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Administrative - Record (2). Derenzis v. Gore Mutual Insurance Co.
In Derenzis v. Gore Mutual Insurance Co. (Div Ct, 2025) the Divisional Court dismissed a LAT SABS joint appeal-JR (Yatar), here where an issue was the admission in evidence of allegedly privileged affidavit "information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator".
Here the court considers the LAT's jurisdiction to make "non-dissemination and destruction orders" regarding offered evidence - which is an wide exploration of what I consider to be administrative 'administrative plenary jurisdiction' - including open court, equitable, abuse of process, control of process, record creation, that drawn from statutes (TARA, SPPA), and even more:Legal Framework
[81] Section 96(3) of the Courts of Justice Act (the “CJA”) grants the Court of Appeal and the Superior Court of Justice the power to grant equitable relief “unless otherwise provided”.
[82] Section 101(1) of the CJA limits jurisdiction over mandatory and injunctive relief to the Superior Court of Justice, unless explicitly conferred by statute: see Fraser v. Beach (2005), 2005 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (C.A.), at para. 8.
[83] Turning to the powers of the Tribunal, it is important to note that pursuant to s. 2 of the SPPA, powers granted are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”.
[84] The Tribunal has the power to control its own process which includes the power to strike evidence that is not admissible. It also has the power to strike segments of documents that are not admissible under the rules of evidence and to make ancillary orders under s. 15 of the SPPA to ensure proper conduct and control of its process under s. 23(1) and 25.0.1 of the SPPA and s. 3(2) of the LATA.
[85] Under s. 15(2) of the SPPA, the Tribunal has discretion to admit any relevant documents if it is not inadmissible and may determine if a document is privileged:(2) Nothing is admissible in evidence at a hearing,
(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
(b) that is inadmissible by the statute under which the proceeding arises or any other statute. [86] The Tribunal’s jurisdiction includes dealing with disputes in accordance with the SABS pursuant to the SPPA, s. 25.1:25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1. [87] In accordance with s. 2(2) of the Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (the “TARA”), the Tribunal may on its own motion order a portion or all of a record be treated as confidential if it determines that its non-disclosure outweighs the principle that records are public.
[88] These confidentiality orders may be filed with the Superior Court and are enforceable: TARA, s. 5.
[89] Reference was made to Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.), leave to appeal refused, 2024 ONCA 944, where the Divisional Court found that the Tribunal may have discretion to exercise equitable powers where it is just to do so on an application to ensure procedural fairness. The court found that these powers are available to ensure procedural fairness, in keeping with the objectives set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. At para. 63 of Davis, the court reiterates the “hallmarks of procedural fairness” stemming from Baker:a. The nature of the decision being made, and the process followed in making it;
b. The nature of the statutory scheme and the terms of the statute pursuant to which that body operates;
c. The importance of the decision to the individual affected;
d. The legitimate expectations of the person challenging the decision; and
e. The choices of procedure made by the deciding body itself. [90] In that case, the applicant had submitted that Aviva’s acceptance of her application for benefits raised an issue of “estoppel” and argued that the Tribunal had equitable powers and should have denied Aviva’s motion. The Divisional Court found that it had equitable powers and it was reasonable not to exercise those powers in the circumstances.
[91] The court relied on Botbyl v. Heartland Farm Mutual Inc., 2023 CanLII 72662 (ON LAT), where the applicants were spouses involved in a motor vehicle accident and sustained numerous injuries and had two motor vehicle policies at the time of the accident. They applied to Economical Insurance for accident benefits, but this policy did not have enhanced benefits. Heartland, the other insurer, denied any liability for the applicant’s enhanced benefits, as the applicants had already submitted an application to Economical. The applicant’s counsel requested relief from forfeiture and a request that Heartland reconsider their decision.
[92] The applicants first applied to the Superior Court requesting a declaration of relief from forfeiture. The court denied the application and found that the Tribunal holds the jurisdiction over such disputes and the matter should first be heard by the Tribunal as it has the jurisdiction to address this dispute involving the applicant’s entitlement to, or amount of accident benefits under s. 280(2) of the Insurance Act.
[93] The Tribunal found that the doctrine of relief from forfeiture can be applied and that the applicants were permitted to rescind their application for accident benefits with Economical and apply for benefits through Heartland. The Tribunal found that although the issue was framed as relief from forfeiture the applicants were really seeking entitlement to the enhanced accident benefits from Heartland that they had purchased which specifically would have increased the weekly IRB payment and increased monetary limits for medical and rehabilitation benefits: Botbyl, at para. 19.
[94] The adjudicator found the Tribunal was the most appropriate venue to hear the issue and referred to Continental Casualty Co. v. Chubb Insurance Co. of Canada, 2022 ONCA 188, 22 C.C.L.I (6th) 1, where the relief of forfeiture was directed to the Tribunal. At para. 108, the court stated in obiter that “potential unfairness arising from an insured’s errors when applying for SABS may, in some cases, be corrected by invoking relief from forfeiture ... .”
