Temporary suspension of time limits to seek review by the courts under the Access to Information Act and the Privacy Act
On July 27, 2020, Bill C-20 came into force, enacting the Time Limits and Other Periods Act (COVID-19). In response to the exceptional circumstances resulting from the COVID-19 pandemic, the Time Limits and Other Periods Act (COVID-19) (the Act) temporarily suspended legislated time limits related to court proceedings, including those established under the Access to Information Act (ATIA) and the Privacy Act.
Consequently, the time limits for complainants, government institutions, third parties and the Privacy Commissioner to apply to the Federal Court for review under the ATIA and the Privacy Act were suspended from March 13, 2020 to September 13, 2020. A list of the affected time limits is provided at the end of this notice.
Requesters may note the following temporary changes as a result of the Time Limits and Other Periods Act (COVID-19):
- a) Processing of requests involving third-party information
Requesters awaiting a response to requests under the ATIA involving possible third-party information may experience a delay. The Act suspended the 20-day period for third parties to apply to the Federal Court after receiving notice that a government institution intends to disclose suspected third-party information. As a result, before disclosing a record, institutions must wait until the third party has had an opportunity to exercise the right to file a s. 44 application, according to the suspended time limit.
Consequently, responses to requests for access to this information may be delayed to respect the revised deadline for a third party to apply to the Federal Court for review.
Example:
On March 10, 2020, a government institution gives notice to a third party of their decision to disclose a record containing third party information (ATIA s.28(1)(b)).
Prior to Bill C-20, the third party would have had 20 days after March 10, 2020 – or until March 30, 2020 – to apply to the Federal Court for review. The Act suspended the 20-day time limit from March 13, 2020 to September 13, 2020. The time period started to run again on September 14, 2020. Consequently, the third party’s deadline to apply to the Federal Court is October 1, 2020.
- b) Complaint process
For complainants who received a final report from the Information Commissioner or the results of an investigation into the refusal of access to personal information by the Privacy Commissioner, the Act affected the next steps in the complaint process:
- For complainants who intend to apply for a review, the 30 business-day period to apply under the ATIA and the 45-day period to apply under the Privacy Act do not run during the suspension period. The calculation of the deadline to apply to the Federal Court resumed on September 14, 2020.
Example:
If a complainant received a final report of an investigation by the Information Commissioner (ATIA s.37(2)) dated February 4, 2020, the institution would be deemed to have received the report on February 11, 2020 (5 business days following the date of the report, see ss.37(5)).
Prior to Bill C-20, the complainant would have had 30 business days after February 11, 2020 – or until March 24, 2020 – to apply to the Federal Court for review. The Act suspended the 30 business-day time limit from March 13, 2020 to September 13, 2020. The time period started to run again on September 14, 2020. Consequently, the complainant’s deadline to apply to the Federal Court is September 23, 2020.
Example:
If a complainant received a final report of an investigation by the Information Commissioner (ATIA s.37(2)) dated April 21, 2020, the institution would be deemed to have received the report on April 28, 2020 (5 business days following the date of the report, see ss.37(5)).
Prior to Bill C-20, the complainant would have had 30 business days after – or until June 10, 2020 – to apply to the Federal Court for review. The Act suspended the 30 business-day time limit from March 13, 2020 to September 13, 2020. The time period started to run again on September 14, 2020. Consequently, the complainant’s deadline to apply to the Federal Court is October 26, 2020.
- For complaints made to the Information Commissioner that involved a third party or the Privacy Commissioner, the Act delays the disclosure of records by the institution following the disposition of a complaint by the Information Commissioner. Records will not be disclosed until the suspended time periods for a third party or the Privacy Commissioner to apply to the Federal Court under section 41 have expired.
Example:
If a complainant received a final report of an investigation by the Information Commissioner (ATIA s.37(2)) that was also provided to a third party or the Privacy Commissioner and dated February 4, 2020, the institution would be deemed to have received the report on February 11, 2020 (5 business days following the date of the report, see ss.37(5)).
Prior to Bill C-20, the institution would have waited until the expiry of 40 business days after February 11, 2020 – or until after April 7, 2020 – to disclose the records, in order to give all parties the opportunity to seek a judicial review under s. 41. The Act suspended the 40 business-day time period from March 13, 2020 to September 13, 2020. The time period started to run again on September 14, 2020. Consequently, the records may not be released until after October 7, 2020.
- For complainants who intend to apply for a review, the 30 business-day period to apply under the ATIA and the 45-day period to apply under the Privacy Act do not run during the suspension period. The calculation of the deadline to apply to the Federal Court resumed on September 14, 2020.
Requesters can contact the institution’s ATIP coordinator or their own legal counsel for any questions regarding the effect of Bill C-20.
Annex – Time Limits set out in the ATIA and the Privacy Act affected by Bill C-20
Access to Information Act
41(1)
The 30 business days for a complainant to apply to Federal Court for a review
41(2)
The 30 business days for the head of a government institution to apply to the Federal Court for a review
41(3)
The 10 business days, after the expiry of the period referred to in 41(1),for third parties to apply to the Federal Court for a review, (if no application has been made by a complainant or the government institution)
41(4)
The 10 business days, after the expiry of the period referred to in 41(1), for the Privacy Commissioner to apply to the Federal Court for a review, (if no application has been made by a complainant or the head of an institution)
44(1)
The 20-day period for a third party to apply to the Federal Court for a review following receipt of a notice given by a government institution under paragraph 28(1)(b)
28(4)
The timeline for an institution to give access to records to a requester
Because the time limits set out in section 44 are suspended, institutions must delay the disclosure of records to a complainant under paragraph 28(4) of the ATIA. This is because an institution’s obligation to disclose records under paragraph 28(4) does not apply if a review is applied for under section 44. Institutions cannot be certain if a third party that received a notice under paragraph 28(1)(b) will apply for a review until the suspension period of all applicable time limits under section 44 have ended. Consequently, institutions must wait to disclose records to a requester until the 20-day period set out in section 44, as modified by Bill C-20, has expired.
37(4)(b)
The timeline for an institution to give access to records to a complainant
Because the time limits set out in section 41 are suspended, institutions must delay the disclosure of records to a complainant under paragraph 37(4)(b) of the ATIA. This is because an institution’s obligation to disclose records under paragraph 37(4)(b) does not apply if a review is applied for under section 41. Institutions cannot be certain if a third party or the Privacy Commissioner will apply for a review until the suspension period of all applicable time limits under section 41 have ended. Consequently, institutions must wait to disclose records to a complainant until the 40 business day period set out in section 41, as modified by Bill C-20, have expired
Privacy Act
41
The 45 days for a complainant to apply to Federal Court for a review
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