registres  
du contribuable ou qui  
devraient y figurer, soit tout  
montant payable par le  
contribuable en vertu de la  
présente loi;  
and for those purposes the  
authorized person may  
à ces fins, la personne  
autorisée peut :  
(c) subject to subsection  
231.1(2), enter into any  
premises or place where  
any business is carried on,  
any property is kept,  
anything is done in  
connection with any  
business or any books or  
records are or should be  
kept,  
c) sous réserve du  
paragraphe (2), pénétrer  
dans un lieu où est  
exploitée une entreprise,  
est gardé un bien, est faite  
une chose en rapport avec  
une entreprise ou sont  
tenus ou devraient l’être  
des livres ou registres;  
(d) and require the owner  
or manager of the  
d) requérir le propriétaire,  
ou la personne ayant la  
gestion, du bien ou de  
l’entreprise ainsi que  
toute autre personne  
présente sur les lieux de  
lui fournir toute l’aide  
raisonnable et de  
property or business and  
any other person on the  
premises or place to give  
the authorized person all  
reasonable assistance and  
to answer all proper  
questions relating to the  
administration or  
répondre à toutes les  
questions pertinentes à  
Page: 32  
enforcement of this Act  
and, for that purpose,  
require the owner or  
manager to attend at the  
premises or place with the  
authorized person.  
l’application et  
l’exécution de la présente  
loi et, à cette fin, requérir  
le propriétaire, ou la  
personne ayant la gestion,  
de l’accompagner sur les  
lieux.  
[64] Focusing on this language, the Respondents emphasize that s 231.1(1)(a), upon which the  
Minister relies, empowers an authorized person to “inspect, audit or examine…” certain books,  
records and other documents. The mid-amble in s 231.1(1) then states that “…for those  
purposes…”, meaning the purposes set out in the preceding paragraphs including the right to  
inspect, audit or examine, the authorized person is given additional powers under ss 231.1(1)(c)  
and (d). Section 231.1(1)(c) entitles the authorized person to enter certain premises or places  
where business is carried on or where property, books or records are kept. Section 231.1(1)(d)  
requires the owner or manager of the property or business and any other persons at the premises  
or place to give the authorized person assistance and answer questions. For that purpose, s  
231.1(1)(d) also requires that the owner or manager attend at the premises or place with the  
authorized person.  
[65] Against that backdrop, the Respondents emphasize that the only obligation expressly  
imposed by the language of s 231.1(1) is found in s 231.1(1)(d), where the use of the word  
“require” mandates the provision of assistance, answering of questions, and attendance at the  
premises or place with the authorized person. There is no express obligation imposed upon a  
taxpayer or any other person to provide documents pursuant to a written demand in the nature of  
the Requests.  
Page: 33  
[66] The Respondents also note the reference, in the introductory language of s 231.1(1), to  
the powers of that section being exercisable “at all reasonable times,” which they submit is  
consistent with an inspection power but not a power to issue a written demand.  
[67] Turning to context, the Respondents’ argument compares s 231.1(1) to s 231.2(1), which  
reads as follows:  
Requirement to provide  
documents or information  
Production de documents ou  
fourniture de  
renseignements  
231.2 (1) Notwithstanding any 231.2 (1) Malgré les autres  
other provision of this Act, the dispositions de la présente loi,  
Minister may, subject to  
subsection (2), for any  
purpose related to the  
le ministre peut, sous réserve  
du paragraphe (2) et, pour  
l’application ou l’exécution de  
administration or enforcement la présente loi (y compris la  
of this Act (including the  
collection of any amount  
perception d’un montant  
payable par une personne en  
payable under this Act by any vertu de la présente loi), d’un  
person), of a listed accord international désigné  
international agreement or, for ou d’un traité fiscal conclu  
greater certainty, of a tax  
treaty with another country,  
avec un autre pays, par avis  
signifié à personne ou envoyé  
by notice served personally or par courrier recommandé ou  
by registered or certified mail, certifié, exiger d’une  
require that any person  
provide, within such  
reasonable time as is  
stipulated in the notice,  
personne, dans le délai  
raisonnable que précise l’avis  
:
(a) any information or  
additional information,  
including a return of  
income or a  
a) qu’elle fournisse tout  
renseignement ou tout  
renseignement  
supplémentaire, y  
compris une déclaration  
de revenu ou une  
déclaration  
supplementary return; or  
supplémentaire;  
Page: 34  
(b) any document.  
b) qu’elle produise des  
documents.  
[68] Section 231.2(1) expressly empowers the Minister, for purposes including those related  
to the administration or enforcement of the Act, to require any person to provide any information  
or any document. Unlike s 231.1(1), this language expressly imposes such an obligation upon the  
recipient of a Requirement under s 231.2(1). The Respondents submit this comparison suggests  
that, where Parliament intends to require a person to provide a document, it does so expressly  
and not by implication.  
[69] The Respondents also observe that the Minister’s power in s 231.2(1) is subject to a  
number of express limitations. As will be canvassed in more detail in relation to other issues later  
in these Reasons, these limitations on the Minister’s power include that it: (a) may be exercised  
only by the Minister (or a delegate duly authorized under s 220(2.01)); (b) cannot be exercised in  
relation to unnamed persons without prior judicial authorization; and (c) may be exercised only  
through a notice which specifies a reasonable time for compliance. The Respondents refer to  
these limitations as “guardrails” intended to protect taxpayers and other recipients of  
requirements issued under s 231.2(1). They submit that the express but somewhat circumscribed  
power to demand documentation and information under s 231.2(1), and the absence of similar  
guardrails in s 231.1(1), suggest that s 231.1(1) is not intended to authorize the issuance of  
demands in the same manner as s 231.2(1).  
[70] I note the Minister’s reliance on Redeemer Foundation v Canada (National Revenue),  
2008 SCC 46 [Redeemer], in which the majority of the Supreme Court of Canada rejected a  
Page: 35  
somewhat similar argument. There, the Court found that the limitation in s 231.2, preventing the  
Minister from obtaining information about unnamed persons without judicial authorization, did  
not prohibit the Minister from seeking the same information under s 231.1 (at paras 14-15).  
Nevertheless, in my view, there is logic to the Respondents’ submissions based on the text and  
context of the statutory provisions in issue and, in the absence of a purposive analysis, I might be  
persuaded by the Respondents’ arguments.  
