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JR - Record to be Filed [JRPA 10] (2). R(H.C.) v. Children’s Aid Society of Toronto
In R(H.C.) v. Children’s Aid Society of Toronto (Ont Divisional Ct, 2025) the Divisional Court conducted a case conference, here in respect of a JR of a decision of the Child and Family Services Review Board.
Here the court considers any duties of a tribunal to record and prepare a "transcript of the prehearing and hearing be produced by the Board":[17] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”):When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made. [18] The phrase “record of proceedings” is not defined under the JRPA. At common law, the record consists of “… all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings”: R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, [1952] 1 All E.R. 122, at p. 130, per Lord Denning. The record should contain “... the pleadings or analogous documents, the evidence that was before the decision-maker, and transcripts (if oral evidence was taken and recorded for purposes of transcription).”: LifeLabs LP v. Information and Privacy Commr. (Ontario), 2022 ONSC 5751, at para. 14, per D.L. Corbett J.
[19] The Board is one of thirteen tribunals of Tribunals Ontario. At the time that the hearing was held on November 14, 2024, Tribunals Ontario had previously issued the following policy, dated June 28, 2024, which states that the Board would audio record its hearings, but not its pre-hearing events, for internal quality assurance purposes:Starting July 2024, tribunals under Tribunals Ontario will audio record hearings. The audio recordings will be used for internal quality assurance purposes.
The Landlord and Tenant Board, Social Benefits Tribunal and Ontario Parole Board have been recording their hearings for many years. Effective July 1, 2024, the Animal Care Review Board, Assessment Review Board, Child and Family Services Review Board, Custody Review Board, Fire Safety Commission, Human Rights Tribunal of Ontario, Licence Appeal Tribunal and Ontario Special Education Tribunals will also record their hearings.
Tribunals will not audio record any “pre-hearing events” such as case management conferences, mediations, and settlement conferences unless the tribunal orders otherwise. Individuals who wish to make their own audio recording of a hearing must seek the approval of the tribunal. [20] In light of the above policy, the Board has confirmed that an informal audio recording of the hearing held pursuant to s. 120 of the Act on November 14, 2024 exists. There is no indication of how the recording was made nor of its quality or completeness. Typically a court reporter is required to record the audio of the hearing and to take notes during the hearing, when needed, to ensure that the audio can be accurately transcribed. This formal process is consistent with the requirements for the admissibility of a transcript imposed by s. 5(2) of the Evidence Act, R.S.O. 1990, c. E.23.
[21] There is no obligation on a tribunal to prepare and keep an audio recording of a hearing for purposes of transcription, nor is there any obligation on a tribunal to have prepared a transcript: See Endicott v. Ontario (Independent Police Review Office), 2014 ONCA, at paras. 41, 46.
[22] The Board refuses to prepare a transcript of the hearing from the informal audio recording. However, it does not object if the applicant wishes to do so. The Society takes no position. I have concerns whether a transcript based on the recording will be admissible given s. 5(2) of the Evidence Act as well as the likelihood that it will be difficult to prepare a reliable transcript based on this audio. Nevertheless, the applicant is adamant that he requires a transcript of the hearing in order to advance the merits of his application for judicial review.
[23] Accordingly, I order that the Board release a copy of the informal audio recording of the hearing held on November 14, 2024 to the applicant. Any transcript prepared from this recording shall be at the applicant’s own cost. The applicant shall comply with the following terms sought by the Board:The recording, and any transcript created from the recording, must not be used for any purpose outside of this application for judicial review and must not be shared with or disseminated to anyone. If a transcript created from the recording is filed in court on this judicial review, it must be redacted or initialized to remove any information that may have the effect of identifying the child or the child’s parents. [24] This order should not be interpreted as determining that whatever transcript is prepared from the informal audio recording prepared for the hearing will be admitted as evidence at the hearing of the application for judicial review. The Society and the Board also reserve their right to challenge the admissibility of whatever transcript, if any, is prepared. . LifeLabs LP v. Information and Privacy Commissioner of Ontario
In LifeLabs LP v. Information and Privacy Commissioner of Ontario (Div Court, 2023) the Divisional Court considered an exception to deliberative 'secrecy' (privilege), here in the context of what may be allowed in the record:[15] The motion judge also quoted an accurate statement of the law relating to deliberative secrecy in Summit Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), paras. 76-82, which recognized that this principle applies to administrative tribunals, although less strongly than to the courts. The motion judge recognized that adjudicative privilege, as he called it, could be displaced where it was necessary to establish procedural unfairness or a breach of natural justice. He observed, correctly, at para. 17, that the party seeking to pierce deliberative secrecy bears the onus, and that “this onus is not discharged on the basis of speculation, conjecture or simple allegation alone: there must be a foundation before the court for the allegation that not only raises an issue of procedural fairness, but also justifies displacing the privilege in order to adjudicate the procedural fairness issue.”
