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Access to Information Act (ATIA) - Reviews. Ash v. Canada (Minister of Health) [statutory AITA Fed Court reviews, contrasted with JR and appeals]
In Ash v. Canada (Minister of Health) (Fed CA, 2026) the Federal Court of Appeal considers the AITA s.41(1) Federal Court statutory 'review' provisions (which are not JRs nor appeals, see para 14-15), that for decisions of the Information Commissioner to AITA s.30(1)(a) "refused access to a record" complaints:[4] Mr. Ash’s application for review of the Information Commissioner’s final report pursuant to subsection 41(1) of the Act was dismissed by the Federal Court on May 20, 2025 (2025 FC 914, per Gleeson J.) It is this decision which forms the subject matter of the present appeal.
[5] The appellate standards of review apply: correctness for any question of law and palpable and overriding error for any question of fact or mixed fact and law from which a legal error cannot be extricated (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Health) v. Elanco Canada Limited, 2021 FCA 191 at paras. 32–33; Export Development Canada v. Canada (Information Commissioner), 2025 FCA 50 at paras. 31–32). As such, decisions on whether the requested documents were in fact under the control of a government institution are entitled to deference as questions of mixed fact and law, provided they are not premised on a wrong legal principle (Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 (National Defence) at para 23).
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[8] Recognizing that its authority under section 41 of the Act was limited to determining whether access to records responsive to Mr. Ash’s access request had been denied to him by Health Canada and, if so, to order the release of those records as was held in Blank .v Canada (Justice), 2016 FCA 189, the Federal Court concluded that with limited exceptions which do not apply in this case, it was not for the Federal Court to order and supervise Health Canada in how it conducted its review of its records or, as Mr. Ash was requesting that it do, to determine the scope of Health Canada’s mandate in order to assess what records the agency should maintain under its control when considering an access request under subsection 41(1) of the Act.
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[14] With respect to the question of whether relief in the nature of mandamus should have been issued, the Federal Court correctly noted that the underlying application for review was brought under subsection 41(1) of the Act while extraordinary remedies such as mandamus are only available in applications for judicial review made under section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 (FCA) (see subsection 18(3) of the FCA); the nature and scope of these two distinct proceedings should not be conflated. ....
[15] I also disagree with Mr. Ash’s proposition that the Federal Court erred in equating the review process under subsection 41(1) of the Act with an appeal to the Federal Court and improperly invoked section 18.5 of the FCA. Relying on the Court’s decision in Canadian National Railway Company v Scott, 2018 FCA 148 (Scott), the Federal Court determined in paragraph 37 of its decision that the term "“appeal”" in section 18.5 of the FCA "“is not limited to judicial appeals but extends to and includes any available and meaningful remedy allowing a decision to be challenged”" (Scott at para. 45). An application for review under section 41 of the Act is unquestionably a meaningful remedy and is one that allows for a full review by the Federal Court of the response to an access request. Thus, the Federal Court was correct in finding that section 18.5 of the FCA would bar an application for relief in the nature of mandamus.
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