[71] However, as emphasized by the Minister, eBay explains the importance of statutory  
interpretation examining the purpose of the provision in question and the statute as a whole so  
that, whenever possible, the text of the statute is interpreted in a manner which furthers that  
purpose (at para 32). In Minister of National Revenue v Cameco Corporation, 2019 FCA 67  
[Cameco], one of the leading authorities on the interpretation of s 231.1, the Federal Court of  
Appeal states that the purpose of s 231.1 is to facilitate the Minister’s unencumbered and  
immediate access to all books, records and information of the taxpayer (at para 27). More  
broadly, eBay explains that the Minister’s broad powers in supervising the regulatory scheme of  
the Act are a function of Canada’s self-reporting tax system (at para 34):  
34. The Supreme Court of Canada has provided additional  
guidance which is relevant to the interpretation of the Act’s  
enforcement powers. Thus, in R. v. McKinlay Transport Ltd.,  
[1990] 1 S.C.R. 627, a case involving a challenge under section 8  
of the Canadian Charter of Rights and Freedoms to the Minister’s  
power to require the production of documents, Justice Wilson  
noted (at 648) that the major drawback of a self-reporting tax  
system such as ours is that some taxpayers will attempt to evade  
tax, by failing to report income, for example. Accordingly, she  
said:  
[T]he Minister of National Revenue must be given  
broad powers in supervising this regulatory scheme  
to audit taxpayers’ returns and inspect all books and  
records which may be relevant to the preparation of  
Page: 36  
these returns. The Minister must be capable of  
exercising these powers whether or not he has  
reasonable grounds for believing that a particular  
taxpayer has breached the Act. … A spot check or a  
system of random monitoring may be the only way  
in which the integrity of the tax system can be  
maintained.  
[72] Cameco also recognizes that the legislative purpose, however important, cannot replace  
the language of the statute that Parliament has chosen (at para 27). However, the Minister argues  
that the words “inspect, audit or examine…” in s 231.1(1)(a) are broad terms encompassing a  
range of activities, which logically include requesting the provision of documents. This  
submission is consistent with the statutory interpretation analysis performed in Tellza, in relation  
to the comparable provision of the ETA (s 288(1)), which took into account not only the context  
and purpose of the ETA as part of Canada’s self-reporting and self-assessing taxation regime, but  
also the plain, grammatical, dictionary meaning of “inspect, audit, or examine” (at para 13). The  
Court concluded that the inspection power afforded by this provision necessarily entailed the  
power to request or require documents to be provided so that the authorized person can conduct  
an inspection, audit or examination effectively (at para 18).  
[73] Indeed, among the jurisprudence relied upon by both parties in support of their respective  
positions on the statutory interpretation issue, Justice Fuhrer’s recent decision in Tellza is the  
authority which most directly addresses this aspect of the issue. While Tellza involved an  
application for judicial review under the ETA, challenging a written request to obtain electronic  
accounting data, rather than a compliance application under the Act, it is apparent from the  
decision that the applicant in that case advanced a position essentially identical to that taken by  
the Respondents in the case at hand. Given the significance of this particular authority for the  
Page: 37  
issue now before the Court, it is worthwhile to reproduce a substantial portion of Justice Fuhrer’s  
description of the applicant’s position and her reasons for rejecting it (at paras 11-18):  
11. Contrary to Tellza’s position that the October 4, 2019 letter  
was a “requirement” and not a “request” and hence, should have  
issued under the ETA s 289(1), instead of the ETA s 288(1), I am  
not persuaded that it was unreasonable for the CRA to issue the  
letter under the latter provision instead.  
12. The parties do not disagree that the statutory interpretation of  
a provision must be consistent with the text, context and purpose of  
the provision: Vavilov, above at paras 117-120; see also Rizzo &  
Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21. The role of the  
reviewing court, however, on a reasonableness review involving  
statutory interpretation is not to “undertake a de novo analysis of  
the question or ‘ask itself what the correct decision would have  
been’”: Vavilov, above at para 116, citing Law Society of New  
Brunswick v Ryan, 2003 SCC 20 at para 50.  
13. Taking into account the context and purpose of the ETA, as a  
self-reporting and self-assessing taxation regime, as well as the  
plain, grammatical, dictionary meaning of “inspect, audit, or  
examine”, in my view the CRA’s decision to rely on subsection  
288(1) as the basis for issuing the October 4, 2019 letter was  
justified. I add that Tellza did not adduce any evidence  
contradicting that the letter was issued by an “authorized  
person,” as contemplated in the relevant provision.  
14. Subsection 288(1) essentially permits the authorized person  
to “inspect, audit or examine the documents, property or  
processes” of persons with record keeping and reporting  
obligations under the ETA, including in connection with any  
claimed rebate or refund such as input tax credits or ITCs. Further,  
subsection 288(1) and the remainder of section 288 deal with the  
conditions under which the authorized person “may” enter business  
or commercial premises to carry out these functions.  
15. Tellza contends that the “inspection power” under subsection  
288(1) is more limited in scope than the “requirement power”  
under subsection 289(1) of the ETA, in that the authorized person  
is not empowered to request or require information to be provided.  
Although I do not disagree with the general proposition about the  
more limited scope of subsection 288(1), I cannot agree with the  
latter contention for several reasons.  
Page: 38  
16. First, the ability to inspect premises is permissive; the  
provision does not mandate in-person inspections, audits or  
examinations. In other words, the inspection power is not limited  
to a physical location or locations but rather, in my view, relates to  
the person or persons whose documents, property or processes can  
be inspected, audited or examined. The purpose of this activity also  
is more limited, as contrasted with subsection 289(1), to  
determining obligations under Part IX (GST) of the ETA or the  
amount of any rebate or refund to which a person is entitled.  
Subsection 289(1), on the other hand, operates “[d]espite any other  
provision of this Part” and applies more broadly to “any person”  
within the confines of the stated purpose. That purpose also is  
broader, however, and described as “…any purpose related to the  
administration or enforcement of a listed international agreement  
or this Part [i.e. Part IX (GST)], including the collection of any  
amount payable or remittable under this Part by any person…”  
17. Second, the applicable definitions of “document” and  
“property” in the ETA s 123(1) are not restricted to physical things.  
For example, a “document” is defined as including “money, a  
security and a record,” while a “record” is defined as including  
“…any other thing containing information, whether in writing or  
in any other form.” [Emphasis added.] In addition, “property” is  
defined as meaning “any property, whether real or personal,  
movable or immovable, tangible or intangible, corporeal or  
incorporeal, and includes a right or interest of any kind, a share and  
a chose in action, but does not include money.”  
18. I thus find that on a plain reading of the applicable definitions,  
within the context and purpose of the ETA, subsection 288(1)  
indeed grants an authorized person the power to request or require  
a taxpayer to provide information in any form. The inspection  
power necessarily entails, in my view, the power to request or  
require documents to be provided so that the authorized person can  
conduct the inspection, audit or examination effectively. I further  
find that the authorized person is not limited, in a modern,  
electronic era, to an inspection, audit or examination of the  
taxpayer’s documents and records at their premises.  
[74] I find this analysis compelling and see no reason to depart from it or to decline to apply it  
to the provisions of the Act at issue in the case at hand. In so concluding, I have considered the  
Respondents’ argument that, because Tellza involved a judicial review, it assessed the relevant  
Page: 39  
statutory interpretation on the standard of reasonableness, rather than arriving at a definitive  
interpretation on the standard of correctness. While the Respondents’ point is noteworthy, I agree  
with the Minister’s response, explaining that Tellza is accompanied by a related decision in  
Minister of National Revenue v Tellza, 2021 CarswellNat 3964, CanLII 76055 [Tellza No 2] on a  
compliance application.  
