The Supreme Court of Canada (SCC) has dismissed an appeal from a tax lawyer seeking access to information on the Ontario government’s deliberations about a decision to close a tax loophole that created a retroactive liability for taxpayers, ruling that the information represents “advice”, which is exempt from public disclosure laws.

The high court handed down a decision Friday on an appeal brought by the unnamed lawyer, identified only as “John Doe”, and the Information and Privacy Commissioner of Ontario (IPC), which ordered the disclosure by the Ontario Ministry of Finance.

According to the SCC decision, the lawyer sought access to records from Finance after it revised tax laws to eliminate the loophole for tax haven corporations, with amendments that were partially retroactive. He requested information on the issue of retroactivity on behalf of taxpayers that were concerned about the impact of this retroactivity on their tax liability, the decision notes.

The records in question are drafts of a policy options paper examining the possible effective dates of the amendments, which formed part of the briefings for the Finance minister and other top officials, and one of these options was eventually enacted, resulting in the amendments that imposed the partially retroactive liability.

Finance initially denied the disclosure request, which was overturned by the IPC, and the IPC’s decision was then itself reversed by the Court of Appeal, which found that the disclosure order was unreasonable.

The lawyer and the IPC appealed to the SCC, which sided with the appellate court, and dismissed their appeal.

“The records in this case present the opinions of public servants on the advantages and the disadvantages of alternative effective dates of legislative amendments,” the SCC said, noting that these opinions helped the ministry make a decision on the effective dates of the changes.

“These policy options, whether communicated or not to anyone, constitute “advice”… and thus qualify for exemption from disclosure,” the SCC ruled.

The high court said that the IPC’s ruling that the opinions didn’t reveal a suggested course of action, and so shouldn’t count as advice, too narrowly interprets the definition of advice. “By leaving no room for advice to have a distinct meaning from recommendations, the adjudicator’s decision was unreasonable,” it said.

The SSC also said that drafts of policy papers should be protected from disclosure, not just final versions. “Protection from disclosure would be illusory if only a communicated document was protected and not prior drafts,” it said; adding that in order for public servants to be confident in providing frank advice, the disclosure exemption “must be ascertainable at the time the public servant prepares the advice.”