[16] This conclusion is consistent with the law stated by the Supreme Court of Canada in Tremblay v. Quebec (C.A.S.), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952, at 966, that although “secrecy remains the rule”, “it may nonetheless be lifted when the litigant can present valid reasons for believing that the process followed did not comply with the rules of natural justice.” The Court went on to suggest that this would be limited to “exceptional cases.” See also: Payne v. Ontario (Human Rights Commission), 2000 CanLII 5731 (Ont. C.A.), at para. 172.
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[25] The motion judge found that all appropriate internal documents were already included in the record and that the record should not include internal documents such as staff analyses or reports. In Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), 2019 BCCA 60, the British Columbia Court of Appeal stated at para. 49 that the principle of deliberative secrecy “grants protections to internal consultative processes that involve interactions between adjudicators who hear cases and other members of a tribunal, within specified parameters. Absent some evidence that a tribunal failed to follow the proper parameters, a court may not reverse the presumption of regularity of the administrative process: Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4 at paras. 52, 53, 55.” The motion judge’s finding regarding category (b) is consistent with the principle articulated in Eastside. . Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing
In Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing (Div Ct, 2021) the Divisional Court considered the appellate use of transcripts of evidence in an administrative context:[111] By governing legislation and at common law, the LAT may keep a transcript of proceedings, but is not required to do so: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 20(e); Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 6(3); 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579 (Div. Ct.), at para. 15; Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793, at paras. 75-76.
[112] Even so, the absence of a complete transcript of a hearing can result in a denial of natural justice if there is the “serious possibility” that it prevents an appellate court from being able to consider a ground of appeal. The issue is whether the record that is before the appellate court still permits it to properly dispose of the appeal. This is so, even if the tribunal promised to make a recording of the proceeding: Canadian Union of Public Employees, Local 301, at paras. 72, 81. The onus of demonstrating the serious possibility that a ground of appeal cannot be pursued lies on the appellant: 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), [2017] O.J. No. 2967 (Div. Ct.)(“Swazzees”), at para. 15(d).
[113] Moreover, it is not enough simply to raise the mere possibility of prejudice from the failure of the record; hypothetical or speculative possibilities of prejudice do not suffice: Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 (Div. Ct.), at para. 8. This aligns with the principle that where a breach of procedural fairness is “inconsequential, trivial or merely technical in nature”, a request for a rehearing may properly be denied: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, at paras. 66-67. In other words, something more than a mere generalized claim of prejudice is required: Aliai v. Canada (Minister of Citizenship and Immigration), 2017 FC 82, at para. 23.
[114] Aspects of an appeal or the record on appeal can obviate the need for a full transcript. Where the right of appeal is limited to questions of law, the absence of a transcript of evidence is unlikely to deprive parties of the ability to argue a ground, particularly when the tribunal has provided full reasons for its decision: Billion v. Vaillancourt, 2016 ONSC 5820 (Div. Ct.), at para. 7; 554846 Ontario Ltd. (c.o.b. as the Wine Cellar U-Brew) v. Ontario (Alcohol and Gaming Commission), [2004] O.J. No. 438 (Div. Ct.), at para. 2. Prejudice from gaps in the recording of evidence can be compensated for by evidence summarized in submissions from a party in support of its position: Swazzees, at para. 15(c).
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