Canada: CRA GAAR committee documents compelled – Superior Plus Corp v the Queen

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Canada: CRA GAAR committee documents compelled – Superior Plus Corp v the Queen

kroft.jpg

richardson.jpg

Ed Kroft, QC


Casey Richardson-Scott

The Tax Court of Canada recently considered a taxpayer's entitlement to access records and information during the examination for discovery process regarding the Canada Revenue Agency (CRA) decision to apply the general anti-avoidance rule (GAAR). In Superior Plus Corp v the Queen 2015 TCC 132, the taxpayer had appealed an assessment based, in part, on the decision of the CRA to apply the GAAR to a conversion of an income trust to a Canadian corporation. The taxpayer brought a motion to compel the CRA to answer questions that were refused during examination for discovery, to produce un-redacted copies of certain documents, and to produce documents for which production was refused outright, all pertaining to the CRA's decision to apply GAAR in the circumstances and to the underlying policies in the Income Tax Act (Canada) (ITA) that the CRA determined had been abused. The CRA had principally refused to answer the questions and produce the documents at issue on the basis of relevance.

In its decision, the Tax Court of Canada emphasised that the relevance threshold at the discovery stage is low. The court ultimately ordered that a majority of the refused questions be answered, and that a majority of the refused documents be produced in un-redacted form. Specifically, the court ordered that questions regarding the following be answered:

  • Facts, information or knowledge contributing to the Attorney General's position to be taken at trial;

  • Facts, information or knowledge regarding the Department of Finance's considerations as to whether to make a subsequent amendment to the ITA retroactive; and

  • The Attorney General's understanding of the policy regarding loss trading under the ITA, as well as the policy underlying the introduction of the SIFT conversion rules.

The court further ordered that the following types of documents be produced in un-redacted form:

  • GAAR committee meeting notes and minutes;

  • Memoranda to file written by CRA auditors;

  • Emails between CRA officials and auditors regarding the GAAR and loss trading; and

  • Memoranda to the GAAR committee from the Aggressive Tax Planning division of the CRA.

In summary, the Superior Plus Corp. decision appears to permit taxpayers to access GAAR committee communications, meeting minutes, and memoranda. The decision may help to encourage CRA transparency in the discovery process, particularly in matters concerning the GAAR or perhaps even when taxpayers seek such information through Freedom of Information processes.

Ed Kroft, QC (ed.kroft@blakes.com) and Casey Richardson-Scott (casey.richardsonscott@blakes.com), Toronto

Blake, Cassels & Graydon

Tel: +1 416 863 2500/+1 604 631 5200 and 1 416 863 4024

Website: www.blakes.com

more across site & shared bottom lb ros

More from across our site

If the Reform leader becomes UK prime minister then he may follow the direction of the US in at least one significant way
Trump declared a new national emergency in issuing the order; in other news, Grant Thornton Germany is up for sale and the subject of interest from both its UK and US counterparts
The judgment, which saw Denmark's Supreme Court rely on OECD TP guidance, sets aside more than 15 years of consistent administrative practice, experts have told ITR
Belgium’s new coalition government has gone ahead with a new exit tax regime that could land it in the courts
Brazil’s government has not officially framed the bill as a countermeasure amid trade tensions with the US, but the move is being considered as part of Brazil’s strategic response, one expert tells ITR
Understanding India’s income tax landscape can help charities ensure compliance, optimise tax benefits, and enhance their impact, writes Raghav Bajaj of Khaitan & Co
Tax advisers in Brazil are rising above the country’s notoriously complex tax system to deliver high-quality advisory services, ITR’s exclusive in-house data reveals
ITR’s data has highlighted the US firm’s ambition to become America’s ‘premier’ tax player via a concerted partner recruitment strategy
Jaap Zwaan’s arrival continues a recent streak of A&M Tax investing in the region; in other news, the US and Japan struck a deal that significantly lowered tariff rates
In a world where international tax concepts rely on human activity, Leonard Wagenaar poses existential questions about the future of such ideas when AI is ever-present
Gift this article