[95] After a review of cases, the Tribunal agreed with Justice Turnbull’s earlier decision in the case that there is another process in the SABS for the applicants and can be determined by the Tribunal.
[96] Other tribunals have made orders to control their own process to prevent its abuse.
[97] In Law Society of Ontario v. McDonald, 2024 ONLSTH 47, at paras. 1-3, 38 the Law Society Tribunal ordered a self-represented respondent to return a privileged document that had been inadvertently disclosed, destroy all electronic copies and notes and provide contact information on any individuals who had copies. The respondent was also restrained from using the information and ordered to keep it confidential.
[98] In Ontario Public Service Employees Union (Fortin) v. Ontario, 2017 CanLII 16719 (Ont. GSB), at paras. 25-31, the Tribunal refused to admit documents that the grievor had stolen from her government employer as it breached her duty of confidentiality. The Grievance Settlement Board ordered the grievor and her union to destroy any document and to confirm compliance.
[99] In JP v. Ontario (Health Insurance Plan), 2005 CanLII 77253 (Ont. HSARB), the Health Services Appeal and Review Board ordered a confidential document inadvertently filed by the respondent to be removed from the record and destroyed by the parties.
Application
[100] Statutory tribunals are specialized tribunals dealing with specialized fields and discrete issues and have jurisdiction to control their own processes.
[101] The Tribunal is in the best position to ensure that it maintains procedural fairness while balancing efficiency and participation by litigants before the Tribunal to ensure that there is natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560, at para. 16. It is “the master in its own house it also had the power to determine when it was most efficient and just to conduct a hearing of the appeal”: Toronto (City) v. Avenue Road Eglinton Community Assn., 2019 ONSC 146, 84 M.P.L.R. (5th) 239 (Div. Ct.), at para. 60.
[102] It is within the Tribunal’s purview to establish and control its own process and procedures as set out in the SPPA. Rules are to be liberally construed: SPPA, s. 2. Other tribunals have exercised this power to order parties not to distribute materials. However, in the past such orders have only involved the parties to the dispute.
[103] In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, 3 S.C.R. 77, the court states that the common law doctrine of abuse of process is flexible to ensure that the administration of justice and its integrity is not brought into disrepute. The Tribunal was not reaching beyond the matter at hand, as their order bound the parties, their counsel and the witness/affidavit, and the Tribunal was well placed to determine whether the parties and law firm had confidential information and its impact.
[104] The Tribunal has an obligation to establish and protect the record. It has the jurisdiction to direct the parties, their representatives and those involved in the case, i.e. witnesses and affiants to not disseminate materials that the Tribunal found to be privileged which had not been waived by the Tribunal. For that reason, the sealed documents in this court will remain sealed permanently.
[105] The Tribunal ordered the parties, their representatives and the witnesses and affiants in this case to not distribute the offending documents. Such an order does not constitute an order in rem.
[106] The Tribunal has the right to control its own process and record.
[107] The Tribunal can order destruction of materials. However, I note in passing that the more prudent process in many cases would be to seal the documents pending completion of any judicial review procedure or appeal which is what was done before the Divisional Court immediately following the Tribunal’s decision.
[108] Alternatively, the Tribunal may preserve the originals for the purposes of appellate review. The Tribunal can order that all copies be destroyed or turned over to the Tribunal. Such a 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.
[109] As stated above, the sealed documents will remain sealed. . 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. . Grus v. Renwick and Chief of Police, Ottawa Police Service
In Grus v. Renwick and Chief of Police, Ottawa Police Service (Div Court, 2023) the Divisional Court (single judge) made observations on the contents of a JR record, here where a police discipline hearings officer requested and was supplied with the original, unredacted 'duty book' (which contains police officer's notes) for review:[20] The essence of this Judicial Review Application turns on an interlocutory ruling in respect of disclosure. At its highest, the Applicant frames it as a breach of natural justice because she was not allowed to inspect her original duty book containing the notes of January 30, 2022. No authority was presented to suggest that such a right exists or that it forms part of natural justice.
[21] Disclosure of photocopies of police officer duty book notes forms part of virtually all criminal proceedings. It forms part of first-party disclosure. There has been no suggestion that this form of disclosure is accompanied by a right to inspect the physical duty book from where the photocopied notes originate. There are obvious public policy reasons which support that photocopies of a duty book are sufficient. A right to inspect the physical duty books from where notes originate to all persons entitled to disclosure would obviously add unreasonable time and expense to the disclosure process. It would also increase the risk that information pertaining to unrelated proceedings could be disclosed to third parties. I acknowledge that this leaves a possibility for clerical errors, misinterpretation of the relevance of some notes or even malfeasance.
[22] In the present case, the distinction is made to a police officer’s own duty book. I see very little distinction. The other matters referenced in the duty book are no longer part of that officer’s functions. Furthermore, there is no evidentiary basis laid by the Applicant whereby she was absolutely certain that she took notes and that they would be found in her duty book. To the contrary, the Applicant testified that she doubts that she took notes at certain times and that she thought that there could possibly be a phone number found for a call she made on January 30, 2022. However, there is little certainty attached to that possibility. Furthermore, her counsel advances the possibility that the duty book was “white copied” so as to hide the notes taken by the officer and disclose blank pages. Such a theory finds no foundation in the evidence.