[75] The judicial review application and compliance application, in Tellza and Tellza No 2  
respectively, were argued on the same date, and both decisions bear the same date. In Tellza No  
2, the Court granted the compliance application, ordering the respondents in that matter to  
provide the electronic accounting data that was requested by CRA under s 288(1) of the ETA in  
what appears to have been a follow-up to the request that was under judicial review in Tellza.  
Tellza No 2 is a recitals-type decision and therefore does not include detailed reasons. However,  
it states the Court’s findings, including that, by requests made under s 288(1) of the ETA, the  
respondents were required to provide the electronic accounting data, and expressly describes the  
Court’s satisfaction that this condition has been met as having regard to the findings in Tellza.  
[76] I therefore agree with the Minister’s submission that the combination of these decisions  
demonstrates Justice Fuhrer concluding not only that the statutory interpretation set out in detail  
in Tellza was reasonable but also that it is the correct interpretation of the relevant provision.  
[77] The Minister cites a number of other cases, including appellate authority, in support of  
her position on this aspect of the interpretation of s 231.1(1) of the Act. While those cases may  
contain language or involve facts that are arguably consistent with the Minister’s position, none  
Page: 40  
of them other than Tellza demonstrates the precise issue being raised by the parties and subjected  
to judicial analysis. However, I consider the conclusion in Tellza (at para 18), that the authorized  
person is not limited, in a modern, electronic era, to an inspection, audit or examination of the  
taxpayer’s documents and records at their premises, to be consistent with appellate authority  
identified by the Minister. Interpreting the compliance provisions of the Act in eBay (at para 42),  
the Federal Court of Appeal relied on Society of Composers, Authors and Music Publishers of  
Canada v Canadian Assn of Internet Providers, 2004 SCC 45, in concluding that courts should  
interpret legislation in light of contemporary technology and, if necessary, “transpose” its terms  
to take into account the changed technological environment in which it is to be applied.  
[78] In conclusion on this aspect of the statutory interpretation issue, I am satisfied that s  
231.1(1) entitles an authorized person to demand provision of documentation without physically  
attending at a place or premises where the documentation is kept.  
(2) Compulsion of Information  
[79] I therefore turn to the second aspect of the statutory interpretation issue, whether s  
231.1(1) authorizes compulsion of only pre-existing documentation or whether it authorizes  
issuance of a demand compelling the recipient to provide, through written answers to questions,  
substantive information relevant to a taxpayer’s tax position.  
[80] Again, the Respondents’ submissions focus substantially upon the text of s 231.1(1) and  
in particular s 231.1(1)(a), which I will reproduce again for ease of reference:  
Page: 41  
231.1 (1) An authorized  
231.1 (1) Une personne  
person may, at all reasonable  
autorisée peut, à tout moment  
times, for any purpose related raisonnable, pour l’application  
to the administration or  
enforcement of this Act,  
et l’exécution de la présente  
loi, à la fois :  
(a) inspect, audit or  
a) inspecter, vérifier ou  
examiner les livres et  
registres d’un  
contribuable ainsi que  
tous documents du  
contribuable ou d’une  
autre personne qui se  
rapportent ou peuvent se  
rapporter soit aux  
renseignements qui  
figurent dans les livres ou  
registres du contribuable  
ou qui devraient y figurer,  
soit à tout montant  
examine the books and  
records of a taxpayer and  
any document of the  
taxpayer or of any other  
person that relates or may  
relate to the information  
that is or should be in the  
books or records of the  
taxpayer or to any amount  
payable by the taxpayer  
under this Act, and  
payable par le  
contribuable en vertu de  
la présente loi;  
[81] The Respondents emphasize that this text applies the power to inspect or examine to two  
categories of material. The first category is the books and records of the taxpayer, and the second  
category is any document of the taxpayer or of any other person that relates or may relate to  
certain types of information. While the language of this second category references information,  
the Respondents submit that reference cannot be read in isolation from the immediately  
preceding language. The second category of material that can be compelled is “…any document  
of the taxpayer or of any other person that relates or may relate to the information…” [Emphasis  
added].  
[82] The Respondents submit that it is not possible to interpret this language as authorizing  
compulsion of information other than information that is contained in a document. They also  
Page: 42  
compare this language with that of s 231.2(1), which expressly authorizes the Minister to require  
provision of information, as opposed to a document relating to information.  
[83] As with the first aspect of the statutory interpretation issue, the Respondents’ submissions  
do not particularly engage with the statutory purpose, which the Minister again emphasizes  
involves the provision of broad powers to audit taxpayers in supervising Canada’s self-reporting  
and self-assessing regulatory scheme. As with the first aspect, this purpose militates in favour of  
a generous interpretation of the scope of s 231.1(1)(a), but achieving the purpose cannot replace  
the language of the statute that Parliament has chosen (see Cameco at para 27). Under the first  
aspect, I agreed with the Minister that the words “inspect, audit or examine…” in s 231.1(1)(a)  
were sufficiently broad that, in keeping with the statutory purpose, they encompassed demands  
for the provision of documents. However, notwithstanding the importance of that purpose, I  
agree with the Respondents’ position that the words of s 231.1(1)(a) are not capable of being  
interpreted to encompass demands for information that is not contained in a document.  
[84] As the Respondents submit, Cameco provides strong jurisprudential support for their  
position. That case is not completely on point, as it addressed whether the Minister can compel  
oral answers to questions posed by CRA auditors (see para 1), as opposed to written answers as  
are at issue in the matters at hand. However, it is difficult to escape the conclusion that the  
reasoning of the Federal Court of Appeal, rejecting the Minister’s position that s 231.1(1)(a)  
provides authority to compel oral answers (see paras 1 and 12), applies also to compelling  
written answers.  
Page: 43  
[85] As in in the present matters, the respondent in Cameco argued that, relying on the plain  
and ordinary meaning of the text in s 231.1(1)(a), the powers conferred under that section are in  
respect of documented information, not any information (see para 10). In response, the Minister  
argued that the ability to compel oral responses to questions was implicit in the use of the word  
“audit” in that section (see para 16). The Federal Court of Appeal rejected that submission,  
noting that the power is to “inspect, audit or examine” and that neither “inspect” nor “examine”  
suggests a power to compel a person to answer questions. The Court reasoned that, when two or  
more words that are capable of analogous meetings are coupled together, they take their colour  
from each other, the more general being restricted to a sense analogous to the less general (at  
para 18).  
