A recent case from the Divisional Court interpreted the scope of a tribunal's solicitor-client privilege and deliberative secrecy. Derenzis v. Gore Mutual Insurance Co1 involved an appeal and application for judicial review (heard together) in the Divisional Court regarding several decisions made by the License Appeal Tribunal (the "Tribunal") with respect to the motor vehicle statutory accident benefits of Ms. Derenzis (the "Applicant").
In proceedings before the LAT, the Applicant submitted an affidavit from a former LAT adjudicator, Dr. Karina Kowal, which contained information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator. The Tribunal struck portions of the affidavit and its exhibits on the basis that they were covered by solicitor-client privilege and deliberative secrecy.
The Tribunal also ordered the parties and Dr. Kowal to destroy the affidavits and confirm that this had been done.
Solicitor-Client Privilege
The Tribunal found that the portions of Dr. Kowal's affidavit that related to internal communications from in-house counsel about adjournment requests and other procedural matters were covered by solicitor-client privilege. Specifically:
a. mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments and production requests, including production of log notes and interlocutory decisions;
b. a memo from the legal department setting out procedures on how to deal with adjournments and an internal bulletin by them to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal counsel; and
c. a bulletin on various topics.
On appeal and judicial review, the Divisional Court noted that owing to the nature of the work of in-house counsel having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if privilege arose in the circumstances. The Divisional Court found that the Tribunal's assessment that these portions of the affidavit related to in-house counsel providing legal advice was reasonable.
Deliberative Secrecy
Deliberative secrecy is intended to create a zone of privacy around the adjudicator's decision-making process. It includes both substantive and procedural aspects of the decision-making process. To illustrate:
- Substantively: it includes adjudicators' deliberations and notes related to a specific decision.
- Procedurally: tribunals' internal processes and means of assigning cases to adjudicators.
However, an administrative tribunal's deliberative privilege is not absolute. Where a party can present valid reasons to believe that the tribunal's process was procedurally unfair, deliberative privilege will be lifted.
The portion of Dr. Kowal's affidavit that the Tribunal found to be covered by deliberative privilege can be summarized as follows:
a. internal memos and documents about the process to be followed when considering an adjournment, including that approval must be obtained from a Vice Chair;
b. internal memo about how files involving particular law firms known to be challenging and involving particular types of claims will be triaged and assigned to more experienced adjudicators;
c. internal memo advising that interlocutory decisions would no longer be eligible for requests for reconsideration;
d. Dr. Kowal's attestation that adjudicators were concerned about the inherent bias of reviewing their own decisions on reconsideration; and
e. Dr. Kowal's attestation that she was admonished for not obtaining approval before granting adjournments.
The Divisional Court upheld the Tribunal's finding that these documents were covered by deliberative privilege as reasonable. The Divisional Court noted that these documents discussed the Tribunal's consultative process, which entailed interaction between the adjudicators who have heard the case and the members who have not.
Previous cases have recognized that administrative tribunals are permitted to engage in consultative processes (and in fact that such processes are important to promote consistency) as long that the consultative process complies with the following:
a. the question for discussion is one of policy rather than fact;
b. that in the end the panel is free to make its own decision; and
c. that if the discussion at the full board raises matters not addressed by the parties, that the parties be put on notice and permitted to make representations before a decision is made. 2
The Divisional Court also agreed with the Tribunal's assessment that no evidence was presented that raised a genuine concern about procedural fairness and warranted that deliberative secrecy be lifted.
Ordering Destruction of the Affidavit
The Applicant also challenged the Tribunal's jurisdiction to order the destruction of the affidavit. The Divisional Court found that the tribunal did have the jurisdiction to make such an order. As a Tribunal governed by the Statutory Power Procedures Act ("SPPA"), the Tribunal had the jurisdiction to control its own processes and record. This included the jurisdiction to order parties, their representatives, witnesses, and affiants not to distribute the offending documents and to destroy them.
However, the Divisional Court noted that the more prudent process in many cases would be to seal the documents pending completion of any judicial review procedure or appeal. This slightly more limited order would preserve the ability of the appellate court to restore the copies to the parties in the event of a successful appeal or judicial review.
Conclusion
This decision is a helpful illustration of the application of solicitor-client privilege and deliberative secrecy. It also reinforces that SPPA tribunals have broad jurisdiction to make orders to control their own processes and prevent abuse of their processes, including to order the sealing and destruction of privileged documents.
Footnotes
1. 2025 ONSC 2732.
2. Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
