Federal Court applications under the Privacy Act - Office of the Privacy Commissioner of Canada Skip to main content Skip to "About this site" Federal Court applications under the Privacy Act Under section 41 of the Privacy Act, an individual may request a hearing before the Federal Court of Canada only in relation to a refusal by a government institution to provide an individual access to his or her personal information held by the government institution about which a complaint was made to the Office of the Privacy Commissioner of Canada (OPC). A section 41 application is a legal proceeding commenced in the Federal Court of Canada. The OPC has prepared the following information to help complainants understand their rights and guide them through the process of applying for a court review of a government institution’s refusal to give them access to their personal information. Introduction This document is intended to provide helpful information to guide complainants through the process of applying to the Federal Court for a review under section 41 of the Privacy ActFootnote 1 (the Act) of a refusal to give access to personal information. For more information, please refer to the Federal Courts Rules,Footnote 2 which can be found on the Department of Justice Canada website. What is a section 41 application? A section 41 application is a request for a hearing in the Federal Court regarding a refusal by a government institution to provide an individual access to his or her personal information held by the government institution about which a complaint was made to the Privacy Commissioner of Canada. The complainant may make this application only after the Commissioner has investigated the matter and has issued a final report. What are the issues involved? A section 41 application is made only in relation to a complaint regarding a refusal by a government institution to provide the complainant with access to his or her personal information after the complaint has been investigated and the results reported to the complainant by the Privacy Commissioner. A section 41 application may not be made in regard to the collection, use or disclosure of a complainant’s personal information by a government institution. What is the purpose of a section 41 application? The purpose of a section 41 application is to ask the Court to determine whether the government institution respected the applicable provisions of the Act in refusing to provide access to personal information sought by an individual. It is not to review the report prepared by the Privacy Commissioner. What evidence must be brought forward? The Federal Court takes a fresh look at the evidence produced by both parties. Any evidence on which the applicant wishes to rely must be set out in a detailed affidavit. However, the government institution bears the ultimate burden of establishing that it was authorized under the Act to refuse to disclose the requested personal information. The nature of the government institution’s burden will depend on whether the government institution refused to disclose the personal information based on a “mandatory exemption” or a “discretionary exemption.” In the case where the government institution refuses to disclose personal information sought by an individual based on a “mandatory exemption” (that is, the Act requires the government institution to exempt the information from disclosure), the government institution must show that the personal information requested comes within the definition of the information which the Act requires to be exempt. Where the government institution has discretion in determining whether to disclose the information, the government institution must show that it exercised its discretion in good faith and for a reason rationally connected to the purpose for which that discretion was granted.Footnote 3 Why would I want to file an application under section 41 of the Act? Since the recommendations in the Privacy Commissioner’s report are not legally binding, applicants may bring a section 41 application to have those recommendations relating to a government institution’s refusal to provide access to the applicant’s personal information enforced by a Court. The applicant may also ask the Court to make other orders against the respondent government institution. For more information on the remedies available, see Question 4. In cases where the Privacy Commissioner finds the complaint is not well-founded, the complainant may disagree with that finding and ask the Court to issue a ruling to the contrary. What can the Federal Court order in the context of a section 41 application? Sections 48 and 49 of the Act provide the Court with the discretion to order any of the following: that the personal information be disclosed subject to any conditions the Court deems appropriate; and/or such other order that the Court deems appropriate. Do I need to have a lawyer to bring an application to the Federal Court? You do not need to have a lawyer to commence and proceed with a section 41 application in Federal Court. Although the experience and expertise of legal counsel may assist you in this process, you may choose to represent yourself. Who can file an application with the Federal Court? Under the Act, it is only the individual complainant who may file a section 41 application in Federal Court, and not the government institution. What is the role of the Privacy Commissioner in this process? Under section 42 of the Act, the Privacy Commissioner can appear on behalf of a complainant who has applied for a review under section 41 or, with the Court’s permission, can appear as a party to the proceedings. Even if the complainant chooses not to proceed with a section 41 application, the Privacy Commissioner can apply to the Federal Court for a review of any refusal to disclose personal information where the Commissioner has completed the investigation and has the consent of the