[86] As part of its textual analysis, Cameco also references s 231.1(1)(d). The parties disagree  
on whether Cameco engages in analysis of s 231.1(1)(d). In reliance on paragraph 21 of the  
decision, the Minister argues that it does not. In paragraph 21, the Court emphasizes that the  
disposition of the appeal turns on the scope of the power in s 231.1(1)(a) and that the extent to  
which s 231.1(1)(d) served as an independent power to compel attendance and answer questions  
of the nature proposed by the Minister in that case was not argued in the appeal.  
[87] Similarly, in the case at hand, the Minister emphasizes that she relies on s 231.1(1)(a),  
not s 231.1(1)(d), in support of her position that she can compel written answers to questions.  
Thus, as in Cameco, the Court need not arrive at a definitive conclusion on the meaning of s  
231.1(1)(d). That said, I disagree with the Minister’s submission that Cameco did not engage in  
analysis of s 231.1(1)(d). Such an analysis is clearly present in the decision and to some extent  
Page: 44  
informed the Court’s interpretation of s 231.1(1)(a). For that reason, it is worthwhile to canvas  
briefly that analysis.  
[88] Section 231.1(1)(d) requires the owner or manager, and any other person on the premises  
or place where s 231.1(1) powers are exercised, not only to give the authorized person all  
reasonable assistance but also “…to answer all proper questions relating to the administration or  
enforcement of this Act…”. Cameco explains that this assistance is distinct from responding to  
general questions with respect to tax liability or issues arising from the audit. The obligation to  
assist is in aid of the inspection, search, examination or review of records (at para 22). Questions  
may be asked, and the assistance of the Court can be sought to compel answers, but this relates to  
the taxpayer’s knowledge of the provenance and location of records (at para 13). Cameco relies  
on this interpretation of s 231.1(1)(d) to support its conclusion that there is no implied  
requirement to answer questions in s 231.1(1)(a). It reasons that such an interpretation would  
render unnecessary the obligation in s 231.1(1)(d) to answer questions, even of the limited scope  
contemplated by that section, and interpretations that render any portion of the statute  
meaningless or redundant should be avoided (at para 23).  
[89] Turning to context, Cameco notes the significance of s 231.1 immediately following s  
230, which imposes an obligation to keep books and records at a person’s place of business. The  
Court reasons that the purpose of the two provisions when taken together is to allow the Minister  
to independently verify, based on such records, tax liability and compliance with the Act. The  
Court concludes that independent verification through an audit is different from compelling  
answers to questions (at para 24).  
Page: 45  
[90] In its purposive analysis, Cameco emphasizes the point (cited earlier in these Reasons)  
that, however important the statutory objective of empowering the Minister to verify information  
received in the context of Canada’s self-reported taxation system, that objective cannot replace  
the language of Parliament (at para 27). The Court also notes that s 231.1(1)(a) is not the only  
source of the Minister’s investigative powers, citing other portions of the compliance provisions  
including the Minister’s power to seek information and documents under s 231.2 (at para 29).  
[91] In countering the Respondents’ reliance on Cameco, the Minister notes that the Court’s  
purposive analysis includes a reference to the purpose of s 231.1 including the facilitation of  
access to information of a taxpayer (at para 27):  
27. The purpose of section 231.1 is to facilitate the Minister’s  
unencumbered and immediate access to all books, records and  
information of the taxpayer and, in section 231.7, to provide  
recourse to the authority of the Court in the face of a refusal.  
[Emphasis added]  
[92] However, I do not read this statement in Cameco as suggesting that s 231.1 affords the  
Minister access to undocumented information, as that interpretation would be inconsistent with  
the overall conclusion in Cameco, that the Minister cannot compel oral answers to questions.  
Similarly, at the commencement of its textual analysis, Cameco describes the focus of the  
powers in paragraphs 231.1(1)(a) and (b) as squarely on the ability of the Minister to access  
“…information that is documented, or ought to be documented, in the books and records of the  
taxpayer” (at para 15). Again, taken in context, I do not read this description as suggesting the  
Minister can access undocumented information. Indeed, immediately thereafter, the Court notes  
that references to “books and records” and “documents” course consistently through s 231.1(1)  
Page: 46  
and cites BP Canada Energy Co v Minister of National Revenue, 2017 FCA 61 [BP Canada] at  
para 58, describing the section as encompassing documents which relate or may relate to the  
information that is or should be in the records of the taxpayer.  
[93] The statutory interpretation in Cameco concludes with consideration of the legislative  
history of paragraph 231.1(1)(a), which the Court notes resulted from 1986 amendments  
intended to provide clear limits to CRA’s enforcement powers. At paragraph 32 the Court sets  
out portions of the predecessor to the current section 231.1(1) (then s 231) and focuses in  
particular on certain language in s 231(c):  
(c) require the owner or manager of the property or business and  
any other person on the premises or place to give him all  
reasonable assistance with his audit or examination and to answer  
all proper questions relating to the audit or examination either  
orally or, if he so requires, in writing, on oath or by statutory  
declaration and, for that purpose, require the owner or manager to  
attend at the premises or place with him, and  
[Emphasis in Cameco]  
[94] Referring to the language in s 231(c) that is no longer found in the current s 231.1(1)(d),  
Cameco concludes that its reasoning in rejecting the Minister’s position is supported by the  
elimination of the word “orally” from the duty to answer questions, as well as the elimination of  
the obligation to give answers under oath or by statutory declaration.  
[95] As previously noted, I appreciate that the issue before the Federal Court of Appeal in  
Cameco related to demands for information to be provided orally, not in writing, and that the  
Court’s analysis was undertaken, and its reasons written, in that context. However, the above  
analysis of the legislative history appears equally supportive of the conclusion that the Minister  
Page: 47  
cannot compel written answers to questions. The language that Parliament eliminated in the  
transition from s 231(c) to s 231.1(1)(d) included not only the word “orally” but also the words  
“in writing” and, as Cameco notes, the reference to answers by statutory declaration.  
[96] Moreover, the Minister has identified no point of principle that would militate in favour  
of a different result in the context of demands to answer questions in writing rather than orally.  
In my view, the distinction underlying the reasoning in Cameco is between documented and  
undocumented information. Section 231.1(1)(a) empowers the Minister to compel provision of  
the former but not the latter.  
[97] The Minister cites a number of authorities in support of her position that the section  
authorizes demands for information, as distinct from documentation, and therefore compels the  
recipient of a demand to answer questions in writing. However, as with the first aspect of the  
statutory interpretation of s 231.1(1), while those cases may contain language or involve facts  
that are arguably consistent with the Minister’s position, they do not (with one exception, which  
I will canvass shortly) demonstrate the issue presently before the Court having been raised by the  
parties and subjected to judicial analysis.  
[98] For instance, the Minister relies on the recent decision of the Federal Court of Appeal in  
Friedman v Minister of National Revenue, 2021 FCA 101 [Friedman], which involved a demand  
issued by the Minister under s 231.1(1), enclosing a questionnaire which asked for details of the  
appellant taxpayers’ property. The taxpayers sought judicial review of this demand, and the  
Page: 48  
Minister sought a compliance order. The Minister prevailed before the Federal Court, and the  
Federal Court of Appeal dismissed the taxpayers’ appeal (see paras 1-3).  
