Digital Services Tax Act (S.C. 2024, c. 15, s. 96)

Marginal note:Definition of foreign-based information or record

• 104 (1) For the purposes of this section, foreign-based information or record means any information or record that is available or located outside Canada and that may be relevant to the administration or enforcement of this Act.

• Marginal note:Requirement to provide foreign-based information

  (2) Despite any other provision of this Act, the Minister may, by notice served personally, sent by confirmed delivery service or sent electronically, require a person resident in Canada or a non-resident person that carries on business in Canada to provide any foreign-based information or record.

• Marginal note:Content of notice

  (3) A notice referred to in subsection (2) must set out

  • (a) a reasonable period of not less than 90 days for the provision of the information or record;

  • (b) a description of the information or record being sought; and

  • (c) the consequences under subsection (8) to the person of the failure to provide the information or record being sought within the period set out in the notice.

• Marginal note:Review by judge

  (4) If a person is served or sent a notice of a requirement under subsection (2), the person may, within 90 days after the day on which the notice was served or sent, apply to a judge for a review of the requirement.

• Marginal note:Powers on review

  (5) On hearing an application under subsection (4) in respect of a requirement, a judge may

  • (a) confirm the requirement;

  • (b) vary the requirement if the judge is satisfied that it is appropriate to do so in the circumstances; or

  • (c) set aside the requirement if the judge is satisfied that it is unreasonable.

• Marginal note:Related person

  (6) For the purposes of subsection (5), a requirement to provide information or a record is not to be considered unreasonable because the information or record is under the control of, or available to, a non-resident person that is not controlled by the person on which the notice of the requirement under subsection (2) is served, or to which that notice is sent, if that person is related to the non-resident person.

• Marginal note:Time during consideration not to count

  (7) The period between the day on which an application for review of a requirement is made under subsection (4) and the day on which the review is decided is not to be counted in the computation of

  • (a) the period set out in the notice of the requirement; and

  • (b) the period within which an assessment may be made under section 70.

• Marginal note:Consequence of failure

  (8) If a person fails to comply substantially with a notice served or sent under subsection (2) and if the requirement is not set aside under subsection (5), any court having jurisdiction in a civil proceeding relating to the administration or enforcement of this Act must, on motion of the Minister, prohibit the introduction by that person (or by another constituent entity of a consolidated group of which the person is, at any time between the time the notice was served or sent under subsection (2) and the time the motion is heard, a constituent entity) of any foreign-based information or record covered by that notice.

Marginal note:Inquiry

• 105 (1) The Minister may, for any purpose related to the administration or enforcement of this Act, authorize any person, whether or not the person is an official of the Agency, to make any inquiry that the Minister may deem necessary with reference to anything relating to the administration or enforcement of this Act.

• Marginal note:Appointment of hearing officer

  (2) If the Minister, under subsection (1), authorizes a person to make an inquiry, the Minister must, without delay, apply to the Tax Court of Canada for an order appointing a hearing officer before whom the inquiry will be held.

• Marginal note:Powers of hearing officer

  (3) For the purposes of an inquiry authorized under subsection (1), a hearing officer appointed under subsection (2) in relation to the inquiry has all the powers conferred on a commissioner by sections 4 and 5 of the Inquiries Act and that may be conferred on a commissioner under section 11 of that Act.

• Marginal note:When powers to be exercised

  (4) A hearing officer appointed under subsection (2) in relation to an inquiry must exercise the powers conferred on a commissioner by section 4 of the Inquiries Act in relation to any persons that the person authorized to make the inquiry considers appropriate for the conduct of the inquiry. However, the hearing officer is not to exercise the power to punish any person unless, on application by the hearing officer, a judge, including a judge of a county court, certifies that the power may be exercised in the matter disclosed in the application and the hearing officer has given to the person in respect of whom the power is proposed to be exercised 24 hours notice of the hearing of the application, or any shorter notice that the judge considers reasonable.

• Marginal note:Rights of witnesses

  (5) Any person that gives evidence in an inquiry authorized under subsection (1) is entitled to be represented by counsel and, on request made by the person to the Minister, to receive a transcript of that evidence.

• Marginal note:Rights of person investigated

  (6) Any person whose affairs are investigated in the course of an inquiry authorized under subsection (1) is entitled to be present and to be represented by counsel throughout the inquiry unless the hearing officer appointed under subsection (2), on application by the Minister or a person giving evidence, orders otherwise in relation to all or any part of the inquiry on the ground that the presence of the person and the person’s counsel, or either of them, would be prejudicial to the effective conduct of the inquiry.

