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Federal Court of Appeal Upholds Ebay Power Seller Decision

By Michael Geist

The Federal Court of Appeal has upheld an earlier decision ordering eBay to provide information on Canadian power sellers.  The Globe and Mail reports that the Canadian Revenue Agency plans to escalate its investigation in light of the decision.  A key part of the case turns on the fact that the requested information is located on servers outside the country.  This leads the court to discuss concerns associated with Internet jurisdiction and cloud computing, with it arriving at the view that for the purposes of the Income Tax Act, the availability of electronic documents on computer servers located anywhere in the world can be treated as located in Canada.  It notes that:

"it makes no sense in my view to insist that information stored on servers outside Canada is as a matter of law located outside Canada for the purpose of section 231.6 because it has not been downloaded. Who, after all, goes to the site of servers in order to read the information stored on them?"

While this conclusion may be limited to the specific Income Tax Act provision, the concept that the mere accessibility to an electronic document (wherever located) can be treated as being located in Canada could have enormous implications for many other areas of the law if there were attempts to extend the analysis.

Full post as published by Michael Geist on November 14, 2008 (boomark / email).