Federal Court of Appeal Upholds Decision on Access to Information Act Request

Date: 20260211 Docket: A-230-25 Citation: 2026 FCA 28 CORAM: [NAME]. GLEASON J.A. [NAME]. BETWEEN: [NAME] Appellant and CANADA ([NAME]) Respondent Heard at Toronto, Ontario , on February 3, 2026 . Judgment delivered at Ottawa, Ontario , on February 11, 2026.

REASONS FOR

JUDGMENT BY: [NAME]. CONCURRED IN BY: [NAME]. GLEASON J.A. Date: 20260211 Docket: A-230-25 Citation: 2026 FCA 28 CORAM: [NAME]. GLEASON J.A. [NAME]. BETWEEN: [NAME] Appellant and CANADA ([NAME]) Respondent

REASONS FOR

JUDGMENT [NAME]. [ 1 ] In April 2023, the appellant, [NAME], made a request to [NAME] under the Access to Information Act , R.S.C. 1985, c. A-1 (Act) for all individual reports of death associated with COVID-19 vaccinations. Following a reasonable search of its records, [NAME] disclosed 236 reports responsive to [NAME]’s request. However, [NAME] went one step further; it advised [NAME] that the Public Health Agency of Canada (PHAC), a separate government institution under Schedule I of the Act, would likely possess additional records responsive to his request and suggested he make a separate access request to that agency. [ 2 ] [NAME] readily admits that he could have filed a separate access request with the PHAC, he did not do so. Rather, [NAME] filed a complaint with the Office of the Information Commissioner, claiming that [NAME] did not conduct a reasonable search in response to his request, thereby refusing access to requested records in breach of paragraph 30(1)(a) of the Act. [NAME] based his complaint on publicly available information which suggested that the Federal Government was in receipt of 427 individual reports of death possibly linked to the COVID-19 vaccines. [ 3 ] In March 2024, the Information Commissioner issued her final report in which she concluded that [NAME]’s complaint was not well founded. In short, the Information Commissioner was satisfied that [NAME] had conducted a reasonable search of the records under its control and that those responsive to [NAME]’s access request were provided to him. The Information Commissioner also found that [NAME] had demonstrated that the additional records sought by [NAME] were in fact under the control of the PHAC and that [NAME] satisfactorily explained why it did not have control of them. [ 4 ] [NAME]’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 ( [NAME] v. [NAME] , 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Health) v. [COMPANY] , 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). [ 6 ] Before the Federal Court, [NAME] did not dispute that [NAME] undertook a reasonable search of its records and disclosed to him the records responsive to his request that were under its control. Rather, [NAME] argued that [NAME]’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 [NAME]’s duties of disclosure included obtaining and disclosing to him records from other institutions that he believes [NAME] should possess.

Accordingly, [NAME] sought relief in the nature of mandamus to compel [NAME] 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 [NAME] 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, [NAME] does not challenge that part of the judgment below in the present appeal. [ 8 ] Recognizing that its authority under section 41 of the Act was limited to determining whether access to records responsive to [NAME]’s access request had been denied to him by [NAME] 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 [NAME] in how it conducted its review of its records or, as [NAME] was requesting that it do, to determine the scope of [NAME]’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. [ 9 ] The Federal Court noted the evidence of [NAME] 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 [NAME] 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, [NAME] 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 [NAME] and the PHAC share responsibility of monitoring the safety of vaccines in Canada, [NAME] 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 [NAME] was seeking were not under the control of [NAME], 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 [NAME] on this issue. There is unequivocal affidavit evidence from [NAME] 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 [NAME]. On the other hand, [NAME] could only point to a chart on a Government of Canada website which, at best, only suggests that there is information sharing between [NAME] 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 [NAME] 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; [NAME] has not pointed to any evidence that [NAME] “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 [NAME] 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 [NAME] the reports found by the Federal Court to be under the control of the PHAC, as [NAME] itself suggested that he proceed with making a separate access request to obtain them. [NAME] refused to do so for his own reasons. [ 13 ] Having considered the arguments of [NAME], 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 [NAME] 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 [NAME]. 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 [NAME] 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 [NAME] 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 [NAME] that [NAME] 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 ] 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. There is no reviewable error in the Federal Court's reasoning on this issue. In any event, [NAME] has not convinced me that [NAME] was under a public legal duty to seek the documents from the PHAC, a prerequisite to the extraordinary remedy of mandamus ( [COMPANY] 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). [ 15 ] I also disagree with [NAME]’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 [COMPANY] v [NAME] , 2018 FCA 148 ( [NAME] ), 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” ( [NAME] 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 . [ 16 ] Moreover, [NAME]’s request for relief in the nature of mandamus undermines his argument of de facto control by [NAME] over the records he seeks. [NAME] made out a case for de facto control, which he did not, it seems to me that he would not have required such relief for the Court to order the disclosure of the records. [ 17 ] Finally, [NAME] challenges the Federal Court’s refusal to consider as part of the record approximately 450 pages of additional documents which, as confirmed by both parties, was served upon the AGC and filed one hour prior to the hearing of the matter below, in support of his argument regarding the mandate of [NAME]. In coming to its decision, the Federal Court determined that the late filing was not supported by an affidavit addressing the relevance of the material, would be unfair to the AGC and would undermine the Court’s ability to perform its role. The Federal Court also found that the documents were of limited relevance, particularly because the issue of [NAME]’s mandate was not properly before the Federal Court on the underlying application. I find no reason to interfere with the Federal Court’s exercise of discretion on this issue. [ 18 ] For the reasons provided, I would dismiss the appeal. As no costs are sought by the AGC, none should be awarded. "[NAME]" J.A. “I agree. Wyman W. [NAME].” “I agree. Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-230-25 STYLE OF CAUSE: [NAME] v. CANADA ([NAME]) PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 3, 2026

REASONS FOR

JUDGMENT BY: [NAME]. CONCURRED IN BY: [NAME]. GLEASON J.A. DATED: FEBRUARY 11, 2026 APPEARANCES : [NAME] For The Appellant (On his own behalf) [NAME] For The Respondent SOLICITORS OF RECORD : [NAME] of Canada For The Respondent