[99] The Minister cites Friedman, because it is apparent that the questionnaire that formed the  
basis of the Minister’s s 231.1(1) demand sought, at least in part, answers to questions, i.e.,  
information as distinct from documentation (see, e.g., para 9). I do not disagree with this  
interpretation of the facts underlying Friedman. However, there is no indication in the decision  
that the issue presently before this Court, whether s 231.1(1) authorizes the Minister to compel  
answers to questions, was raised or argued in that appeal. Friedman provides no analysis of this  
issue and therefore cannot be regarded as authority supporting the Minister’s position.  
[100] The Minister also relies on the decision in Redeemer, referencing language employed by  
the Supreme Court of Canada in its interpretation of s 231.1(1)(a) that she argues supports her  
position (at paras 13 and 24):  
13. On its face, this section covers the situation at bar. It  
authorizes the Minister to examine “information that is or should  
be” in the Foundation’s books. The information at issue regarding  
third party taxpayers who had contributed to the Foundation was  
either in the Foundation’s books, or “should” have been in its  
books pursuant to the broad record-keeping requirements created  
by s 230(2).  
….  
24. As mentioned above, s 231.1(1) is broadly worded. It allows  
access to “information that is or should be in the books or records  
of the taxpayer”. It thus gives access to information about third  
parties that is required to be kept by the taxpayer, as well as  
information that may not be required to be kept but happens to be  
in the taxpayer’s records.  
[Emphasis in Redeemer]  
Page: 49  
[101] As the Minister submits, Redeemer refers to the Minister having access to “information”  
and does not state that such information must be contained in a document to be compellable.  
However, again, I do not read this decision as providing any analysis of the particular issue now  
before this Court. Redeemer does not refer to the fact that, in the s 231.1(1)(a) description of  
what an authorized person may inspect, audit or examine, the phrase “information that is or  
should be in the books or records of the taxpayer” is only part of the longer phrase “any  
document of the taxpayer or of any other person that relates or may relate to information that is  
or should be in the books or records of the taxpayer. Nor is there any indication in the decision  
that this issue was raised and argued before the Court.  
[102] Indeed, as pointed out by the Respondents at the hearing of these applications, the  
decision of the Federal Court of Appeal (Minister of National Revenue v Redeemer Foundation,  
2006 FCA 325 [Redeemer FCA]), which was under appeal in Redeemer, makes clear that this  
issue was not raised. The information at issue in Redeemer was a list of charitable donors to the  
appellant taxpayer. In Redeemer FCA, the Court explains as follows (at para 36):  
36. Section 231(2) requires the Foundation to maintain certain  
records to enable the Minister to ascertain if there are grounds for  
revoking the Foundation's registration as a charity, and to verify  
that the donations which are made to it are eligible for deduction.  
The Foundation is specifically required to maintain duplicates of  
all receipts which it issues to donors, including the name and  
address of the donor. (See Income Tax Regulations, C.R.C., c. 945  
at para. 3501(1)(g)). In short, the Foundation was required by law  
to maintain the information which the CRA auditor asked it to  
produce. As for whether the information was maintained in the  
form in which it was requested, i.e., a list, the demand was not  
resisted on that basis, perhaps because it is inconceivable that a  
charity would not maintain a list of its donors for various purposes  
related to fundraising.  
[Emphasis added]  
Page: 50  
[103] While it is not entirely apparent whether the list of donors was a pre-existing document  
when demanded by the Minister, it is clear that the appellant taxpayer was not raising the  
statutory interpretation issue that is presently before the Court in these applications.  
[104] As I noted above, the Minister relies on one authority that arguably supports her position.  
In the recent decision in Canada (National Revenue) v Miller, 2021 FC 851 [Miller], my  
colleague, Justice Walker, considered an argument similar to the one raised by the Respondents  
in the case at hand. Miller involved an application for a compliance order, related to outstanding  
information and documentation sought in a demand issued by CRA under s 231.1 of the Act.  
Among other arguments raised by the taxpayer, he relied on Cameco to resist the Minister’s  
submission that paragraph 231.1(1)(a) empowered her not only to access the taxpayer’s books  
and records but also to request written information relating to such books and records (see para  
24). The taxpayer emphasized the references in Cameco to the Minister being entitled to ask  
questions related to the provenance, location and maintenance of books and records. He argued  
that this authority limited the Minister’s ability to ask questions in reliance on s 231.1 to  
information relating to those concepts (see para 31).  
[105] The Court rejected this argument, concluding that it ignored two elements of the  
reasoning in Cameco. First, Cameco notes the importance of the words used by Parliament,  
including the reference in s 231.1(1)(a) to information that should be in the books and records of  
the taxpayer. Miller concludes that, if the information should be in the taxpayer’s books and  
records, the Minister must be able to gain access to that information in reliance on s 231.1(1) (at  
para 31). Second, Miller notes that Cameco reflects a concern as to the scope of the Minister’s  
Page: 51  
intended oral questions in that case, which did not relate to information that should have been set  
out in the taxpayer’s books and records (at paras 32-33).  
[106] Miller then applies its statutory interpretation analysis to the Minister’s particular  
requests for information at issue in that case, arriving at different results depending upon whether  
the particular information could be characterized as that which should have been documented in  
the taxpayer’s books and records. For instance, the Minister sought the terms and conditions of  
what appeared to be an oral contract to which the taxpayer was a party. Reasoning that this  
request related to information that the taxpayer should have documented in his records, the Court  
concluded that this information was proper subject matter for a compliance order (at paras 44-  
45). In contrast, the Court declined to include in the order a request for a narrative regarding the  
development of the taxpayer’s relationship with the other party to the contract, concluding that  
such a description is not information that should be in his books and records (at para 54).  
[107] The Respondents note that Miller is under appeal and submit that its reasoning is  
inconsistent with that of the Federal Court of Appeal in Cameco and fails to properly parse the  
language of s 231.1(1).  
[108] In my view, Miller correctly focused upon Cameco as the leading authority governing the  
statutory interpretation issue currently before the Court. However, I respectfully disagree with  
the conclusion in Miller that Cameco teaches that the governing consideration is whether the  
information sought by the Minister should have been in the taxpayer’s books and records. As  
noted earlier in these Reasons, Cameco (at para 15) cites the explanation in BP Canada (at para  
Page: 52  
58), consistent with the text of s 231.1(1), that the section encompasses documents which relate  
or may relate to the information that is or should be in the records of the taxpayer.  
