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Preventous et al. still unsuccessful in accessing information to support their judicial review

The Federal Court of Appeal continues to decline the efforts of three private health clinics to obtain information from Health Canada to support their application under to section 44 of the Access to Information Act. Most recently, the Court has dismissed an appeal of a Rule 313 motion, after dismissing an appeal of a Rule 318 motion a few months earlier.

In the Federal Court, Preventous Collaborative Health, Provital Health, and Copeman Healthcare Centre seek judicial review of Health Canada’s decision to disclose portions of an audit report that Health Canada obtained from Alberta Health. Preventous submits that the audit report should not be disclosed because it is not a document “under the control of” Health Canada within the contemplation of section 4 of the Access to Information Act.

Preventous first filed a request for disclosure from Health Canada under Rule 317, which allows an applicant in a judicial review to request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application. Health Canada objected to the disclosure on the ground that the proceeding was not a judicial review of the Minister under section 18.1 of the Federal Courts Act.

The Case Management Judge upheld the objection. The Federal Court reversed the Case Management Judge (see 2021 FC 253), but the Federal Court of Appeal reversed again, finding that Rule 317 does not apply to an application under section 44 of the Access to Information Act, which is a “fresh review” of an access to information matter (see 2022 FCA 153).

Notably, the Federal Court of Appeal signalled that the Federal Court “may order the production of evidence necessary to allow the application to be meaningfully heard and determined”, finding the authority to do so under Rule 313 and the Court’s general supervisory power in administrative matters.

Preventous then brought a motion pursuant to Rule 313 and the Court’s plenary jurisdiction to compel production of the following documents from Health Canada:

  1. Any inquiries made by Health Canada to the Alberta Ministry of Health regarding private health care clinics in Alberta;
  2. Any communications or records of communications between the Minister of Health, Alberta Health and [Canada Health Act Division] discussing or relating to the Audit Report; and
  3. Any communications or records of communications between the Minister of Health, Alberta Health and [Canada Health Act Division] relating to private health care clinics in Alberta.

The Case Management Judge dismissed the motion, and the Federal Court dismissed an appeal. The Court found Preventous had not made an attempt to demonstrate how the requested records were relevant to its very specific argument that Health Canada is allegedly in unlawful possession of the audit report. The Court also found the request overbroad and to be an improper fishing expedition.

The Federal Court of Appeal again dismissed a further appeal by Preventous. The Court of Appeal noted the comment about overbreadth was not material to the Federal Court’s ultimate conclusion that the requested documents had not been shown to be relevant.

A copy of the Federal Court of Appeal decision can be found here. See our previous blog post discussing the ongoing judicial reviews against Health Canada under the Access to Information Act here.