By Ryan M. Prendergast

In a recent decision dated June 10, 2025, the Federal Court of Appeal (“Court”) addressed the obligation of the Canada Revenue Agency (“CRA”) to produce material relevant to an application for judicial review or to an appeal under Rules 317 and 318 of the Federal Court Rules (“Rules”). The case highlights the CRA’s disclosure obligations when a charity’s registration is revoked, particularly where allegations of bias and procedural fairness are raised.

The Court in Jewish National Fund of Canada Inc. v. Canada (National Revenue), considered a motion brought by the Jewish National Fund of Canada Inc. (“JNF”) against the Minister of National Revenue (“Minister”), seeking the production of additional documents as part of JNF’s ongoing appeal challenging the Minister’s decision to revoke its registration as a charity.

The Minister issued a notice of intention to revoke (“NITR”) JNF’s charitable status on August 20, 2019, and a notice of confirmation (“Confirmation”) revoking JNF’s charitable status on June 26, 2024. JNF argued in its Notice of Appeal that:

1. there was a reasonable apprehension of bias on the part of the Minister in issuing the Confirmation;
2. the Minister erred in fact and law in issuing the NITR and Confirmation; and
3. the process followed by the Minister was procedurally unfair.

In preparing for the appeal, JNF requested unredacted certified copies of a broad range of materials prepared or considered by the CRA or by the Minister, in reaching the decision to revoke JNF’s charitable status, including:

• documents received from or sent to third parties by CRA in respect of JNF before the NITR was issued,
• materials related to CRA’s audit of JNF, and
• records of communications from CRA offices to the head of the Charites Directorate and other individuals.

The Minister provided a Certified Tribunal Record (CTR) and an affidavit sworn by a Manager of the Charities Section, Tax and Charities Appeals Directorate of CRA, asserting that the CTR was complete, but JNF argued that key categories of documents remained missing from the CTR, and the Minister did not provide sufficient reasons for redactions in certain documents contained.

The Court stated that the principles governing a tribunal’s obligation to produce material relevant to an appeal under Rules 317 and 318 of the Rules, are well established. Material relevant to an appeal must be produced and, in an appeal, relevance is defined by the grounds of appeal in the Notice of Appeal. Where there is an allegation of breach of procedural fairness, reasonable apprehension of bias, or bias, in a notice of appeal, the scope of disclosure broadens to include documents “in the possession, control or power of a tribunal that are relevant to the allegations of bias or breach of procedural fairness”. However, requests for disclosure cannot become a "fishing expedition" and assertions of privilege must be properly supported.

On the issue of disclosure of materials relating to allegation of bias, the Court held that JNF had raised a credible allegation of bias, which triggered a broader disclosure obligation. The Minister was ordered to conduct a supplementary search for additional documents related to bias allegations, including communications from and to the public, even if such communications involved CRA personnel outside the Charities Directorate or Appeals Branch. The Court also required the Minister to serve and file an updated affidavit detailing the nature and scope of this supplementary search.

Regarding JNF’s argument that the CTR did not include all the materials considered by the Charities Directorate in issuing the NITR, the Court found that JNF had not established the existence of additional relevant materials considered by the Charities Directorate. The only additional production ordered by the Court was the inclusion of draft media lines intended for use by CRA spokespersons.

The Court upheld JNF’s argument that certain relevant documents, referenced in materials already contained within the proposed CTR, had not been included. As a result, the Court ordered the Minister to produce the identified documents. In response to JNF’s submission that the Minister failed to conduct a proper search of his records, the Court ordered a supplementary search of CRA’s records, including records of the Charities Directorate, to be conducted by senior representatives of CRA to ensure the required disclosure has been made.

On the issue of redactions, the Court found that while taxpayer confidentiality must be protected, the Minister had not provided sufficient justification for redactions made on the basis of privilege. Consequently, the Court ordered a process where contested redactions would be reviewed by the Court in unredacted form, to assess the validity of the privilege claim. The Minister’s separate motion to substitute a corrected CTR was deferred pending the completion of the additional steps ordered by the Court.

This decision clarifies that registered charities in Canada in appealing revocation decisions may be entitled to broader disclosure of internal communications, third-party correspondence, and materials not directly before the decision-maker, if such documents are relevant to claims of bias. The decision also highlights the CRA’s obligation to conduct a proper search of its records, disclose/produce all relevant documents and justify any redactions made on the basis of privilege.

​Read the June 2025 Charity & NFP Law Update