Seeking a review by the Federal Court

Section 41 of the Access to Information Act provides a right to ask the Federal Court for a review after the Information Commissioner has completed her investigation into a complaint and a final report has been issued.

The subject matter of the review, timing to apply for the review, who is the responding party, and who must be served and given notice of the review, depends on who is making the application for review.

To request a review the applicant is generally required to do the following:

File an application with the Federal Court in compliance with the time periods set out under subsection 37(5) and section 41;
Name the respondent according to section 41; and
Follow the procedures for service and notice, as applicable, under section 43 and Rule 304 of the Federal Court Rules.

Institutions have an obligation to give notice to the Information Commissioner when they are served with an application under section 41 unless the Information Commissioner has already been served.

Complainants

The person who made a complaint under paragraphs 30(1)(a) to (e) and received the Information Commissioner’s final report can apply for a review of any matter that is the subject of the complaint (subsection 41(1));

A complainant must apply for a review within 35 business days after the date of the Information Commissioner’s final report (subsections 41(1), and 41(6));
Only the head of the institution can be named as the respondent (subsection 41(5));
A copy of the application for review must be served on the institution (subsection 43(1)) and the Information Commissioner (Rule 304(1)(c) of the Federal Court Rules).

Matters that are not the subject of the complaint are not reviewable under subsection 41(1). Complainants are encouraged to ensure that their applications are about matters that are the subject of the complaint(for example delay in responding to an access request, a failure to provide all records responsive to an access request, or the claiming of exemptions and exclusions to withhold records responsive to an access request).

Institutions

The institution that received the Information Commissioner’s final report can apply for a review of any matter that is the subject of an order set out in that report (subsection 41(2)).

The institution must apply for a review within 35 business days after the date of the Information Commissioner’s final report (subsections 41(1), and 41(6));
Only the Information Commissioner can be named as the respondent (subsection 41(5));
A copy of the application for review must be served on the Information Commissioner and on all parties who received a copy of the final report (subsection 43(2)).

Third parties

A third party that received the Information Commissioner’s final report can apply for a review of the application of any exemptions under the Act that may apply to a record that might contain third-party information and that is the subject of the complaint (subsection 41(3)).

A third party can apply for a review only if the complainant and the institution have not applied for a review;
If the complainant and the institution do not apply for a review within 35 business days after the date of the Information Commissioner’s final report, the third party must apply for a review within the next 10 business days(subsections 41(3) and 41(6));
Only the head of the institution can be named as the respondent (subsection 41(5));
A copy of the application for review must be served on the institution (subsection 43(1)) and the Information Commissioner (Rule 304(1)(c) of the Federal Court Rules).

Privacy Commissioner

When the Privacy Commissioner receives the Information Commissioner’s final report, he or she can apply for a review of any matter relating to the disclosure of a record that may contain personal information and that is the subject of the complaint (subsection 41(4)).

The Privacy Commissioner can apply for a review only if the complainant and the institution have not applied for a review;
If the complainant and the institution do not apply for a review within 35 business days after the date of the Information Commissioner’s final report, the Privacy Commissioner must apply for a review within the next 10 business days(subsections 41(4) and 41(6));
Only the head of the institution can be named as the respondent (subsection 41(5));
A copy of the application for review must be served on the institution (subsection 43(1)) and the Information Commissioner (Rule 304(1)(c) of the Federal Court Rules).

If no person applies for a review by the Federal Court within the time periods specified for doing so, any order issued by the Information Commissioner set out in the final report takes effect in accordance with subsection 36.1(4).

For more information on applying for a review, consult the Federal Court’s website or contact the Court’s Registry Office by phone at 1-800-663-2096.