complainant. In such cases, the Privacy Commissioner’s Office will contact the complainant in order to obtain his or her consent prior to applying for a court hearing. The Privacy Commissioner does not, however, represent the complainant before the Federal Court or provide the complainant with legal advice. When can a section 41 application be filed? Upon concluding the investigation of a complaint, the Privacy Commissioner will issue a report to the complainant summarizing the results of the investigation. A complainant may only file a section 41 application after the results of an investigation have been reported to the complainant. Are there time limits on when I can file my application? Section 41 of the Act requires that the applicant bring the application within 45 days after the results of the investigation into the complaint by the Privacy Commissioner are reported to the complainant, or within any further time allowed by the Court. What happens if I miss the deadline? There are instances in which the time limit for a section 41 application can be extended. However, this decision does not lie with the Office of the Privacy Commissioner. The applicant is required to bring a motion to the Federal Court requesting an extension. This involves filing and serving a Notice of Motion. The Court has discretion to permit the applicant to bring the application, despite missing the filing deadline. The Court will examine whether the applicant meets the criteria established in the case law when deciding whether to exercise its discretion. The case law outlines the relevant criteria, including the following: whether the applicant intended to apply to the Court within the limitation period set out; the length of the period for which an extension would be required; whether any and what prejudice to an opposing party would result from an extension being granted; and whether the applicant has an arguable case.Footnote 4 Who is the respondent (i.e. the other side) in a section 41 application? A section 41 application is not a review of the Privacy Commissioner’s report. Rather, it is a determination of whether the government institution respected the provisions of the Act in refusing to disclose personal information. As such, the only proper respondent in a section 41 application is the government institution in relation to which the applicant brought the original complaint to the Privacy Commissioner. What are the steps involved in a section 41 application? Step 1: Notice of Application Within 45 days after the results of the investigation into the complaint by the Privacy Commissioner are reported to the complainant, the applicant must file a Notice of Application with the Federal Court Registry. This document includes the names of the parties and informs the respondent government institution that it is the respondent in a section 41 application under the Act. The Notice of Application must set out the precise remedies sought, and state the grounds to be argued before the Court. The Notice of Application must also indicate whether the applicant will be relying on one or more affidavits. Once the Notice of Application is stamped and, therefore, issued by the Registry, it must be served on the respondent, as well as on the Privacy Commissioner, within 10 days. The applicant must file proof with the Court that they have served the respondent government institution and the Privacy Commissioner within 10 days of serving the Notice of Application, by filing an Affidavit of Service. Step 2: Notice of Appearance Within 10 days of receiving the applicant’s Notice of Application, the respondent is required to serve the Applicant with its Notice of Appearance. The respondent then files its Notice of Appearance with the Court. This document indicates that the respondent will participate in the section 41 Court proceeding. Under Federal Courts Rule 145, if the respondent does not acknowledge the Notice of Application with a Notice of Appearance, the applicant is no longer required to serve the respondent with further documentation that it files with the Court prior to final judgment. Step 3: Applicant’s Affidavits and Documentary Exhibits The applicant’s affidavit has to be served on the respondent and then filed with the Federal Court Registry within 30 days from when the applicant filed the Notice of Application with the Registry. For more information on affidavits, see Question 15 below. Step 4: Respondent’s Affidavit and Documentary Exhibits The respondent’s affidavit has to be served on the applicant and filed with the Federal Court Registry within 30 days from the date the respondent was served with the applicant’s affidavits. For more information on affidavits, see Question 15 below. Step 5: Cross-examination on Affidavits The applicant and respondent must complete the cross-examination on each other’s affidavits within 20 days after the filing of the respondent’s affidavit or the expiry of the time for doing so, whichever is earlier. For more information on cross-examining on affidavits, see Question 16 below. Step 6: Applicant’s Record The Applicant’s Record is required to be served on the respondent and filed with the Federal Court within 20 days after the parties have completed cross-examining each other, or the time limit provided for them to do so, whichever is earlier. Note: The full Applicant’s Record and Respondent’s Record includes the following documentation: table of contents with nature and date of each document included; Notice of Application (Applicant’s record only); each supporting affidavit with its documentary exhibits; transcript of any cross-examination on the affidavits that the party has conducted; description of any physical exhibits the party intends to use at the hearing; and the party’s Memorandum of Fact and Law. For more information on the Memorandum of Fact and Law, see Question 17 below. Step 7: Respondent’s Record The respondent’s record must …