Marginal note:Copies

106 If any record is seized, inspected, audited, examined or provided under any of sections 66, 101 to 103 and 105, the person by whom it is seized, inspected, audited or examined or to whom it is provided or any official of the Agency may make or cause to be made one or more copies of it and, in the case of an electronic record, make or cause to be made a print-out of the electronic record, and any copy or print-out of the record purporting to be certified by the Minister or an authorized person to be a copy or print-out made under this section is evidence of the nature and content of the original record and has the same probative force as the original record would have if it were proven in the ordinary way.

Marginal note:Compliance

107 A person must, unless the person is unable to do so, do everything the person is required to do under any of sections 66, 101 to 104 and 106 and no person is to, physically or otherwise, do or attempt to do any of the following:

• (a) interfere with, hinder or molest any official doing anything the official is authorized to do under this Act; and

• (b) prevent any official from doing anything the official is authorized to do under this Act.

DIVISION OConfidentiality of Information

Marginal note:Definitions

• 108 (1) The following definitions apply in this section.

  authorized person

  authorized person means a person who is engaged or employed, or who was formerly engaged or employed, by or on behalf of His Majesty in right of Canada to assist in carrying out the provisions of this Act. (personne autorisée)

  confidential information

  confidential information means information of any kind and in any form that relates to one or more persons and that is

  • (a) obtained by or on behalf of the Minister for the purposes of this Act; or

  • (b) prepared from information referred to in paragraph (a).

  It does not include information that does not directly or indirectly reveal the identity of the person to whom it relates. (renseignement confidentiel)

  court of appeal

  court of appeal has the same meaning as in section 2 of the Criminal Code. (cour d’appel)

• Marginal note:Provision of confidential information

  (2) Except as authorized under this section, an official must not knowingly

  • (a) provide, or allow to be provided, to any person any confidential information;

  • (b) allow any person to have access to any confidential information; or

  • (c) use any confidential information other than in the course of the administration or enforcement of this Act.

• Marginal note:Confidential information evidence not compellable

  (3) Despite any other Act of Parliament or other law, no official is required, in connection with any legal proceedings, to give or produce evidence relating to any confidential information.

• Marginal note:Communications — proceedings

  (4) Subsections (2) and (3) do not apply in respect of

  • (a) criminal proceedings, by way of either indictment or summary conviction, that have been commenced by the laying of an information or the preferring of an indictment under an Act of Parliament;

  • (b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Employment Insurance Act or any other Act of Parliament or law of a province that provides for the payment of a tax or duty, before a court of record, including a court of record in a jurisdiction outside Canada; or

  • (c) any legal proceedings under an international agreement relating to trade before

    • (i) a court of record, including a court of record in a jurisdiction outside Canada,

    • (ii) an international organization, or

    • (iii) a dispute settlement panel or an appellate body created under an international agreement relating to trade.

• Marginal note:Authorized provision of confidential information

  (5) The Minister may provide appropriate persons with any confidential information that may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual.

• Marginal note:Disclosure of confidential information

  (6) An official may

  • (a) provide to a person any confidential information that may reasonably be regarded as necessary for the purpose of

    • (i) the administration or enforcement of this Act, solely for that purpose, or

    • (ii) determining any liability or obligation of the person or any refund or other payment to which the person is or may become entitled under this Act;

  • (b) provide, allow to be provided, or allow inspection of or access to any confidential information to or by

    • (i) any person, or any person within a class of persons, that the Minister may authorize, subject to any conditions that the Minister may specify, or

    • (ii) any person otherwise legally entitled to the information because of an Act of Parliament, solely for the purposes for which that person is entitled to the information;

  • (c) provide confidential information

    • (i) to an official of the Department of Finance solely for the purposes of the administration of a federal-provincial agreement made under the Federal-Provincial Fiscal Arrangements Act,

    • (ii) to an official solely for the purpose of the formulation, evaluation or implementation of a fiscal or trade policy or for the purposes of the administration or enforcement of any Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or an international agreement relating to trade,

    • (iii) to an official solely for the purposes of the negotiation or implementation of an international agreement relating to trade, a tax treaty or an agreement for the exchange of information for tax purposes,

