Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of FOIPPA section 4(1) exclusions for “teaching materials” and “research information” lies at the core of the dispute.

• Chambers judge found the adjudicator’s interpretation unreasonably narrow and remitted the matter for reconsideration.

• Commissioner appealed, asserting the chambers judge applied the wrong standard of review.

• UCalgary argued the adjudicator failed to consider academic freedom and intellectual property protections as part of the statutory context.

• Universities Canada’s application to intervene was dismissed for lack of a distinct contribution beyond UCalgary’s submissions.

• Joint Intervenors were granted limited intervenor status to argue on social activism and propose an alternative analytical approach.

Background and access request

This case arises from a request made under Alberta’s Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 (FOIPPA), directed to the University of Calgary (UCalgary). The request sought documents related to two professors and a specific subject. UCalgary denied access, arguing that the requested records were excluded from FOIPPA under section 4(1), specifically:

• section 4(1)(h): “teaching materials” of an employee of a post-secondary educational body, of a post-secondary educational body itself, or of both;

• section 4(1)(i): “research information” of an employee of a post-secondary educational body.

Adjudicator’s decision and judicial review

A delegate of the Alberta Information and Privacy Commissioner (referred to as the adjudicator) reviewed UCalgary’s refusal. The adjudicator concluded that some of the requested records did not fall within the section 4(1) exclusions and ordered UCalgary to process the access request for those records.

UCalgary then brought a judicial review application. The chambers judge allowed it, holding that the adjudicator’s interpretation of the FOIPPA exemptions was unreasonably narrow. The matter was remitted to a different adjudicator for reconsideration.

Appeal before the Court of Appeal

The Alberta Information and Privacy Commissioner appealed the chambers judge’s ruling. The Commissioner submitted that the chambers judge erred in determining and applying the standard of review and requested that the adjudicator’s decision be reinstated. The Commissioner did not address the chambers judge’s interpretation of the merits due to the Commissioner’s ongoing decision-making role.

In response, UCalgary argued the chambers judge did not err in applying the standard of review. UCalgary maintained that the adjudicator’s interpretation was unreasonable because it failed to consider the statutory context and purpose, including the importance of academic freedom and intellectual property protection. UCalgary also contended that the adjudicator used unduly narrow definitions of “teaching materials” and “research information.”

Applications for intervenor status

Two parties sought to intervene in the appeal:

• Universities Canada, representing 97 post-secondary institutions, applied to intervene on the basis of its sector-wide perspective. However, the Court found that its proposed submissions on collaboration and the broad definition of exempted materials largely duplicated UCalgary’s arguments. The Court also expressed concern that Universities Canada might attempt to introduce new evidence, which would delay proceedings. As a result, its application was dismissed, with no costs ordered.

• Joint Intervenors—consisting of the Faculty Association of the University of Calgary, Canadian Association of University Teachers, and Canadian Association of Law Teachers—also applied for intervenor status. The Court accepted that these organizations, representing faculty members, offered a perspective distinct from that of the university itself. While UCalgary had already argued for a broad interpretation of the FOIPPA exemptions, the Court found the Joint Intervenors could assist in addressing two specific points: (1) the treatment of “social activism” in the adjudicator’s and chambers judge’s decisions, and (2) proposing an alternative analytical approach for applying the exemptions.

The adjudicator had found that research geared towards social activism remained “research,” while the chambers judge distinguished between studying activism and engaging in it. UCalgary briefly objected to this distinction, but the Joint Intervenors intended to focus on it in greater detail and critique the chambers judge’s reasoning.

The Court granted the Joint Intervenors intervenor status, subject to restrictions: a 15-page factum, a maximum of 10 minutes of oral submissions, no new evidence, and no new issues. No costs were awarded for the application, and appeal costs remained at the panel’s discretion.

Policy terms and clause discussion

The statutory provisions at issue were FOIPPA section 4(1)(h) and (i), which exclude “teaching materials” and “research information” from the Act. The adjudicator’s interpretation found that not all of the records qualified for exclusion, while the chambers judge determined that the adjudicator applied an unduly narrow reading. The chambers judge emphasized broader statutory objectives, such as safeguarding academic freedom and intellectual property, which in their view supported broader interpretations of the exemptions.

Outcome

The Court of Appeal allowed the Joint Intervenors to participate in the appeal in a limited capacity. The application by Universities Canada was dismissed. The main appeal regarding whether the chambers judge correctly overturned the adjudicator’s decision remains pending. The case addresses the balance between transparency through access to information and the statutory protections for academic work in the university setting.

No monetary damages or compensation were awarded in this decision.