As we told you here, CALT (along with the Faculty Association of the University of Calgary, and the Canadian Association of University Teachers) intervened in an appeal to the ABCA of an FOI related order from the ABKB.
The decision in Governors of the University of Calgary v Alberta (Information and Privacy Commissioner), 2025 ABCA 350 was released October 28 2025.
ACPD-CALT is delighted to see that the Justices of the Court of Appeal included the following paragraphs in closing, addressing ACPD-CALT's main concern with the ABKB decision:
[40] However, the justice did make obiter comments about the professors’ complaint itself. The Adjudicator had rejected the requestor’s argument that activism could not constitute research information. The justice opined that a distinction should be drawn between academic study of social activism and direct participation in social activism and that participation would be excluded from the definitions in question. The parties to this appeal and the intervenors take the position that this distinction may well lead to arbitrary results. The intervenors propose an analytical framework.
[41] We agree that academic freedom exists to protect all scholarship, including that which may be unpopular or politically targeted. A distinction between participation in activism and study of activism may lead to definitions of “teaching materials” and “research information” which exclude novel teaching methodologies, teaching and research activities on particular topics involving what might be construed as participation in activism, and other direct engagement in the community outside the traditional classroom setting, as well as an academic’s participation relating to responsibilities or duties at their post-secondary institution.
[42] Subject to this proviso regarding the justice’s obiter comments, we conclude that the justice did not err in finding the Adjudicator’s decision to be unreasonable, nor in remitting the matter back to a different adjudicator with direction to consider the request afresh.
[43] Again, the justice did not define the terms in question but provided considerable guidance in his written decision regarding the context and purposes behind the exclusions. He observed that academic freedom and excellence are essential to our continuance as a lively democracy, citing McKinney v University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 SCR 229 at para 69. He referred to the following definition of “academic freedom” from the Canadian Association of University Teachers (CAUT) Policy Statement on Academic Freedom, November 2011:
Academic freedom includes the right, without restriction by prescribed doctrine, to freedom of teaching and discussion; freedom in carrying out research and disseminating and publishing the results thereof; freedom in producing and performing creative works; freedom to engage in service to the institution and the community; freedom to express freely one’s opinion about the institution, its administration, or the system in which one works; freedom from institutional censorship; freedom to acquire, preserve, and provide access to documentary material in all formats; and freedom to participate in professional and representative academic bodies. Academic freedom always entails freedom from institutional censorship.
See also The Faculty Association of the University of Calgary’s Statement on Research Information of an employee of a post-secondary educational body in the Freedom of Information and Protection of Privacy Act, November 5, 2021. Other relevant considerations include the importance of fostering competition in academic research and teaching within and between educational institutions; encouraging collaborative academic environments, which may include collaboration with others outside the academic institution; protecting the process of creating teaching materials and research information; and respect for institutional autonomy.
ACPD-CALT would like to express our gratitude to
- Sean Fluker, also a Professor at University of Calgary and Executive Director of the Public Interest Law Clinic, supported CALT's efforts and has done a great deal of work on this file.
- Counsel for the Faculty Association, Kelly Nychka and Camila Franco of Chivers Carpenter, who brought the case for the joint intervenors.
- CALT Board member Richard Devlin, who has been heavily involved in the work, and our President, Graham Reynolds for his championing of this cause.
See the Memorandum of Argument of the intervenors and the ACPD-CALT President's Affidavit below.
Case history: Decision of the Information and Privacy Commissioner: University of Calgary (Re), 2022 CanLII 76344 (AB OIPC), <https://canlii.ca/t/jrlfx>, appealed and returned for decision by a new Adjudicator, properly informed: Governors of the University of Calgary v Alberta Information and Privacy Commissioner, 2024 ABKB 522 (CanLII), <https://canlii.ca/t/k6lb8>.