[109] Cameco also notes the distinct references in s 231.1 to “books and records” and  
“documents” (at para 15). As I read the compliance provisions of the Act, the meaning of “books  
and records” is informed by s 230, which requires taxpayers to keep records and books of  
account in such form and containing such information as will enable determination of, inter alia,  
taxes payable under the Act. The term “document” is in turn defined by s 231 to include money,  
security and a record. Therefore, “document” is a broader term than “record” and, at least  
potentially, encompasses records within the meaning of s 230 as well as other forms of  
documentation that may not fall within that meaning.  
[110] Against that backdrop, if an authorized person seeks to compel the provision of  
documentation that does not qualify as “the books and records of the taxpayer”, and is relying on  
the potentially broader power to compel “any document of the taxpayer or of any other person  
that relates or may relate to the information that…should be in the books or records of the  
taxpayer”, then I would agree with the reasoning in Miller that it is essential to ask whether the  
nature of the information is such that it should be in the books or records. However, an  
affirmative answer to this question is a necessary but not a sufficient condition for reliance on  
that power. The authorized person must also be seeking a document that relates or may relate to  
this information, as it is clear from the language of s 231.1(1)(a) that it is a document that the  
person is empowered to inspect, audit or examine. To the extent that Miller concludes otherwise,  
I respectfully decline to follow it.  
Page: 53  
[111] Having considered the various arguments and authorities, my conclusion on the second  
aspect of the statutory interpretation issue is that the Respondents are correct in their position  
that s 231.1 of the Act does not authorize issuance of a demand compelling the recipient to  
provide, through written answers to questions, substantive information relevant to a taxpayer’s  
tax position.  
(3) Conclusion on Statutory Interpretation of s 231.1(1) of the Act  
[112] Before leaving this issue, I note that in some cases, the Respondents have framed their  
arguments on this issue as a submission that the Requests are in “pith and substance” in the  
nature of Requirements. The Respondents further argue that, if reframed as Requirements, they  
would nevertheless be invalid for various technical reasons (for instance, related to the authority  
of the issuing individual or the method of service). In my view, the appropriate analysis is not to  
identify the “pith and substance” of the Request and then potentially consider whether it  
complies with s 231.2 as a Requirement. Rather, the required analysis is that performed above,  
i.e., considering whether s 231.1 provides the authority for the Request. I note that I do not  
understand the Minister to be arguing that, to the extent she does not succeed in full on the  
statutory interpretation issue, the Requests can be rehabilitated by analysing them as  
Requirements. Therefore, to the extent a particular Request may be invalid because, consistent  
with my conclusions above, it demands provision of previously undocumented information, I do  
not intend to examine whether that Request would be validly issued if treated as a Requirement  
under s 231.2.  
Page: 54  
[113] As will be apparent from the above analyses and conclusions, the parties have met with  
divided success on the issue surrounding statutory interpretation of the scope of s 231.1(1). As  
will be explained later in these Reasons when addressing the “severance” issue, my conclusion is  
that, if certain Demands include both valid and invalid items, I have discretion to order  
compliance with the valid portions, notwithstanding the invalidity of other portions. It will  
therefore be necessary for the Court to decide how the conclusions on the statutory interpretation  
issue apply to individual items in the Requests and, as a result, which items are valid because  
they represent a demand for documentation and which are not valid because they represent a  
demand for undocumented information.  
[114] At the conclusion of the hearing, recognizing that some form of divided success on this  
issue was a possible result in these applications, I raised with counsel the question of whether the  
Court should perform this process, applying the statutory interpretation conclusions to the details  
of the individual items in the Requests, without receiving further submissions from the parties.  
There may be some items where this process is straightforward and others where it is less so, as  
there could be a debate on whether a particular item falls into the valid or invalid category.  
[115] The Minister’s counsel took no position on the process question but explained that the  
Minister was prepared to provide additional submissions if that would be of assistance to the  
Court. The Respondents’ counsel advised that they would prefer an opportunity to provide  
submissions. Now that the outcome of the statutory interpretation issue is known, my view is that  
seeking further submissions is appropriate and will be useful to the Court. As such, when I  
analyze the individual Requests and Requirements later in these Reasons, I will not be applying  
Page: 55  
the statutory interpretation conclusions in that analysis. At the end of these Reasons, after  
addressing the other issues before the Court, I will return to the process for seeking further  
submissions to progress these compliance applications to conclusion.  
D. Whether the individuals who issued the Demands were authorized to do so  
[116] There is a distinction between those who are authorized to issue Requests under s 231.1  
of the Act and those who are authorized to issue Requirements under s 231.2. Section 231.1(1)  
confers such authority upon an “authorized person”, a term which is defined by s 231 to mean “a  
person authorized by the Minister for the purposes of sections 231.1 to 231.5”. In contrast, s  
231.2 confers authority upon the Minister herself, although s 220(2.01) allows the Minister to  
authorize an officer or a class of officers to exercise powers of the Minister under the Act.  
[117] For each of the Requests and Requirements at issue in these applications, the  
Respondents submit that the applications must fail, because the Ministers failed to adduce  
evidence that the Request or Requirement was authorized in accordance with the provisions  
described above. Essentially, the Respondents take the position that the Minster bears a burden  
of proof on this point and has failed to meet that burden.  
[118] In response, the Minister relies on a rebuttable presumption of validity identified in  
applicable jurisprudence. This presumption was explained in Branigan v Canada (Minister of  
Citizenship & Immigration), 2004 FC 245, which considered an argument that a report under s  
44(1) of the Immigration and Refugee Protection Act, SC 2001, c-27 [IRPA] and s 44(2) referral  
to the Immigration Division for an admissibility hearing were invalid, because they did not  
Page: 56  
disclose that they were issued by persons designated by the relevant minister, or to whom the  
minister had delegated authority under IRPA. In rejecting this argument, Justice Lemieux held as  
follows (at para 9):  
9. There is no merit to this argument because there is a  
presumption of validity and the applicant has adduced no evidence  
to impugn the authority of those persons who issued the  
documents. I need only cite a few paragraphs of what Justice  
Létourneau said in Canada (Minister of Human Resources  
Development) v. Weimer [1998] F.C.J. 809 (C.A.).  
12. The approval of Mrs. Kukat's application for division of  
earnings was given on an official form issued by the Division  
of Unadjusted Pensionable Earnings ("Pension Credits")  
Canada Pension Plan and signed, in a section reserved to office  
use only, by a M. Ali under a heading called "Authorized  
Signature". As Walsh J. said in Kightley v. Registrar of Trade  
Marks et al. (1982), 65 C.P.R. (2d) 36, at p. 42 (F.C.T.D.), "it  
would certainly require great temerity and irresponsibility on  
the part of a party signing such a letter purporting to be signed  
on behalf of a senior officer if he did not have the authority to  
so act". [Emphasis mine]  
13. The fact is that a person who signs, or purports to sign, for  
a senior officer in a department benefits from a presumption  
that he or she has the authority that he or she purports to  
exercise until such time as the presumption is rebutted (Ali v.  
