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Judicial Review - Hearing Record [SPPA 20]

. Torgerson v. Health Professions Appeal and Review Board

In Torgerson v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court considered documents to be included in the 'record' on a judicial review application under the JRPA:
[12] Section 20 of the SPPA sets out the documents to be included in a record of proceeding. These include, at subparagraph (f), the “decision of the tribunal and the reasons therefor, where reasons have been given”. Dr. Torgerson argues that the summary published on the CPSO’s website forms part of the ICRC’s reasons for decision and is therefore properly before the Court on the application for judicial review.

[13] The HPARB argues that the SPPA does not apply to its review of ICRC decisions under the Code and that its obligation to file a record of proceeding arises from section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) and not from the SPPA. It further argues that, given that the summary was not part of the record on the review, it does not form part of the record of proceeding to be filed with the court.

[14] I agree with the HPARB’s position. Its obligation to file a record of proceeding arises from section 10 of the JRPA and the SPPA has no relevance here. The summary is only to be included in the record of proceeding if it formed part of the record before the HPARB on the review. Even if section 20 of the SPPA applied to the review of a decision by the ICRC, which it does not, the summary of the decision posted on the CPSO’s website does not fall within the scope of section 20(f).

[15] However, in my view, Dr. Torgerson should be allowed to file an affidavit attaching the summary of the decision. As a general rule, applications for judicial review are to be decided on the record before the original decision maker. There are limited exceptions to this principle. The Divisional Court summarized these exceptions in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10 to 12. One of the exceptions, as set out in para. 11 of that decision, is that affidavit evidence may be admitted “to provide general background that might assist the court in understanding the underlying issues”.

[16] In this case, one of Dr. Torgerson’s arguments on the application of judicial review is that the HPARB’s decision was unreasonable because it failed to have regard to the punitive effect of the caution given its publication on the CPSO website. In order to understand and address this argument, it will be helpful for the Divisional Court panel to have access to the summary posted on the CPSO’s website.

[17] Ultimately, it will be up to the panel to decide whether this argument is available to Dr. Torgerson, having regard to whether it was raised before the HPARB or whether the HPARB would even have had jurisdiction to consider the issue. However, at this early stage in the application for judicial review, given the issues raised in the Notice of Application for Judicial Review, I find that the Dr. Torgerson can file the proposed affidavit and it will be up to the panel on the hearing of the application for judicial review to determine what relevance, if any, it may have to the issues to be decided.

[18] While I recognize that this Court has directed that it is generally preferable for the record on an application for judicial review to be determined in advance of the hearing: Sierra Club Canada v. Ontario, 2011 ONSC 4086 (Div. Ct.), at paras. 7-9. In cases such as this one where the evidence the applicant seeks to adduce is inextricably intertwined with an issue raised on the application, the panel hearing the application will be in the best position to determine what, if any, relevance the evidence may have to the merits of the application.
. Poyton v. Office of the Independent Police Review Director [s.20(d) - redaction practice]

In Poyton v. Office of the Independent Police Review Director (Div Ct, 2022) the Divisional Court considered practice issues where a self-represented party sought to redact parts of a judicial review record:
Issue (b) Redactions in the Record

[7] The respondent has redacted the record to remove personal information about persons involved in the case, to protect the privacy of those persons. The respondent has not sought to file an unredacted record with the court because, in the respondent’s view, none of the redacted information is material to the issues on the application.

[8] Mr Poyton has unredacted copies of most or all of the redacted documents: they are documents that he, himself, provided to the respondent and/or to PRPS. Much of the redacted information pertains to Mr Poyton himself.

[9] Mr Poyton understood that a complete record of what was before the respondent ought to be before this court on the application. Technically that is correct, and where it is necessary to do so, this court will direct that a redacted record be filed publicly and an unredacted record be provided to the court in a secure manner. As this matter was discussed in oral argument, Mr Poyton acknowledged the reasonableness of this approach. In the result, I dismiss the request that an unredacted record be filed, but I give the following directions for the information that has been redacted.


(a) If there is any redacted information in the record that Mr Poyton does not have, he may request an unredacted copy from the respondent for the purposes of this proceeding, on providing an undertaking not to divulge it to any person except as authorized by this court.

(b) If the respondent declines any request made by Mr Poyton under (a), it shall need to bring a motion before this court for a sealing order for that information.

(c) If the parties conclude that any of the redacted information needs to be provided to the court for the court to adjudicate the application on the merits, they shall provide this court with a consent, draft order, and an explanation of the request for a sealing order for this information to be provided to the court.

(d) If the parties disagree in respect to any issue under (c), the party wishing to have the redacted information placed before the court shall request a case conference with this court to schedule a motion on that issue.
This rather complicated procedure is established based on my assessment that, when the applicable principles were explained to Mr Poyton during the motion, he understood the underlying purpose of the redactions and accepted that there was no need to burden the application court with two records if redacted information is not material to the application. For example, Mr Poyton’s OHIP number is not material to the application, and he has an important privacy interest in seeing that this personal information of his is not included in a court file that will forever remain open to be viewed by any member of the public. I would add a caveat that documents that are already in the public record (such as a publicly available decision in immigration proceedings) would not seem to qualify as documents in respect to which a person may have a continuing privacy interest. Given these observations, the court hopes and believes that there will be few, if any, disagreements over this issue now that it is better understood.
. Watson v. The Corporation of the Municipality of Stirling-Rawdon

In Watson v. The Corporation of the Municipality of Stirling-Rawdon (Div Ct, 2021) the Divisional Court considered s.20(d) of the SPPA, which reads:
s.20
A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, .... (d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
The issue was the extent to which evidence used in a report of the Integrity Commissioner for a municipality could be compelled in disclosure as part of the record in a judicial review application:
[3] The issue in part turns on the relationship between the Commissioner’s obligation under the Judicial Review Procedure Act and Statutory Powers Procedure Act to file the “record of proceedings” before him and the Commissioner’s obligation to preserve the confidentiality of all matters that came to his knowledge in the course of exercising his duties under Part V.1, as prescribed by s. 223.5 of the Act [SS: Municipal Act, 2001].

