Friedman v. Canada (National Revenue) (May 26, 2021 – 2021 FCA 101, Nadon, Pelletier (Author), Locke JJ.A.).
Précis: Mr. and Mrs. Friedman received requests for information which they did not provide to CRA. CRA then moved in the Federal Court for a compliance order under subsection 231.7(1) which was granted. The Friedmans argued in the Federal Court that the compliance order should not be granted on two bases:
 The Friedmans initially challenged the request for information on the basis that the procedure under subsection 231.1(1) infringed their right to liberty, and their protection against self-incrimination pursuant to sections 7, 11(c), and 13 of the Canadian Charter of Rights and Freedoms (the Charter). Subsequently, they applied for and were granted leave to plead that the Federal Court should follow another Federal Court decision on the same issue, Canada (National Revenue) v. Lin, 2019 FC 646 [Lin], in which the Federal Court dismissed an application for a compliance order pursuant to subsection 232.7(1). In that case, the Court found that “the Letters are addressed to both the individuals and their connected entities. The entities are not specified, and it is not clear who is being audited - the individual Respondents or unnamed entities”: Lin at para. 31.
Their arguments were unsuccessful in the Federal Court and they appealed to the Federal Court of Appeal.
Pelletier J.A. writing for the Court rejected the argument based on a failure to follow the Lin decision because the Judge had correctly distinguished the Lin case. He also rejected the self-incrimination arguments at this stage of proceedings based in part on the Jarvis decision and in part on the absence of a sufficient factual record. Thus the appeal was dismissed with costs. While the Minister asked for additional costs based on the Friedmans having abandoned some of their constitutional arguments at the last minute Pelletier J.A. found that the mischief involved was not such as to merit an increased costs award.
Decision: Pelletier J.A. rejected that argument that the Federal Court should have followed the Lin decision and refused to make a compliance order, holding that the reasons for declining to follow Lin were properly explained in the decision under appeal:
 This does not mean that judges are free to disregard the decisions of their colleagues. Judicial comity is a doctrine which seeks to promote uniformity and predictability in the law. Litigants and appellate courts expect that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why. One way of doing this is to distinguish the facts of the two cases or to identify relevant legal principles which were not addressed.
 But the failure to do so, or to do it convincingly, while regrettable, is not a basis for appellate intervention. As a result, the use of the expression “horizontal stare decisis” to refer to judicial comity is misleading precisely because judicial comity is not enforced by courts of appeal while stare decisis is.
 As a result, the Federal Court committed no legal error when it declined to follow the Lin case. It examined the letters and the questionnaire which the Friedmans received from the CRA and concluded that it was clear who was being audited. The Federal Court came to its own conclusion that the necessary criteria had been satisfied by reference to the documents themselves. This is what it was required to do and it committed no error in doing so.
The self-incrimination arguments were not supported by an adequate record and were accordingly premature:
 The limitations which the Court imposed on the Minister’s use of her audit powers once the taxpayer and the Minister were in an adversarial relationship were based on sections 7 and 8 of the Charter. While Jarvis does not deal explicitly with section 13 of the Charter, the case is nonetheless instructive because the Supreme Court found that the principle against self-incrimination found residual expression under section 7 of the Charter as an element of fundamental justice: Jarvis at para. 67. To that extent, the procedures described above can be seen as being in accordance with the principle against self-incrimination.
 This does not preclude the Friedmans from raising the constitutional invalidity or inoperability of these provisions should the need arise in subsequent proceedings. But at this stage, and on this record, the absence of a factual record and, to a limited extent the decision in Jarvis, militate against any interference with the orders made by the Federal Court.
Thus the appeal was dismissed with costs. While the Minister asked for additional costs based on the Friedmans having abandoned some of their constitutional arguments at the last minute Pelletier J.A. found that the mischief involved was not such as to merit an increased costs award.