Case information

Access to information — Request for access to information — Relevant documents held by Alberta Health and shared with Health Canada — Applicant subject of one document — Applicant objected to release of document — Applicant seeking disclosure of seven categories of documents — Respondent refused — Whether Federal Court of Appeal erred in upholding decision not to compel production of certain records alleged to be relevant to issues on underlying applications under Access to Information Act, R.S.C. 1985, c. A-1, s. 44 — If so, whether principles of procedural fairness violated — Whether Federal Court of Appeal erred in upholding decision not to compel production of certain records alleged to be relevant to constitutional question alleged to be raised in underlying applications — Whether Federal Court of Appeal erred in failing to set out or apply test for relevance applicable in the context of a motion to compel disclosure of records in application under s. 44.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2017, Health Canada received a request under the Access to Information Act, R.S.C. 1985, c. A-1, for copies of documents held by Alberta Health and shared with Health Canada. Preventous Collaborative Health, one subject of the requested documents, was given notice of the request. Having heard Preventous’ objections, Health Canada advised that it would release a redacted version of the document. Preventous applied for judicial review of that decision under s. 44 of the Access to Information Act, saying, inter alia, that the audit report was not “under the control” of Health Canada within the meaning of s. 4 of the Access to Information Act because Health Canada did not obtain it legally. The Minister of Health served an affidavit providing evidence as to Health Canada’s response to the Access to Information Act request, including evidence as to how it came into possession of the document, with a copy of the correspondence from Alberta Health transmitting the audit report as an exhibit to the affidavit. During the cross-examination of the affiant, Preventous sought undertakings to produce seven categories of documents. The Minister of Health declined on the basis that the documents sought were not relevant and that Preventous was not entitled to undertakings during a cross-examination on an affidavit.

Eventually, the Federal Court of Appeal decided that Rule 317 did not apply to s. 44 applications: Canada (Health) v. Preventous Collaborative Health, 2022 FCA 153. It explained that the record on a s. 44 application can be developed using Rules 4 and 313, and the court’s plenary jurisdiction. It declined to rule on whether the material sought was relevant or timely. Preventous then brought an interlocutory motion under Rules 4 and 313 of the Federal Court Rules, SOR/98-106, and the court’s plenary jurisdiction to compel production of three categories of document. The case management judge dismissed the motion on the basis that it was not timely. Preventous’ appeal to the Federal Court was dismissed on the basis that the requested documents were not relevant. Preventous’ appeal to the Court of Appeal was dismissed.