Preventous’ fishing expedition (v Canada): Hook, line, and sinker-but no catch
The Federal Court dismissed a Federal Courts Rule 51 appeal by Preventous Collaborative Health, which sought the production of documents from Health Canada under Rules 4, 313, and the Court’s plenary jurisdiction to control its own process. The documents sought included communications between Health Canada, the Alberta Ministry of Health, and the Canada Health Act Division of the Strategic Policy Branch that related to Health Canada’s decision to disclose audit reports of Preventous and two other private health clinics in response to a request under the Access to Information Act. The Federal Court of Appeal upheld the Rule 51 appeal (see 2023 FCA 249), but the underlying Federal Court decision was released only recently.
See our post on the Court of Appeal decision and the history of Preventous’ attempts to obtain disclosure from Health Canada here.
In the decision under appeal, Associate Justice Coughlan dismissed Preventous’ motion because it had not been brought by Preventous in a timely manner, emphasizing the summary nature of proceedings under section 44.1 of the Access to Information Act. The Court was also not satisfied that the application record was deficient and that the requested documents were relevant.
Preventous argued that (1) the Case Management Judge erred both in identifying and applying the test for determining whether the requested documents are relevant, (2) Preventous should be allowed to introduce fresh evidence on the Rule 51 appeal to address the timeliness issue, and (3) the Case Management Judge erred in dismissing the motion based on timeliness.
Justice Aylen found that the issues determine relevance by their definition in the Notice of Application, and the onus lies on Preventous to demonstrate the relevance of the requested documents. In its Notice of Motion, Preventous asserted that (a) the release of the Audit Report would be a breach of section 20 of the Access to Information Act and (b) the Audit Report is not “under the control” of Health Canada within the meaning of section 4 of the Act because Health Canada did not legally obtain the Audit Report.
The Court held that Preventous had failed to meet the evidentiary burden needed to prove the requested documents’ relevance before the Case Management Judge. Although the Case Management Judge’s reasons did not detail the test she applied to assess the issue of relevance, the Court saw no error in her conclusion that the application record was not deficient (the threshold requirement under Rule 313).
The Court also noted the overbreadth of the request and that Preventous was engaged in an improper fishing expedition. Preventous bore the burden of demonstrating the relevance of the requested documents to the specific grounds advanced on this application, which it had not done.
Preventous also argued under Rule 351 that they had established exceptional circumstances, enabling them to file fresh evidence on appeal to address the timeliness of the underlying motion. Justice Aylen found one affidavit unnecessary but admitted the other because the affiant’s testimony provided a reasonable explanation for the delay, which the Court considered relevant and potentially impactful to the Case Management Judge’s original decision on timeliness.
Finally, the Court acknowledged that Case Management Judges can dismiss motions for delay under Rule 385(1)(a). However, the Court noted that the Case Management Judge based her decision on timeliness without allowing the parties to make submissions on this issue. A lack of procedural fairness was recognized, but it ultimately did not affect the overall outcome because the Court had found the requested documents not relevant.
While the Court granted Preventous leave to rely on one fresh affidavit for their Rule 51 appeal, it ultimately dismissed the appeal and found the requested documents were not relevant.
This decision was upheld on appeal in 2023 FCA 249. The full decision can be read here.