Minister of Manpower and Immigration, [1976] 1 F.C. 185, at  
pp. 188-89 (Fed. C.A.); Molson Companies Ltd. v. John Labatt  
Ltd. et al., (1984), 1 C.P.R. (3d) 329, at p. 334 (F.C.T.D.)).  
14. No evidence whatsoever has been adduced by the  
Respondent which could cast the slightest doubt that the person  
who signed was not authorized to sign the approval and which  
could have, if not rebutted, at least sufficiently undermined the  
presumption of validity which attaches to the signature of an  
official document so as to displace the burden and put on  
governmental officials the obligation to establish the validity of  
the signature as well as the existence of a proper authority  
vested in the signatory. Mere unsubstantiated allegations or  
speculations by the Respondent are not sufficient to displace  
the presumed authority under subsection 24(2) of the  
Interpretation Act and the presumption of validity of the  
signature.  
Page: 57  
[119] To the same effect, in the more recent decision, Lim v Canada (Citizenship and  
Immigration), 2019 FC 871, Justice Gleeson also relied on Canada (Minister of Human  
Resources Development) v Weimer [1998] FCJ 809 (CA), 228 NR 341 [Weimer] in recognizing  
that, where an authority is exercised, the person doing so benefits from a strong presumption of  
having acted with proper authorization until such time as that presumption is rebutted with  
convincing evidence that the decision-maker in fact lacked the required authority (at para 22).  
[120] I find that the Minister bears no evidentiary burden on this point, at least not in the  
absence of any evidence from the Respondents challenging the authority of those who issued the  
Requests and Requirements. In the words of Weimer, the Respondents’ position amounts to  
unsubstantiated allegations or speculations, which are not sufficient to displace the presumption  
of authority and validity from which the Minister benefits.  
[121] I note that, in relation to the Requirements and the delegation of the Minister’s authority  
under s 231.2 of the Act, the Minister also seeks to rely on what she describes as CRA’s  
delegation matrix, included in the Minister’s Book of Authorities. The Minister points out that,  
under the heading of s 231.2(1), the delegation matrix refers to a number of positions including  
Manager, Audit, which is significant as all the Requirements at issue in these applications were  
issued by an individual named John Harasymchuk, with the title Manager, Audit.  
[122] The Respondents oppose the Minister’s reliance on the delegation matrix, arguing that it  
does not have the status of a statutory instrument such that it can be included in a book of  
authorities without further proof. The Respondents take the position that, if the Minister wished  
Page: 58  
to rely on the delegation matrix, she was required to include it in the record as an exhibit to an  
affidavit. The Minister disputes this position, asserting that the delegations identified in the  
matrix are authorized by statute and that the delegation matrix is publicly available on CRA’s  
website.  
[123] I find the Respondents’ arguments on this subject somewhat inconsistent, as their own  
written submissions include an effort to rely on what appears to be an extract from the delegation  
matrix on CRA’s website. Those submissions assert that the website indicates the Minister has  
authorized only certain categories of persons for the purposes of s 231.1, all at the Director  
General, Director, or Assistant Director level. The Minister has convincingly refuted that  
argument, explaining that this portion of the delegation matrix identifies not those positions that  
are authorized to issue demands under s 231.1, but rather those positions to which the Minister  
has delegated the authority to authorize persons to issue such demands.  
[124] That said, as a matter of principle, in the absence of a more compelling legal argument  
from the Minister that the Court is entitled to rely upon the delegation matrix as a statutory  
authority, I agree with the Respondents’ position that the proper method to place this information  
before the Court, if necessary to address an issue in dispute, is through evidence. However, for  
purposes of the present applications, the Minister succeeds on this issue without needing to rely  
on the delegation matrix. In the absence of any evidence or meaningful argument by the  
Respondents challenging the authority of those who issued the Requests or Requirements, the  
Minister benefits from the presumption of validity, and I find that the persons who issued the  
Page: 59  
Demands were authorized to do so. Given the breadth of this conclusion, it will not be necessary  
for me to revisit this issue when addressing the individual Demands later in these Reasons.  
E. Whether the Respondents were properly given notice of the Demands  
[125] The Respondents take the position, in particular in relation to the Requirements at issue  
in these applications but also in relation to Requests, that they were not provided to them in  
manner which represents proper notice. Section 231.2(1) expressly provides that a Requirement  
must be served personally or by registered or certified mail. The Respondents take the position  
that the Minister has a burden to adduce evidence establishing proper service and that she has  
failed to do so. Section 231.1(1) does not prescribe particular methods of giving notice to the  
recipient of a Request. However, the Respondents again raise arguments that particular methods  
employed by the Minister were not adequate.  
[126] In relation to the Requirements, the Minister’s position is that all Requirements in all six  
applications were sent to the relevant Respondent by registered mail, a method that complies  
with s 231.2. The Minister relies on the evidence of Mr. Bowe in each application to establish  
that service was properly effected in this manner. In response, the Respondents raise a particular  
argument based on s 244(5) of the Act, which prescribes as follows a method of proving service  
by mail:  
Proof of service by mail  
Preuve de signification par  
poste  
244(5) Where, by this Act or a 244(5) Lorsque la présente  
regulation, provision is made loi ou son règlement prévoit  
for sending by mail a request  
for information, notice or  
demand, an affidavit of an  
l’envoi par la poste d’une  
demande de renseignements,  
d’un avis ou d’une demande  
Page: 60  
officer of the Canada Revenue formelle, un affidavit d’un  
Agency, sworn before a fonctionnaire de l’Agence  
commissioner or other person du revenu du Canada,  
authorized to take affidavits, souscrit en présence d’un  
setting out that the officer has commissaire ou d’une autre  
knowledge of the facts in the  
particular case, that such a  
personne autorisée à  
recevoir les affidavits,  
request, notice or demand was indiquant qu’il est au  
sent by registered letter on a  
named day to the person to  
whom it was addressed  
courant des faits de l’espèce,  
que la demande, l’avis ou la  
demande formelle en  
(indicating the address) and  
that the officer identifies as  
exhibits attached to the  
question a été adressée, par  
lettre recommandée, à une  
date indiquée, à la personne  
à qui elle a été adressée  
affidavit the post office  
certificate of registration of  
(fournissant cette adresse) et  
the letter or a true copy of the qu’il identifie comme pièces  
relevant portion thereof and a attachées à l’affidavit, le  
true copy of the request,  
certificat de  
notice or demand, shall, in the recommandation de la lettre  
absence of proof to the  
contrary, be received as  
fourni par le bureau de poste  
ou une copie conforme de la  
evidence of the sending and of partie pertinente du certificat  
the request, notice or demand. et une copie conforme de la  
demande, de l’avis ou de la  
demande formelle, doit être  
reçu comme preuve, sauf  
preuve contraire, de l’envoi  
ainsi que de la demande, de  
l’avis ou de la demande  
formelle.  
