Executive Summary: Key Legal and Evidentiary Issues

• Scope of “control” over records under the Access to Information Act when multiple, distinct federal institutions within the same health portfolio share public health responsibilities.
• Whether Health Canada’s mandate to monitor vaccine safety created a legal duty to retain, obtain, or control adverse event reports held by the Public Health Agency of Canada (PHAC).
• Assessment of the evidentiary record regarding actual access to, and sharing of, COVID-19 vaccine death reports between Health Canada and PHAC, including affidavit evidence versus publicly available web materials.
• Limits of the Federal Court’s authority under section 41 of the Access to Information Act, particularly whether it can supervise how institutions search for records or expand the scope of what they “should” hold.
• Availability of extraordinary remedies such as mandamus in an access-to-information review and the preclusive effect of section 18.5 of the Federal Courts Act when a specific statutory review mechanism exists.
• Procedural discretion of the Federal Court to exclude voluminous late-filed materials and the standard of appellate deference to such discretionary and fact-intensive rulings.

Facts of the case

In April 2023, the appellant, Jordan Ash, submitted an access to information request to Health Canada under the federal Access to Information Act. He specifically sought all individual reports of death associated with COVID-19 vaccinations. After conducting what it considered to be a reasonable search of the records under its control, Health Canada located and disclosed 236 individual reports responsive to his request. At the same time, Health Canada informed Mr. Ash that the Public Health Agency of Canada (PHAC), a separate government institution listed in Schedule I of the Act, would likely have additional records relevant to his request and suggested that he submit a separate access request directly to PHAC. Although Mr. Ash accepted that he could have filed a new request with PHAC, he chose not to do so. Instead, he maintained that additional records—based on public information suggesting approximately 427 reports of deaths possibly linked to COVID-19 vaccines across the federal system—ought to have been disclosed by Health Canada itself. The core factual tension in the case arises from the institutional structure of the federal health portfolio: both Health Canada and PHAC have roles in monitoring vaccine safety, but they are legally distinct institutions with separate delegations of authority under the Access to Information Act and different record-holding and surveillance responsibilities.

Proceedings before the Information Commissioner and Federal Court

Mr. Ash filed a complaint with the Office of the Information Commissioner, asserting that Health Canada had failed to conduct a reasonable search and thereby improperly refused him access to records contrary to paragraph 30(1)(a) of the Act. His central position was that additional death reports should exist within the federal government and that Health Canada must, by virtue of its mandate, be in a position to obtain or control them. In March 2024, the Information Commissioner issued a final report concluding that the complaint was not well-founded. The Commissioner accepted that Health Canada had carried out a reasonable search of the records under its control and had disclosed all responsive records it held. The Commissioner further accepted Health Canada’s evidence that the additional death reports were under the control of PHAC, not Health Canada, and that Health Canada had adequately explained why it did not have control of those records. Mr. Ash then brought an application for review to the Federal Court under subsection 41(1) of the Access to Information Act. In that application, he did not challenge the reasonableness of Health Canada’s search as such. Rather, he argued that Health Canada’s statutory mandate to monitor vaccine safety and safeguard public health created a broader legal duty to maintain, under its control, all records responsive to his request, including the PHAC-held reports. He contended that Health Canada’s duty of disclosure therefore extended to obtaining and producing records from other institutions that, in his view, it should possess. In addition to seeking disclosure, he requested relief in the nature of mandamus compelling Health Canada to obtain the remaining records from PHAC and release them in response to his original access request. He also sought a broad declaration that government institutions must, when responding to access requests, obtain documents that under law should be under their control. The Federal Court (Gleeson J.) dismissed the application in 2025 FC 914. It held that, under section 41 of the Access to Information Act and the Federal Court of Appeal’s decision in Blank v. Canada (Justice), the Court’s role is confined to determining whether access has been refused to records actually under the institution’s control and, if so, to ordering their disclosure. It is not to supervise how the institution organizes or defines its record holdings, nor to reconstruct the proper scope of the institution’s mandate for the purpose of deciding what records it should have. The Court also declined to grant the requested declaratory relief and refused Mr. Ash’s attempt to introduce approximately 450 pages of additional documents one hour before the hearing, finding the late material unsupported by affidavit evidence, unfair to the Attorney General of Canada, and of limited relevance given the issues properly before the Court.

Issues before the Federal Court of Appeal

On appeal to the Federal Court of Appeal, Mr. Ash shifted and refined his arguments. He accepted that the usual appellate standards of review applied: correctness for legal questions and palpable and overriding error for factual or mixed questions. He challenged the Federal Court’s conclusion that the disputed records were not under the control of Health Canada and argued that the judge should have found Health Canada to have “de facto control” over the PHAC-held immunization reports by applying a broad and liberal interpretation of “control” under subsection 4(1) of the Access to Information Act, as articulated by the Supreme Court of Canada in Canada (Information Commissioner) v. Canada (Minister of National Defence. Mr. Ash contended that because Health Canada and PHAC share responsibility for monitoring vaccine safety, the death reports held by PHAC were effectively under Health Canada’s control for access purposes. He also maintained that the Federal Court erred in refusing to grant mandamus compelling Health Canada to obtain the documents from PHAC, arguing there was a public legal duty on Health Canada arising from its health protection mandate and from the broader purposes of the access legislation. Additionally, he argued that the Federal Court wrongly treated the section 41 review process as akin to an appeal for the purpose of section 18.5 of the Federal Courts Act, which bars separate judicial review where an “appeal or other adequate remedy” exists. Finally, he attacked the exercise of discretion in excluding his late-filed 450 pages of material, claiming the Court should have accepted and considered those documents as part of the evidentiary record concerning Health Canada’s mandate.

