One of two intervenor applications granted to permit submissions on social activism’s ends
The Alberta Court of Appeal granted an application seeking intervenor status in a case arising from the University of Calgary’s (UCalgary) denial of access to documents requested under the province’s Freedom of Information and Protection of Privacy Act, 2000 (FOIPPA).
In Governors of the University of Calgary v Alberta (Information and Privacy Commissioner), 2025 ABCA 253, UCalgary received a FOIPPA request for documents relating to two professors on a particular subject.
UCalgary refused access on the basis that these documents sought fell within the following exemptions under s. 4(1) of the FOIPPA:
- teaching materials of a post‑secondary educational body, its employees, or both
- research information of a post‑secondary educational body’s employee
An adjudicator, acting as a delegate of Alberta’s information and privacy commissioner, interpreted the relevant provisions, determined that the exemptions did not cover some requested records, and directed UCalgary to process the access request for the non-exempt records.
A chambers judge of the Alberta Court of King’s Bench allowed UCalgary’s judicial review application, found the adjudicator’s interpretation and application of the FOIPPA unreasonably narrow, and asked a different adjudicator to reconsider the case.
On appeal, the commissioner sought to set aside the judge’s decision and reinstate the adjudicator’s decision. The commissioner alleged that the judge erroneously determined and applied the review standard.
UCalgary wanted to dismiss the commissioner’s appeal. It argued that the judge committed no error regarding the review standard. It added that the adjudicator:
- made an unreasonable decision
- failed to consider the objectives of safeguarding academic freedom and the intellectual property of post-secondary institutions and their staff, in line with the exemptions’ purpose and statutory context
- applied unduly narrow definitions of “teaching materials” and “research information”
Universities Canada and joint intervenors – the Faculty Association of the University of Calgary, the Canadian Association of University Teachers, and the Canadian Association of Law Teachers/L’Association Canadienne des Professeurs de Droit – applied to intervene in the appeal.
The proposed intervenors sought to make submissions on the importance of academic freedom and the definitions of “teaching materials” and “research information.”
Universities Canada represented 97 post-secondary institutions, with members such as UCalgary subject to the FOIPPA. The organization wanted to tackle the types of collaboration between universities. It alleged that failing to define the terms “teaching materials” and “research information” broadly could discourage collaboration.
The joint intervenors represented the interests of university faculty members, including the UCalgary professors who were the subject of the access-to-information request. They suggested an alternative analytical approach for adjudicators deciding whether exemptions applied.
The adjudicator determined that the fact that research focused on the ends of social activism would not strip it of its status as research, while the judge drew a clear line between studying social activism and participating in it. The joint intervenors wanted to address this issue and alleged error in the distinction drawn by the judge.
Joint intervenors approved
The Court of Appeal of Alberta granted intervenor status to the joint intervenors, but not to Universities Canada.
The appeal court accepted that Universities Canada and the joint intervenors complied with the first branch of the test for intervenor status because they had members who were particularly interested in or who would be directly or significantly impacted by the appeal’s outcome.
The appeal court then considered whether the proposed intervenors would meet the test’s second branch by providing some special expertise, perspective, or information that could assist in the appeal’s resolution.
The appeal court granted the joint intervenors intervenor status to tackle the topic of social activism and propose a different analytical approach for adjudicators considering whether exemptions were applicable.
The appeal court accepted that the joint intervenors might have a fresh or unique perspective and make helpful submissions.
The appeal court noted that the joint intervenors’ membership consisted of faculty members rather than universities, and the FOIPPA’s statutory exemptions explicitly included “an employee of a post-secondary educational body.”
However, the appeal court found that UCalgary adequately addressed the alleged need for a broad interpretation of “teaching materials” and “research information.” Thus, the appeal court said the joint intervenors’ proposed submissions on this issue would not be helpful.
Regarding Universities Canada, the appeal court declined to exercise its discretion to grant it intervenor status. The appeal court ruled that it would not provide a fresh or unique perspective or submissions not duplicating UCalgary’s arguments.
