Executive Summary: Key Legal and Evidentiary Issues

• The Canadian Taxpayers Federation sought permission to intervene in Northback Holdings Corporation's appeal of a decision dismissing its mandamus application against the Alberta Information and Privacy Commissioner.
   
• Justice Feth applied the established test for intervention, requiring either that an applicant be specially affected by the decision or possess particular expertise bearing on the issues.
   
• OIPC opposed the intervention application while Northback took no position on it.
   
• An oral hearing revealed that the CTF intended to argue the quasi-constitutional nature of the Freedom of Information and Protection of Privacy Act flows from section 2(b) of the Charter.
   
• Neither party raised section 2(b) of the Charter in their submissions on the appeal, making the CTF's proposed submissions a new issue.
   
• Justice Feth concluded the CTF's proposed constitutional argument would not offer particular expertise on the core issues and denied the application.
   

Facts of the case

Northback Holdings Corporation is appealing the decision in Northback Holdings Corporation v Alberta (Environment and Protected Areas), 2025 ABKB 617, which dismissed its application for an order of mandamus compelling the Office of the Information and Privacy Commissioner ("OIPC") to accelerate its review of two requests for information under the Freedom of Information and Protection of Privacy Act, SA 2000 c F-25 (the "Act"). Those requests concerned the denial of approval for Northback's proposed coal project in southern Alberta. The Canadian Taxpayers Federation ("CTF"), a not-for-profit federal corporation that advocates for government accountability and files more than a thousand freedom-of-information requests across Canada annually, applied for permission to intervene in the appeal. Northback took no position on the intervention application, while OIPC opposed it. The appeal is scheduled to be heard on December 11, 2026, and the parties had already filed their factums and extracts by the time of this application.

Policy and legislative provisions at issue

Under rules 14.37(2)(e) and 14.58(1) of the Alberta Rules of Court, Alta Reg 124/2010, a single justice of the Court of Appeal may grant permission to intervene and impose conditions on that intervention. Intervention may be granted where an applicant is either specially affected by the decision or has special expertise or insight bearing on the issues before the court. The CTF initially framed its interest around the timely operation of freedom-of-information schemes and the systemic impact of delay, but at the oral hearing clarified that it instead sought to argue that the quasi-constitutional nature of the Act is derived from the values and protections underlying section 2(b) of the Canadian Charter of Rights and Freedoms. The CTF stated it would not argue a breach of the right to freedom of expression itself, nor raise a new error in the decision below, and would confine itself to existing jurisprudence without introducing new evidence.

Reasoning and analysis

Justice Feth found that Northback was well-represented in the appeal and had not raised section 2(b) of the Charter, nor had OIPC done so in response. The CTF's proposed submissions, even if limited to existing jurisprudence, would introduce a new constitutional dimension focused on freedom of expression that had not been raised in the appeal. The court noted that raising new issues on appeal risks trespassing outside appellate jurisdiction and undermines the principle of finality of litigation, particularly where a constitutional argument is raised for the first time on appeal without a contextual evidentiary foundation, as discussed in Webber Academy Foundation v Alberta (Human Rights Commission), 2018 ABCA 207. While the CTF relied on R v Mian, 2014 SCC 54 to argue its submissions did not amount to a new issue, Justice Feth distinguished Mian as concerned with issues raised by a court on its own initiative, not the CTF's own onus to demonstrate it met the intervention test. The court also held that the CTF's constitutional argument would not bring particular expertise or insight to the core issues in the appeal, which concerned the consequences of delay and "queue jumping" in mandamus relief. Citing Ontario (Public Safety and Security) v Criminal Lawyers' Association, 2010 SCC 23, the court observed that section 2(b) protects access to government-held documents only where access is a necessary precondition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned. The court found those circumstances were not present here, since the records in question were not sought for expressive purposes.

Ruling and overall outcome

Justice Feth was not satisfied that the CTF had met the test for intervention and denied its application to intervene in the appeal. OIPC was the successful party on this application. The decision does not address costs, and no monetary amount was ordered, granted, or awarded.