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Access to Information Act (ATIA) - Control. Ash v. Canada (Minister of Health)
In Ash v. Canada (Minister of Health) (Fed CA, 2026) the Federal Court of Appeal considers a federal AITA 'control' and 'institutional search' issue:[6] Before the Federal Court, Mr. Ash did not dispute that Health Canada undertook a reasonable search of its records and disclosed to him the records responsive to his request that were under its control. Rather, Mr. Ash argued that Health Canada’s mandate of monitoring vaccine safety and safeguarding public health imposed upon the government institution a legal duty to maintain under its control all the records responsive to his access request, including those purportedly under the control of the PHAC. As such, according to Mr. Ash, Health Canada’s duties of disclosure included obtaining and disclosing to him records from other institutions that he believes Health Canada should possess. Accordingly, Mr. Ash sought relief in the nature of mandamus to compel Health Canada to obtain the missing records from the PHAC and to thereafter release the documents to him in response to his existing access request.
[7] I should mention that Mr. Ash also sought a declaration to the effect that government institutions, when responding to access requests, are required to obtain documents that under law should be under their control. Although the Federal Court refused to grant the declaratory relief which he sought, Mr. Ash does not challenge that part of the judgment below in the present appeal.
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[9] The Federal Court noted the evidence of Health Canada to the effect that it had entered into a shared services agreement with the PHAC that covered many internal services, including the provision of services under the Act, but that the processing and treatment of access requests submitted to Health Canada and the PHAC nonetheless remained separate and independent. In other words, access requests received by those government institutions within the Health Portfolio are limited to a review of records under the control of the specific government institution.
[10] Before us on appeal, Mr. Ash adds a new wrinkle to his argument: he cites National Defence in support of the proposition that one must give the term "“control”" a broad and liberal meaning in order to create a meaningful right of access to government information, and that because Health Canada and the PHAC share responsibility of monitoring the safety of vaccines in Canada, Health Canada has de facto control over the records which the Federal Court determined to be under the control of the PHAC for the purposes of the application of subsection 4(1) of the Act.
[11] Justice Gleeson of the Federal Court concluded that the records which Mr. Ash was seeking were not under the control of Health Canada, a conclusion that was open to him on the record and thus entitled to deference. I cannot fault the Federal Court for not having addressed the concept of de facto control now being argued before us on appeal. In any event, I cannot agree with Mr. Ash on this issue. There is unequivocal affidavit evidence from Health Canada that the agency does not have access to the adverse effects following immunization reports submitted to the PHAC and that the PHAC does not share the reports it receives with Health Canada. On the other hand, Mr. Ash could only point to a chart on a Government of Canada website which, at best, only suggests that there is information sharing between Health Canada and the PHAC. The Attorney General of Canada (AGC) does not dispute that the two institutions share information but argues that there is a significant difference between the sharing of information and a finding that Health Canada has de facto control over the immunization reports held by the PHAC for the purposes of responding to an access request. I would agree with the AGC; Mr. Ash has not pointed to any evidence that Health Canada "“has some power of direction or command over”" the records which he seeks (National Defence at para 48). He thus has not met his burden of establishing that Health Canada had the necessary level of control to require it to disclose records that are under the control of the PHAC which he now seeks.
[12] Moreover, unlike the situation in National Defence, there seems little risk here that another government institution such as the PHAC could be turned "“into a ‛black hole’ to shelter sensitive records that should otherwise be produced to the requester in accordance with the law.”" (National Defence at para 52). There was no intention to shield from Mr. Ash the reports found by the Federal Court to be under the control of the PHAC, as Health Canada itself suggested that he proceed with making a separate access request to obtain them. Mr. Ash refused to do so for his own reasons.
[13] Having considered the arguments of Mr. Ash, and as stated, I am not convinced of any reviewable error on the part of the Federal Court on the issue of de facto control. I agree with the Federal Court that Health Canada and the PHAC are distinct government institutions whose officials have separately been delegated authority under the Act. In any event, I cannot see how the National Defence case is of assistance to Mr. Ash. I agree that the notion of "“control”" must be given a broad and liberal meaning, however the documents in question in National Defence were purportedly in a ministerial office and not, as is the case here, under the control of a separate government institution under Schedule I of the Act. Although it shares with Health Canada the monitoring of the safety of vaccines as part of Canada’s Health Portfolio, the PHAC undertakes its statutory duties under a different ministerial mandate and a distinct surveillance program. In line with the Court’s conclusions in Yeager v Canada (Public Safety and Emergency Preparedness), 2019 FCA 98 at paragraph 15, institutions separately enumerated in Schedule I of the Act cannot be treated as one amalgamated government institution for access to information purposes just because they are placed under the same minister as part of a portfolio. I therefore cannot agree with Mr. Ash that Health Canada somehow retained de facto control over the records that may be held by another government institution—albeit under the same portfolio—for the purposes of subsection 41(1) of the Act.
[14] .... There is no reviewable error in the Federal Court's reasoning on this issue. In any event, Mr. Ash has not convinced me that Health Canada was under a public legal duty to seek the documents from the PHAC, a prerequisite to the extraordinary remedy of mandamus (Apotex Inc v. Canada (Attorney General), 1993 CanLII 3004 (FCA), [1994] 1 FC 742 (FCA) at 744 and 766, aff’d 1994 CanLII 47 (SCC), [1994] 3 SCR 1100).
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