May 9, 2013, Decision of Dan Ish, Q.C.

On September 21, 2010, the IAP Oversight Committee (OC) approved CAD-8, which allowed provided for adjudicator-supervised release of potentially relevant admissions of staff knowledge (and/or inadequate supervision / failure to take reasonable steps) to Claimant Counsel, where the admissions produced by Canada as part of the evidentiary package were deemed to be incomplete.

On the same date, OC also passed, without dissent, the following motion:

On September 20, 2012 (after the expiration of the time for filing applications under the IAP), Canada will provide the Chief Adjudicator with a Master List containing a complete list of such admissions made to that date, and will update the list monthly until the conclusion of the IP. The Chief Adjudicator may release information from such Master List to Claimant Counsel on such terms as in his discretion he deems appropriate.

The last sentence of the motion delegated to the Chief Adjudicator (CA) the responsibility to determine release of information from the Master List to Claimant Counsel on terms deemed appropriate. After receiving comprehensive written submissions from Claimant Counsel representatives on OC and Canada, the CA concluded that as of June 17, 2013 or as soon as practicable thereafter, the Master List would be made available to Claimant Counsel on the internal IAP Decisions Database, upon Counsel providing an electronic certification and undertaking limiting the use of such material.

The CA rejected the following submissions by Canada:

1. That the CA was without jurisdiction to decide the matter;
2. That since the making of admissions was voluntary on Canada’s part, there was no legal obligation to produce anything beyond what CAD-8 allows (the CA noted that the IAP Appendix VIII (p. 30) places a positive duty upon Canada to make admissions, an exception to the general rule that the IAP does not provide authority to make orders compelling Canada to produce documents);
3. That CAD-8 was an exhaustive summary of what was required of Canada in respect of admissions;
4. That the wording of the resolution delegating authority to the CA indicates that the Master List itself was not to be disclosed.

The possibility of fraud in the IAP does exist. The CAO has taken serious steps to thwart such attempts in the past. However, within the context of admissions of knowledge, fabricating testimony is a possibility completely irrespective of whether or not Claimant Counsel has access to the full list of admissions of knowledge. Moreover, the IAP was not written on the assumption that there would be rampant perjury in the claims hearing process and there is no reason now to base the interpretation of Appendix VIII on such as assumption. And, if the Claimant’s evidence at a hearing differed substantially from the information contained in the application and if that evidence was leaning toward fitting within an admission, the vigilance of both Canada’s representative at the hearing and the Adjudicator would bring close scrutiny to such evidence. There is no reason to believe that this type of evidence would receive an “easy pass”; rather, the opposite would be the case.

The most compelling reason to release the list to Claimant Counsel, with conditions, is that fundamental due process demands that an interested party cannot be solely in control of information or evidence that may affect the substantive right of an opposing party. In the civil courts there are procedures in place to ensure that full disclosure occurs. The accuracy of the Master List itself under the present regime is difficult to test.

The integrity of the IAP requires that the Master List be made available to Claimant Counsel. There are important principles of fairness at stake and issues related to equity among claimants. Claimant Counsel’s reference to admissions subsequently made after a prior claim has been dealt with in the IAP is extremely persuasive. The timing of the filing of an application and the hearing in the IAP should not be determinative of the rights of the respective claimants with respect to the issue of knowledge by staff of abuse at the IRS attended by a claimant.

The CAO will release the Master List to Counsel upon the professional undertaking of counsel being provided. The release of this list will is not extended to self-represented claimants, but adjudicators will be instructed to be vigilant in acting under CAD-8, to ensure that such claimants have access to the most up-to-date admissions regarding their claims.