[127] The Respondents take the position that compliance with s 244(5) is mandatory, i.e., that  
this is the only means by which the Minister can prove by affidavit service by registered mail for  
purposes of Requirements issued under s 231.2(1). To the extent Mr. Bowe’s evidence does not  
comply with s 244(5), for instance by failing to attach as an exhibit the post office certificate of  
registration of the registered letter, the Respondents argue that the Minister has not met her  
burden to prove service and a compliance order cannot be issued in relation to the relevant  
Requirement.  
Page: 61  
[128] In response, the Minister refers to court to Boroumend v The Queen, 2016 TCC 256, in  
which the Tax Court described s 244(5) as a simple mechanism by which the Minister can prove  
mailing by registered mail (at para 8), but also stated that the fact the Minister does not have the  
evidence to rely upon s 244(5) does not mean that the Minister cannot prevail. Rather, it means  
that the Minister must use other means to prove, on a balance of probabilities, that the relevant  
notice was mailed (at para 10).  
[129] In support of their position, the Respondents rely on Luxury Home Landscape  
Construction Inc v The Queen, 2021 TCC 4 [Luxury Home] at para 24, in which Justice Russell  
of the Tax Court considered the Minister’s efforts to prove through affidavit evidence service of  
a notice of confirmation of an excise tax assessment. That evidence did not met the requirements  
of the ETA provision (s 355(1)) comparable to s 244(5), because it failed to attach the post office  
certificate of registration. The Court confirmed that the use of that provision was not the only  
means to prove that the relevant notice had been sent by registered mail, noting that the Minister  
could have called one or more witnesses to provide viva voce evidence based on personal  
knowledge. However, as the Minister had chosen the option of adducing the necessary evidence  
by affidavit, the Court held that s 335(1) was engaged, as this provision specifies what  
Parliament intended to be required in order to prove by affidavit that a notice has been sent by  
registered mail (at para 24).  
[130] The Respondents therefore argue that, as the Minister seeks to rely on affidavit evidence  
in the applications at hand in order to prove service of the Requirements, that evidence is not  
sufficient unless it complies with s 244(5). However, I agree with the Minister’s response that  
Page: 62  
the analysis in Luxury Home must be considered in the context of the particular proceeding and  
issue that was before the Tax Court. That case involved a motion to quash a notice of appeal on  
the basis that it was filed out of time. As such, the date that CRA sent the notice of confirmation  
to the taxpayer was the date the appeal period began to run, and thus was essential to the  
determination of the issue before the Court.  
[131] Following his observation that s 335(1) specified what Parliament intended to be required  
to prove by affidavit that a notice had been sent by registered mail, Justice Russell referred to the  
importance of this evidence, because it commences, effective the “sent” date, the running of the  
appeal period (at para 24). The taxpayer had adduced evidence that it never received CRA’s  
notice of confirmation. In addition, the affidavit adduced by the CRA appeals officer assigned to  
the matter included correspondence with Canada Post that raised questions as to what happened  
to the intended registered letter. It is therefore not surprising that, in dismissing the Minister’s  
motion to quash the appeal, the Court was concerned that CRA’s affidavit failed to include the  
post office certificate of registration as required by s 335(1) of the ETA.  
[132] Against that factual backdrop, I do not read Luxury Home as a statement of general  
principle that, if the Minister chooses to establish service of a Requirement through affidavit  
evidence, that evidence will invariably be insufficient if it does not comply with s 244(5) of the  
Act, regardless of the other evidence or particular issue before the Court. Rather, in my view, it  
is necessary to consider the particular evidence upon which the Minister relies in these  
applications, in the context of the arguments raised by the Respondents that the applications  
should fail based on the service issue.  
Page: 63  
[133] I agree with the Respondents’ submission that, in a compliance application, whether  
based on a Request or a Requirement, the Minister should bear the onus to prove service of the  
relevant Demand. As identified earlier in these Reasons, the statutory conditions include the  
existence of an obligation under ss 231.1 or 231.2 of the Act. This obligation does not exist  
unless the recipient has notice of the Demand.  
[134] As noted above, the Minister relies upon the evidence of Mr. Bowe to establish service of  
the Requests and Requirements in all six applications. With respect to the Requests, the methods  
of service upon which the Minister relies vary somewhat in different applications. As such, I will  
address the service issue in connection with the Requests later in these Reasons, when  
considering other issues specific to the individual applications and Demands. However, with  
respect to the Requirements, the Minister relies upon service by registered mail in all  
applications, and the evidence of Mr. Bowe is relatively consistent across all matters. It is  
therefore efficient to address the service issue in relation to the Requirements at this juncture.  
[135] In each application, and in relation to each Requirement that is the subject of the  
application, Mr. Bowe swears in his affidavit that CRA sent the Requirement to the relevant  
Respondent by registered mail, noting the date of the Requirement and attaching a copy as an  
exhibit to the affidavit. The Respondents cross-examined Mr. Bowe in each of the applications  
and, in some cases, focused specifically upon his knowledge of CRA’s service of the relevant  
Requirements. For instance, as emphasized by both parties at the hearing, the Respondents’  
counsel cross-examined Mr. Bowe in T-261-19 (Raphael Ghermezian) on his knowledge of the  
two Requirements at issue in that application, identified as A-RUST-0103 and A-GDT-0101.  
Page: 64  
[136] In relation to A-RUST-0103, Mr. Bowe confirmed that he did not witness the document  
leaving CRA’s mailroom or going to Canada Post, i.e., he did not witness the physical mailing of  
the letter. However, he also testified that A-RUST-0103 was sent by registered mail, delivered  
on January 24, 2019, and accepted at what he referred to as the “Triple Five head office” at the  
address shown on the copy of the Requirement attached as an exhibit to his affidavit (i.e., 3000,  
8882 - 170 Street, Edmonton, Alberta, T5T 4M2 [the Edmonton Address]). He also testified that  
he has in the audit file a registered mail confirmation and the outgoing mail request form,  
although he realizes that this documentation was not attached to his affidavit.  
[137] When challenged that he did not know for a fact whether the registered mail was  
delivered to or signed for by Raphael Ghermezian, Mr. Bowe noted that the initials on the  
registered mail delivery slip were “R.G.” (Raphael Ghermezian’s initials) although he  
acknowledged he had no confirmation that R.G. was actually Mr. Ghermezian.  
[138] When challenged as to his personal knowledge of the mailing of A-RUST-0103, Mr.  
Bowe testified that his student employee sent the letter to the mailroom with a registered mail  
request slip attached to it. He explained that, as the employee’s supervisor, he has personal  
knowledge of what happened within the audit file, but he did not personally send it from the  
mailroom.  
[139] When challenged as to his knowledge whether the registered mail was received by Mr.  
Ghermezian, Mr. Bowe responded that he believed Mr. Ghermezian received it, because he  
subsequently filed a judicial review application with respect to A-RUST-0103.