[23] I am unable to find a basis in law and I was directed to no authority supporting the argument that this would warrant that an officer be entitled to a physical inspection of her duty book. However, I am not the decision maker in the process, and it is not for me to substitute my view for that of the hearing officer. In the normal course, reliance is made on the disclosure process. However, in this case, the hearing officer went one step further and physically inspected the unredacted notes, a step in my view that may not have been necessary based on the evidence before him. He confirmed that the January 30, 2022 notes had no reference to any matters before the hearing officer. There was no evidentiary basis for the possibility that the hearing officer may not understand the notes or that abbreviations may be used that would be unknown to the hearing officer. To the contrary, nothing is suggested other than the possibility of malfeasance without an evidentiary foundation.
[24] It should be noted that the unredacted version of the duty book notes was considered by the hearing officer and it does not seem that it was retained as part of the record. It should have been, and it should likely be included as a sealed lettered exhibit which is not part of the evidence but at least part of the proceeding and available to a reviewing body.
[25] Ultimately, the Applicant may be correct that the law should allow her to inspect her own duty book. However, such a finding must follow the proper process for the review of administrative tribunal decisions. Under the PSA, there is an established path to appeal the decision of a hearing officer to the Commission. There is then a limited right of appeal to the Divisional Court. The Applicant will have the opportunity to advance her grounds of appeal and challenge all of the interlocutory decisions made by the hearing officer as part of the statutory right of appeal.
[26] My view of the right of the Applicant to inspect her own duty book is not determinative of the issue. It is solely relevant to the issue before me and that is if the context gives rise to exceptional circumstances to warrant judicial review of an interlocutory decision. . Stenka v. Garten
In Stenka v. Garten (Div Court, 2023) the Divisional Court addressed the record (here, a transcript) required to consider an RTA reconsideration:[30] I pause to note that on review, the Member was faced with an especially difficult task because there was no transcript of the first hearing. It would have been challenging, if not impossible, to determine what evidence was before the first Member. However, this makes it more difficult to understand on what basis the Member found a serious error in the Initial Decision. The Member found that the Initial Decision “does not address the circumstances behind the Tenant’s act of vacating the rental unit, or of the Landlords’ contract to renovate the rental unit” without making any reference to the evidence that was before the first Member. . Patel v. The Law Society of Ontario
In Patel v. The Law Society of Ontario (Div Court, 2022) the Divisional Court considered whether decisions of the Intake and Resolution Counsel (I&R Counsel) of the Law Society constituted 'statutory powers of decision', this in order to determine whether JRPA s.10 ['Record to be filed in court'] thus applied to require the LSO to file their decision-making record in a JR application. The court held that the I&R Counsel's involvement was investigative (as per LSA 49.3 "Investigations - Conduct"), and the dismissal of an investigate proceeding did not constitute the "exercise of a statutory power of decision" as it effected no rights [JRPA 1]:[5] Section 10 of the JRPA requires that a record of proceedings be filed with the court “when notice of application for judicial review of a decision made in the exercise of a statutory power of decision is served on the person making the decision.” A statutory power of decision is defined as a power or right conferred by or under a statute to make a decision deciding or prescribing:1. The legal rights powers, privileges, immunities, duties or liabilities of any person or party, or
2. The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not. [6] Under the Law Society Act, the LSO has the discretion to decide whether to investigate a complaint. Subsection 49.3(1) of the Act provides that the LSO “may” investigate when it receives information suggesting that licensee may have engaged in professional misconduct or conduct unbecoming.
[7] Where there is a discretion to investigate, courts have held that the decision to dismiss a complaint is not the exercise of a statutory power of decision: Batacharya v. College of Midwives of Ontario, 2012, ONSC 1072 (Div. Ct.); Harrison v. Association of Professional Engineers of Ontario, 2014 ONSC 6549 (Sup. Ct.), at paras. 17-18. The language of the Law Society Act is similar to the language in the provisions at issue in those cases under the Health Professions Procedural Code and the Professional Engineers Act respectively. This differs from the circumstances in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, where the complainant had a right under the Police Services Act to have her complaint proceed. In that case, the decision to screen out the complaint was found to be an exercise of a statutory power of decision and a record of proceedings was required. Unlike the Police Services Act, the Law Society Act does not require that every complaint be pursued, rather, it gives the LSO discretion to determine whether to investigate a complaint.
[8] In the absence of the exercise of a statutory power of decision, the court does not have inherent jurisdiction to order production of a record of proceedings: Harrison, at paras. 27-37.
[9] In my view, for the purposes of the motion, the decision of I&R Counsel did not affect the Applicant’s legal right. Therefore, the decision of I&R Counsel to close his complaints was not the exercise of a statutory power of decision. As a result, s. 10 of the JRPA does not apply, and the LSO does not have a duty to file a record of proceedings.
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