Canada: A Three-Year Extension To Respond To An Access Request: Unreviewable By The Federal Court?

Last Updated: May 27 2014
Article by Yannick Landry

A recent Federal Court decision regarding the Access to Information Act (the "Act") addresses the question whether the courts have jurisdiction in assessing timely responses to a records request. This bulletin outlines the decision and gives a brief overview of access request time limits and when extensions are allowed under the Act.

When Are Extensions Allowed Under the Act?

The federal Act provides a quasi-constitutional right of access to records under the control of a government institution. This right of access is subject to limited and specific exceptions.

The Act envisions that, in general, access requests are to be responded to within 30 days. However, the Act does set out specific circumstances that permit a government institution to claim a time extension. In most instances, time extensions must be claimed within 30 days of receiving a request. In addition, the Act's provisions specify that the time limit may be extended for a reasonable period of time, with regards to the circumstances, if the request concerns, inter alia:

  • a large number of records; or
  • necessitates a search through a large number of records, and meeting the original time limit would unreasonably interfere with the operations of the government institution, or
  • consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit.

Lengthy Extension Leads to Judicial Review

The Federal Court's decision in The Information Commissioner of Canada v The Minister of National Defence looked at its jurisdiction to review a time extension taken by the Department of National Defence (the "Department") to provide responsive records pursuant to a request for information under the Act. In this case, the Department claimed an extension of more than three years to respond, based on the need for consultations and the magnitude of the records.

The requester had complained to the Information Commissioner about this lengthy extension. Upon receiving a complaint, the Commissioner is required to conduct an investigation. It concluded that the Department's time extension was wholly unreasonable, and therefore invalid. As such, the Commissioner concluded that the Department had failed to abide by the time limits set out in the Act and was deemed to have refused access to the requested records.

With the complainant's consent, the Information Commissioner then initiated a judicial review proceeding of the Department's access refusal under section 42 of the Act. This provision allows the Commissioner, (with the complainant's consent) to initiate a judicial review of the head of a government institution's decision to refuse access under the Act to requested records, within a specific period of time following the completion of the Commissioner's investigation. In the course of the proceeding, the Commissioner sought a declaration from the Federal Court that the Department was deemed to have refused access to the records responsive to the request. The Commissioner also sought an order requiring the responsive records be disclosed within a specified period of time.

Less than a month prior to the hearing of this application, and well before the lengthy extension of time had lapsed, the Department responded to the access request. It then brought a motion asking that the Court strike the application for judicial review on the basis that it had been rendered moot (i.e. no live controversy continued to exist between the parties).

Applying the test laid out by the Supreme Court of Canada in Borowski v Canada (Attorney General), Justice Kane decided to exercise her discretion to hear the application. At paragraph 47 of her decision, Justice Kane stated that:

"one part of the application is clearly moot since the records were now provided. However, other issues remained live, particularly whether a claimed extension of time can be found to be unreasonable and therefore, invalid, leading to a deemed refusal which can then be judicially reviewed."

The Information Commissioner raised two principle issues in its application for judicial review:

1. Did the Department fail to meet the requirements for extending the time to respond to the request pursuant to paragraphs 9(1)(a) and 9(1)(b) of the Act; and

2. If so, did the Department fail to give access to records requested under the Act (in accordance with its duty to assist requesters and within the time limits set out in the Act) and is thereby deemed to have refused access to them.

Judge Rules Time Extension Must Expire Before Court Has Jurisdiction

After an overview of the Access to Information regime, Justice Kane concluded the statutory language was clear on the limited jurisdiction of the Federal Court. She found that it is not the Court's responsibility to second guess whether an extension claim under subsection 9(1) is reasonable. In Justice Kane's opinion, the language of the Act clearly limits the Court's jurisdiction to the review of refusal, whether actual or deemed, and leaves no room for the review of extensions. Therefore, it cannot be deemed refusal until the expiration of the extended time limit.

Justice Kane considered but rejected the Information Commissioner's argument and found that there can be no refusal and therefore no review pursuant to section 41 or 42 of the Act until the deadline for processing a request has expired. It follows that the Information Commissioner or the requester cannot file an application for judicial review pursuant to section 42 of the Act until the extension period has lapsed.

According to Justice Kane, a deemed refusal under subsection 10(3) occurs only when a government institution fails to grant access to the records within the time limit set out in the Act or any applicable time extension. Therefore, the Information Commissioner can only investigate a complaint about a claimed extension of time and make recommendations to the head of the institution as well as highlight any problems in her annual and special reports to encourage timely compliance of the Act. There is no judicial review mechanism open to a requester or to the Information Commissioner for unreasonable extensions of time until such extension has expired.

In obiter, Justice Kane noted the limitation of the Act at paragraph 111 of her decision:

"a five or ten year extension may completely defeat the goals of the Act and may be prima facie unreasonable, yet there remains no recourse to address such extensions".

On March 26, 2014, the Information Commission appealed this decision to the Federal Court of Appeal and is expected to be heard in the fall of 2014. It will be interesting to see if the Court of Appeal agrees with Justice Kane's narrow interpretation of the Act, or if it will conclude that the Act implicitly provides jurisdiction for the Courts to assess the reasonability of extensions sought by institutions so as to provide timely access to records. We will report on this further when a decision is issued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.