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Access to Information Act (R.S.C., 1985, c. A-1)

Act current to 2022-09-22 and last amended on 2022-09-01. Previous Versions

PART 1Access to Government Records (continued)

Review by the Federal Court (continued)

Marginal note:Operation of order stayed

  •  (1) Subject to subsection (2), the making of an application under section 41 operates as a stay of any order set out in a report received under subsection 37(2) by the person who made the application until the proceedings are finally concluded.

  • Marginal note:Part of order operative

    (2) If all of the persons who received the report agree in writing, any part of the order that relates to a matter that is not the subject of the proceedings becomes operative.

Marginal note:Parties to review

  •  (1) If a person who receives a report under subsection 37(2) applies to the Court for a review under section 41, any other person who received the report under that subsection has the right to appear as a party to the review.

  • Marginal note:Scope of proceedings

    (2) If a complainant, a third party or the Privacy Commissioner files notice of their intention to appear as a party to a review with the Court within 10 business days after the expiry of the period referred to in subsection 41(1), they may raise for determination by the Court any matter in respect of which they may make an application under section 41.

  • Marginal note:Burden of proof – party

    (3) If a third party or the Privacy Commissioner raises a matter for determination by the court under subsection (2), the burden of establishing that the disclosure of a record requested under this Part or a part of such a record is not authorized is on the person who raises the matter.

Marginal note:Information Commissioner may appear

 The Information Commissioner may

  • (a) appear before the Court on behalf of a complainant; or

  • (b) appear as a party to any review applied for under section 41 or, with leave of the Court, as a party to any review applied for under section 44.

Marginal note:Service on head of government institution

  •  (1) If a complainant, a third party or the Privacy Commissioner makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the head of the government institution who received the report under subsection 37(2).

  • Marginal note:Service or notice

    (2) If the head of a government institution makes an application for a review under section 41, he or she shall immediately serve a copy of the originating document on the persons who are entitled to be provided a report under subsection 37(2) and on the Information Commissioner. However, if the head of the institution is served with a copy of an originating document under subsection (1), he or she shall, as soon as possible after being served, give written notice of the application to those persons and to the Information Commissioner, unless any of those persons or the Commissioner has already been served with a copy of the document.

Marginal note:Third party may apply for review

  •  (1) Any third party to whom the head of a government institution is required under paragraph 28(1)(b) to give notice of a decision to disclose a record or a part of a record under this Part may, within 20 days after the notice is given, apply to the Court for a review of the matter.

  • Marginal note:Notice to person who requested record

    (2) The head of a government institution who has given notice under paragraph 28(1)(b) that a record requested under this Part or a part of such a record will be disclosed shall, on being given notice of an application made under subsection (1) in respect of the disclosure, give written notice of the application to the person who requested access to the record.

  • Marginal note:Person who requested access may appear as party

    (3) Any person who has been given notice of an application for a review under subsection (2) may appear as a party to the review.

Marginal note:De novo review

 For greater certainty, an application under section 41 or 44 is to be heard and determined as a new proceeding.

Marginal note:Hearing in summary way

 An application made under section 41 or 44 is to be heard and determined in a summary way in accordance with any special rules made in respect of such applications under section 46 of the Federal Courts Act.

Marginal note:Access to records

 Despite any other Act of Parliament, any privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries and litigation privilege, the Court may, in the course of any proceedings before it arising from an application under section 41 or 44, examine any record to which this Part applies that is under the control of a government institution, and no such record may be withheld from the Court on any grounds.

Marginal note:Court to take precautions against disclosing

  •  (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of

    • (a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or

    • (b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists.

  • Marginal note:Disclosure of offence authorized

    (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against a law of Canada or a province by a director, an officer or an employee of a government institution if, in the Court’s opinion, there is evidence of such an offence.

Marginal note:Burden of proof — subsection 41(1) or (2)

  •  (1) In any proceedings before the Court arising from an application under subsection 41(1) or (2), the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Part or a part of such a record or to make the decision or take the action that is the subject of the proceedings is on the government institution concerned.

  • Marginal note:Burden of proof — subsection 41(3) or (4)

    (2) In any proceedings before the Court arising from an application under subsection 41(3) or (4), the burden of establishing that the head of a government institution is not authorized to disclose a record that is described in that subsection and requested under this Part or a part of such a record is on the person who made that application.

Marginal note:Order of Court where no authorization to refuse disclosure found

 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof on the basis of a provision of this Part not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.

Marginal note:Order of Court where reasonable grounds of injury not found

 Where the head of a government institution refuses to disclose a record requested under this Part or a part thereof on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.

Marginal note:Order of Court if authorization to refuse disclosure found

 The Court shall, if it determines that the head of a government institution is authorized to refuse to disclose a record or a part of a record on the basis of a provision of this Part not referred to in section 50 or that the head of the institution has reasonable grounds on which to refuse to disclose a record or a part of a record on the basis of section 14 or 15 or paragraph 16(1)(c) or (d) or 18(d), make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to the matter that is the subject of the proceedings, or shall make any other order that it considers appropriate.

Marginal note:Order of Court — other decisions or actions

 If the subject matter of the proceedings before the Court is the decision or action of the head of a government institution, other than a decision or action referred to in any of sections 49 to 50.1, the Court shall,

  • (a) if it determines that the head of the institution is not authorized to make that decision or to take that action, make an order declaring that the head of the institution is required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate; or

  • (b) if it determines that the head of the institution is authorized to make that decision or to take that action, make an order declaring that the head of the institution is not required to comply with the provisions of the Information Commissioner’s order that relate to that matter, or make any other order that it considers appropriate.

Marginal note:Incompatible provisions

 An order of the Court made under any of sections 49 to 50.2 has the effect of rescinding the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are incompatible with the Court’s order.

Marginal note:Court to specify rescinded provisions

 The Court must specify in any order that it makes under any of sections 49 to 50.2 the provisions of the Information Commissioner’s order relating to any matter that is the subject of the proceedings that are rescinded under section 50.3.

Marginal note:Order of Court not to disclose record

 Where the Court determines, after considering an application under section 44, that the head of a government institution is required to refuse to disclose a record or part of a record, the Court shall order the head of the institution not to disclose the record or part thereof or shall make such other order as the Court deems appropriate.

  • 1980-81-82-83, c. 111, Sch. I “51”

Marginal note:Applications relating to international affairs or defence

  •  (1) An application under section 41 relating to a record or a part of a record that the head of a government institution has refused to disclose by reason of paragraph 13(1)(a) or (b) or section 15 shall be heard and determined by the Chief Justice of the Federal Court or by any other judge of that Court that the Chief Justice may designate to hear those applications.

  • Marginal note:Special rules for hearings

    (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall

    • (a) be heard in camera; and

    • (b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.

  • Marginal note:Ex parte representations

    (3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte.

Marginal note:Costs

  •  (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Part shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.

  • Marginal note:Costs — important new principle

    (2) If the Court is of the opinion that an application for review under section 41 has raised an important new principle in relation to this Part, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.

 
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