The Court’s analysis on control of records

The Federal Court of Appeal, per Pamel J.A. (with Webb and Gleason JJ.A. concurring), held that the Federal Court’s conclusion that the records were not under Health Canada’s control was a factual and mixed question properly entitled to deference, absent legal error. Reviewing the record, the Court emphasized the affidavit evidence from Health Canada that it did not have access to the adverse events following immunization (AEFI) reports submitted to PHAC and that PHAC did not share its received reports with Health Canada. That direct evidence of non-access and non-sharing was weighed against Mr. Ash’s reliance on a government website chart that, at most, suggested some information-sharing between the two institutions. The Court accepted the Attorney General’s position that there is a meaningful distinction between sharing certain information for public health purposes and having “control” over particular documents for access-to-information purposes. Drawing on National Defence, the Court reiterated that “control” requires some “power of direction or command” over the records, and found no evidence that Health Canada had such authority over the PHAC-held reports. The Court also rejected Mr. Ash’s attempt to rely on National Defence to collapse distinct Schedule I institutions into a single entity simply because they share a minister and work within the same portfolio. Citing its own decision in Yeager v. Canada (Public Safety and Emergency Preparedness), the Court reaffirmed that institutions separately listed in Schedule I cannot be treated as one amalgamated institution for access purposes merely because they belong to the same ministerial portfolio. The records in National Defence concerned a minister’s office versus the home department, whereas here the records were in the hands of a different, legally distinct institution with its own statutory mandate and surveillance program. On that basis, the Court concluded that Health Canada did not have de facto control over PHAC’s reports, and there was no reviewable error in the Federal Court’s finding that Health Canada had disclosed all responsive records actually under its control.

Mandamus and procedural issues

Turning to the requested remedy of mandamus, the Court agreed with the Federal Court that such extraordinary relief is not available in a section 41 Access to Information Act review. Mandamus and related prerogative remedies are conferred in applications for judicial review under section 18.1 of the Federal Courts Act, by virtue of section 18(3). A section 41 proceeding is a specialized statutory review mechanism focused on access rights and disclosure orders, and it cannot be transformed into a vehicle for supervisory orders directing how institutions must organize or expand their record holdings. Even if the remedy were theoretically available, the Court held that Mr. Ash had not demonstrated the foundational requirement for mandamus—namely, a clear public legal duty on Health Canada to obtain the PHAC-held records on his behalf. Absent such a duty, the strict test outlined in authorities such as Apotex Inc. v. Canada (Attorney General) could not be met. The Court also addressed Mr. Ash’s objection to the Federal Court’s use of section 18.5 of the Federal Courts Act. Relying on Canadian National Railway Company v. Scott, the Court upheld the view that the term “appeal” in section 18.5 encompasses any meaningful statutory remedy that allows a decision to be challenged, not just a formal appeal in the strict sense. A section 41 review is plainly a meaningful and comprehensive remedy in relation to access decisions. Consequently, section 18.5 bars the use of a separate judicial review route to seek mandamus in respect of the same subject matter already subject to the section 41 process. In addition, the Court considered Mr. Ash’s complaint about the Federal Court’s refusal to accept his last-minute 450-page filing. It held that this was a discretionary procedural decision that should be disturbed only where exercised on a wrong principle or causing clear injustice. The Federal Court had reasonably concluded that the unsworn, late-filed material was unfair to the Attorney General, would impede the Court’s ability to discharge its role, and was of limited relevance given that the proper focus was on access to records under Health Canada’s control, not a generalized exploration of its mandate. The Court of Appeal saw no reason to interfere with that exercise of discretion.

Outcome and significance

In the result, the Federal Court of Appeal dismissed Mr. Ash’s appeal. It confirmed that the Access to Information Act grants a right of access to records “under the control” of a particular government institution, not a generalized right to all records that a requester believes the institution ought to hold. Where institutions like Health Canada and PHAC are separately enumerated in Schedule I and operate distinct programs under different statutory mandates, courts will be reluctant to treat their records as fungible or to impose an obligation on one to obtain and disclose the other’s documents in the absence of a clear legal basis. The decision also underscores that a broad, purposive interpretation of “control” remains bounded by evidence of real power over the records, not mere functional overlap or policy collaboration. Finally, the Court’s reasons reinforce structural limits on access-to-information review: section 41 is not a platform for supervisory management of institutional mandates or for extraordinary remedies like mandamus, particularly where section 18.5 of the Federal Courts Act directs parties to use the dedicated review framework already provided. On the specific outcome, the Court held that Canada (Minister of Health) was the successful party, the appeal was dismissed, and—because the Attorney General of Canada had not sought costs—no costs were awarded. There were no damages or other monetary awards ordered in favour of the Minister, so the total monetary amount granted in favour of the successful party cannot be stated other than to note that it is effectively zero.