....

[11] The Commissioner’s duty to preserve secrecy is set out in s. 223.5 of the Act:
The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part.
[12] Section 223.6(2) of the Act sets out a discretionary exception to s. 223.5:
If the Commissioner reports to the municipality or to a local board his or her opinion about whether a member of council or of the local board has contravened the applicable code of conduct, the Commissioner may disclose in the report such matters as in the Commissioner’s opinion are necessary for the purposes of the report.
[13] The applicant’s first argument is that, because the Commissioner’s report discloses some of the facts and evidence considered or relied on by the Commissioner, he has “engaged the statutory exception to the duty to preserve secrecy with respect to the evidence”. As such, the argument goes, there is no longer a statutory duty to preserve the secrecy of any evidence obtained by the Commissioner during his investigation. Further, by virtue of being referred to in the report, the applicant argues, it must be inferred that all the evidence is therefore “necessary for the purposes of the Report” within the meaning of s. 223.6(2) of the Act and ought to be disclosed.

[14] I do not accept this argument. The discretion about what is “necessary” to disclose and what is not is conferred on the Commissioner, not the court. Mandamus generally does not lie to compel the exercise of discretion. More importantly, if accepted, the applicant’s argument would rob the confidentiality obligations of the Commissioner under s. 233.5 of all meaning. Every integrity commissioner’s report is going to make some reference to the evidence uncovered in an investigation. If this constituted, in every case, an effective waiver of the “secrecy” requirement for everything gathered by the commissioner in the course of an investigation, the entire purpose of the enactment of s. 233.5 and the discretion afforded in s. 233.6 would be defeated.

[15] The applicant’s second argument is that s. 233.5 ceases to have force where there is subsequent litigation about the Commissioner’s report which, as here, engages the sufficiency of disclosure by the Commissioner of the case to be met. The applicant argues that it cannot be determined whether she was denied procedural fairness by insufficient disclosure without knowing the details of all the evidence available to the Commissioner, including what she was not given.

[16] In making this argument, the applicant relies on a decision of this Court in Fuda v. Information and Privacy Commissioner et al, 2003 CanLII 12661 (ON SCDC), [2003] O.J. No. 2790. In obiter, the court “noted” that in performing his or her legislative function, a privacy commissioner is performing an inquisitorial function that does not mandate a public hearing. Once a privacy commissioner’s decision is brought to court, however, the review process changes from inquisitorial in nature to adversarial. Absent specific provisions to the contrary, the court went on to say, denial of information in a court setting is the exception and not the norm because, in court proceedings, the presumption of openness applies subject to sound reasons to the contrary.

[17] Thus, the applicant argues, the duty to preserve secrecy under the Act should not minimize or qualify the duty to file in her application for judicial review the full record of all the evidence and other material that was available to the Commissioner.

[18] I cannot accept this argument. Fuda has no application to this case. Fuda was concerned with the general principle of “open” court proceedings, at common law and under s. 135 of the Courts of Justice Act. Fuda did not involve s. 233.5 of the Act or any comparable provision. Fuda acknowledged that the “open-ness” principle must yield to, among other things, “specific provisions to the contrary.” Here, s. 233.5 is a specific provision to the contrary.

[19] More apt in this context is the decision of Marrocco A.C.J.S.C., writing for this Court in DiBiase v. Vaughan (City), 2016 ONSC 5620. In the course of his reasons, the former associate chief justice considered ss. 233.5 and 223.6 of the Act, observing that these sections provide a commissioner with “significant autonomy” regarding the disclosure of information obtained during an investigation. Section 233.5 recognizes that when deciding how much information must be disclosed, a commissioner may take into account specific local concerns associated with disclosure that may require confidentiality or protection of informant’s identities. A commissioner, he wrote, is not required to identify the witnesses or disclose the documents provided by them. He went on to cite the famous passage from Lord Denning in Selvarajan v. Race Relations Committee, [1976] 1 All E.R. 12 (Eng. C.C.) at p. 19, to the effect that a subject of an investigation is entitled to know the case against her and be afforded a fair opportunity of answering it. The investigator is the master of his own process, however, and “need not put every detail of the case” forward in disclosure. It is sufficient if the “broad grounds” are given.

[20] In DiBiase, there is no indication that the Court, in ruling on the sufficiency of disclosure of the “case to be met”, required or had access to the undisclosed, confidential details of the commissioner’s investigation. On the record before me on this motion, I am in no position to evaluate the sufficiency of the disclosure given by the Commissioner at the time nor is that my role. Whether there was sufficient disclosure of the case to be met will be for the panel hearing the application to consider and decide. At this point, I am not prepared to order disclosure of material protected under s. 233.5 and considered by the Commissioner not to be necessary for the purposes of his report. It has not been shown, as a matter of law or procedural fairness, that s. 233.5 can or should be overridden. Section 20 of the SPPA specifically contemplates circumstances where some or all of the evidence available to the tribunal will not be part of the record of proceedings because it is subject to a limitation expressly imposed by another Act. Section 233.5 is such a provision.


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