    • (iv) to an official as to the name, address, occupation, size or type of business of a person, solely for the purposes of enabling that department or agency to obtain statistical data for research and analysis,

    • (v) to an official solely for the purposes of setting off, against any sum of money that may be payable by His Majesty in right of Canada, a debt due to

      • (A) His Majesty in right of Canada, or

      • (B) His Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province, or

    • (vi) to an official solely for the purposes of section 7.1 of the Federal-Provincial Fiscal Arrangements Act;

  • (d) provide confidential information to an official or any person employed by or representing the government of a foreign state, an international organization established by the governments of states, a community of states, or an institution of any such government or organization, in accordance with an international convention, agreement or other written arrangement relating to trade between the Government of Canada or an institution of the Government of Canada and the government of the foreign state, the organization, the community or the institution, solely for the purposes set out in that arrangement;

  • (e) provide confidential information, or allow the inspection of or access to confidential information, solely for the purposes of a provision contained in a listed international agreement or in a tax treaty (as those terms are defined in subsection 248(1) of the Income Tax Act);

  • (f) provide confidential information solely for the purposes of sections 23 to 25 of the Financial Administration Act;

  • (g) use confidential information to compile information in a form that does not directly or indirectly reveal the identity of the person to whom the information relates;

  • (h) use, or provide to any person, confidential information solely for a purpose relating to the supervision, evaluation or discipline of an authorized person by His Majesty in right of Canada in respect of a period during which the authorized person was employed by or engaged by or on behalf of His Majesty in right of Canada to assist in the administration or enforcement of this Act, to the extent that the information is relevant for that purpose;

  • (i) provide access to records of confidential information to the Librarian and Archivist of Canada or a person acting on behalf of or under the direction of the Librarian and Archivist, solely for the purposes of section 12 of the Library and Archives of Canada Act, and transfer such records to the care and control of such persons solely for the purposes of section 13 of that Act;

  • (j) use confidential information relating to a person to provide information to that person;

  • (k) provide confidential information to a police officer, as defined in subsection 462.48(17) of the Criminal Code, solely for the purpose of investigating whether an offence has been committed under the Criminal Code, or the laying of an information or the preferring of an indictment, if

    • (i) that information can reasonably be regarded as being relevant for the purpose of ascertaining the circumstances in which an offence under the Criminal Code may have been committed, or the identity of the person or persons who may have committed an offence, with respect to an official, or with respect to any person related to that official,

    • (ii) the official was or is engaged in the administration or enforcement of this Act, and

    • (iii) the offence can reasonably be considered to be related to that administration or enforcement; and

  • (l) provide information to a law enforcement officer of an appropriate police organization in the circumstances described in subsection 211(6.4) of the Excise Act, 2001.

• Marginal note:Measures to prevent unauthorized use or disclosure

  (7) The person presiding at a legal proceeding relating to the supervision, evaluation or discipline of an authorized person may order any measures that are necessary to ensure that confidential information is not used or provided to any person for any purpose not relating to that proceeding, including

  • (a) holding a hearing in camera;

  • (b) banning the publication of the information;

  • (c) concealing the identity of the person to whom the information relates; and

  • (d) sealing the records of the proceeding.

• Marginal note:Disclosure to person or on consent

  (8) An official may provide confidential information relating to a person

  • (a) to that person; and

  • (b) with the consent of that person, to any other person.

• Marginal note:Appeal from order or direction

  (9) An order or direction that is made in the course of or in connection with any legal proceedings and that requires an official to give or produce evidence relating to any confidential information may, by notice served on all interested parties, be appealed without delay by the Minister or by the person against whom the order or direction is made to

  • (a) the court of appeal of the province in which the order or direction is made, in the case of an order or direction made by a court or other tribunal established under the laws of the province, whether or not that court or tribunal is exercising a jurisdiction conferred by the laws of Canada; or

  • (b) the Federal Court of Appeal, in the case of an order or direction made by a court or other tribunal established under the laws of Canada.

• Marginal note:Disposition of appeal

  (10) The court to which an appeal is taken under subsection (9) may allow the appeal and quash the order or direction appealed from or dismiss the appeal, and the rules of practice and procedure from time to time governing appeals to the courts apply, with such modifications as the circumstances require, to an appeal instituted under that subsection.

• Marginal note:Stay

  (11) An appeal instituted under subsection (9) stays the operation of the order or direction appealed from until judgment is pronounced.