Court File and Parties
DIVISIONAL COURT FILE NO.: 546/23
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: LUCIA DERENZIS, Applicant
AND: GORE MUTUAL INSURANCE COMPANY, Respondent
BEFORE: Matheson J.
COUNSEL: Valerie Crystal and Douglas Lee, for the Licence Appeal Tribunal, Moving Party Joseph Campisi, for the Applicant Joseph Colangelo, for the Non-party Karina Kowal
HEARD at Toronto: In writing,
Endorsement
[1]
Introduction
The Licence Appeal Tribunal (LAT) moves for an order sealing part of the record of proceedings in the underlying application for judicial review and seeks an order preventing further dissemination of the documents at issue pending the determination of the application for judicial review.
[2]
Background
This motion arises in the context of two statutory accident benefits matters before the LAT regarding Lucia Derenzis. In the LAT reconsideration of those two matters, the applicant filed an affidavit from a former LAT member. The applicant now seeks judicial review of certain orders made regarding that evidence. Specifically, the applicant seeks to quash orders made in the decisions of the Licence Appeal Tribunal (“LAT”) dated September 11, 2023 and September 18, 2023, both dated as released on September 20, 2023 (together, the Decision). Broader proceedings were initially commenced and some aspects were dismissed under r. 2.1 of the Rules of Civil Procedure.
3As set out in the Decision, the Adjudicator found that certain materials that had been put forward by that affiant were covered by the LAT’s solicitor-client privilege and by deliberative secrecy. In turn, the Adjudicator made certain orders about the use, distribution, dissemination and destruction of the specific documents covered by those privileges. The orders that are the subject of this application for judicial review prohibit dissemination, require destruction and require confirmation of compliance. Those orders extend to the affiant who put forward the documents, the former LAT adjudicator, who is participating in this motion as a non-party.
[4]
Positions of the Parties
The LAT seeks sealing and non-dissemination orders because, otherwise, the confidentiality that comes with solicitor-client privilege and deliberative secrecy will be lost before the application is even heard. The LAT relies on the leading case, Sherman Estate v. Donovan, 2021 SCC 25, at para. 38, providing the necessary criteria for a sealing order.
5The applicant contests this motion and focuses on the merits of the application for judicial review and the issues the applicant wishes to raise before the LAT based on the contested evidence. The applicant submits that solicitor-client privilege may be an important public interest but is not grounded in the evidence and is not available in some settings. The applicant disputes the findings of privilege and secrecy. The applicant also submits that the evidence at issue could be further redacted.
6The affiant submits that the public should not be denied access to the contested evidence. She disputes the orders made in the Decision, submitting that they were made without notice to her. However, she has not brought a challenge to Decision as it applies to her.
7The affiant further submits that the privileges are not absolute and do not override the public interest in an open court system. The affiant puts forward submissions about the merits of the Decision and the application for judicial review. Many of the submissions are predicated on the Decision being wrong. That remains to be decided in future proceedings. In that regard, I note that the LAT proceedings are also ongoing and other aspects of the Decision may well be at issue once those proceedings are final.
8The affiant also relies on the role of the LAT as a decision-maker. I have taken that into account along with the other submissions but note that even a decision-maker may have solicitor-client privilege and it is a decision-maker who may have deliberative secrecy.
9A factum has also been submitted by Peter Murray, a lawyer within the law firm that acts for the applicant. It is not clear why Mr. Murray took this step. If he is attempting to assert a personal interest separate from being a lawyer at the applicant’s law firm, he must take express steps in that regard and address any issues that may arise at a result. In any event, the submissions mainly support the applicant’s position and do not change the outcome of the motion.
[10]
Analysis
I conclude that the criteria in Sherman Estate are met. The privilege/secrecy that has been established in the documents at issue is recognized at law as an important public interest and is protected by confidentiality. To open them to the public before the ongoing proceedings have been decided would irreparably compromise that privilege/secrecy. I am not persuaded that an attempt at more fine-tuned redactions is a reasonable alternative. The order will be limited to the documents at issue and permit counsel access as needed to fully argue the application for judicial review. The sealing order is needed to preserve the ability of the court to do justice in this case.
11The LAT also seeks the continuation of an order I made in my directions of October 19, 2024. I suspended the order in the Decision that required destruction of the documents, instead requiring that they be sealed and held by counsel and not distributed in any way pending further order of the Court. These were court orders, as set out in Part I, Section G, para. 32, of the Consolidated Practice Direction for Divisional Court Proceedings, given at that time. They were not challenged and the time to do so has passed. On their terms, they continue – another order is not needed for that purpose. If the LAT wishes those orders in the form of a formal order it may submit a form of order as of that date after obtaining the position of the parties as to the form and content.
[12]
Disposition
The motion regarding the sealing order is granted. The moving party shall submit a draft order after obtaining the position of the parties as to form and content. The relief sought regarding a continuation of my prior order is not necessary. No costs are sought or granted on this motion.
Matheson J.
Date: February 29, 2024