Derenzis v. Gore Mutual Insurance Co., 2025 ONSC 2732

CITATION: Derenzis v. Gore Mutual Insurance Co., 2025 ONSC 2732

DIVISIONAL COURT FILE NO.: 546/23, 109/24 and 114/24

DATE: 20250506

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. Corbett, Lococo and Doyle JJ.

BETWEEN:

lucia derenzis

Ashu Ismail and Joseph Campisi, for the

Applicant/Appellant

Applicant/Appellant

– and –

Gore mutual INSURANCE

Arthur R. Camporese, for Gore Mutual

COMPANY and LICENCE aPPEAL

Insurance Company, Respondent

trIBUNAL

Morgana Kellythorne and Douglas Lee, for

Respondents

the Licence Appeal Tribunal, Respondent

– and –

attorney general of onTario

Michael J. Sims and Matthew Chung, for the

and ontario trial lawyers

Attorney General of Ontario, Intervenor

association

Barbara Legate and Robert Serendynski, for

Intervenors

the Ontario Trial Lawyers Association,

Intervenor

HEARD at Toronto: March 4, 2025, with additional written submissions to April 25, 2025

REASONS FOR DECISION

LOCOCO and DOYLE JJ.

I. Introduction

1Lucia Derenzis appeals and seeks judicial review of various decisions described below (the “Decisions”) of the respondent Licence Appeal Tribunal (the “Tribunal”). The Decisions arose from two applications Ms. Derenzis made to the Tribunal to resolve disputes about her claim for no-fault accident benefits from the respondent Gore Mutual Insurance Company (“Gore Mutual”), following a motor vehicle accident.

2In the “IRB Decision” dated June 27, 2023 [reported at 2023 74649 (ON LAT)], the Tribunal dismissed Ms. Derenzis’s claim for income replacement benefits that were suspended on the basis that she failed to attend required medical examinations. In the “Expenses Decision” dated June 27, 2023 [2023 58532 (ON LAT)], the Tribunal dismissed her claim for medical and rehabilitation expenses set out in treatment plans, finding that any delay in payment of benefits was caused by her failure to attend required examinations.

3The Tribunal also dismissed Ms. Derenzis’s requests for reconsideration of those decisions in the “IRB Reconsideration Decision” [2024 2662 (ON LAT)] and the “Expenses Reconsideration Decision” [2024 2670 (ON LAT)], each dated January 16, 2024.

4In her reply submissions with respect to the requests for reconsideration, Ms. Derenzis provided an affidavit sworn by a former Tribunal adjudicator that contained information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator. In interim decisions (the “Document Decisions”), the Tribunal found that portions of the reply submissions and the affidavit were protected by privilege and struck them from the reconsideration record. The Tribunal also ordered that the impugned documents be destroyed and not further disseminated. Upon reconsideration, the Tribunal struck from the reconsideration record additional portions of the reply submissions on the basis that they were not proper reply.

5Upon appeal and judicial review, Ms. Derenzis challenges the Decisions on various grounds. Among other things, she asks the court to set aside the Decisions and order Gore Mutual to pay withheld benefits to her.

6For the reasons below, we would dismiss the appeal and the judicial review application.

II. Background

7On November 24, 2015, Ms. Derenzis was involved in a motor vehicle accident. She was a pedestrian when she was struck by a vehicle. On December 4, 2015, she made an application to Gore Mutual, her automobile insurer, for no-fault accident benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS” or “Schedule”) under the Insurance Act, R.S.O. 1990, c. I.8.

8In her initial application to Gore Mutual, Ms. Derenzis requested payment of income replacement benefits (“IRBs”) under s. 5 of the SABS. In applications submitted in April and August 2018, Ms. Derenzis also requested determination that she sustained a catastrophic (“CAT”) impairment as a result of the accident under s. 45 of the SABS: see IRB Decision, at para. 2.

9In addition, Ms. Derenzis sought medical and rehabilitation benefits under ss. 15-17 of the SABS, relating to expenses to be incurred pursuant to “treatment plans”, including for physiotherapy and occupational therapy. The policy limit for reimbursement of such expenses was $50,000 unless the insurer determined that the insured sustained a CAT impairment as a result of the accident: Expenses Decision, at para. 2.

10By letter dated January 8, 2016, Gore Mutual notified Ms. Derenzis that she qualified for IRBs in the maximum amount of $400 per week, effective December 1, 2015. Gore Mutual paid IRBs to Ms. Derenzis effective from that date. However, disputes arose between the parties relating to Gore Mutual’s requests that Ms. Derenzis attend insurers examinations (“IEs”), as provided in ss. 44 and 45 of the SABS. Those disputes led to suspension of IRB payments to Ms. Derenzis, as described below.

11Section 44 of the SABS provides in part:

Examination required by insurer

44. (1) For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination;

(b) whether the attendance of the insured person is required at the examination;

(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and

(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

12As well, if the insured is seeking a determination of CAT impairment, the insurer is required by s. 45(3) of the SABS to notify the insured if the insurer requires an examination under s. 44 relating to whether the impairment is a CAT impairment.

13As indicated in the IRB Decision, at para. 58, Gore Mutual alleged that commencing in 2017, it attempted to set up a number of IEs to determine if Ms. Derenzis continued to be entitled to IRBs. Gore Mutual also alleged that from 2018 to 2021, it attempted to set up IEs to determine whether Ms. Derenzis sustained a CAT impairment. The requested IEs consisted of assessments by various health professionals that Gore Mutual scheduled through outside assessment companies. Until at least May 2021, Ms. Derenzis did not attend for requested IEs, alleging that the notices that Derenzis provided did not comply with s. 44 of the SABS, including because the IEs were scheduled through assessment companies rather than directly with regulated health professionals: see IRB Decision, at paras. 3, 59, 61-65, 71, 88-94.

14For example, by letter dated March 13, 2017, Gore Mutual advised Ms. Derenzis that it had arranged appointments through an assessment company with four health professionals to assist in determining her further entitlement to IRBs and medical/rehabilitation benefits. Ms. Derenzis did not attend those examinations: see IRB Decision, at paras. 63-64. In addition, in June and September 2018, Gore Mutual provided Ms. Derenzis with further notices of IEs, some of which Gore Mutual canceled and others rescheduled with new notices dated September 24, 2018. Ms. Derenzis did not attend the rescheduled assessments: IRB Decision, at para. 66-68.

15As of October 8, 2018, Gore Mutual suspended payment of IRBs to Ms. Derenzis on the basis that she failed to attend IEs without reasonable excuse when required to do so under s. 44 of the SABS. By Explanation of Benefits dated October 12, 2021, Gore Mutual reinstated payment of IRBs to Ms. Derenzis effective May 31, 2021, based on Ms. Derenzis’s attendance for a requested IE. Following her attendance for further IEs, Gore Mutual also accepted that Ms. Derenzis sustained a catastrophic impairment as a result of the accident: see IRB Decision, at para. 3.

III. Proceedings before the Tribunal

A. Tribunal applications

16In December 2018, Ms. Derenzis made an application to the Tribunal under s. 280 of the Insurance Act (the “IRB Proceeding”) to resolve the parties’ dispute relating to her entitlement to IRBs and her claim that she sustained a CAT impairment. Under s. 280, the Tribunal has exclusive jurisdiction “with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”: see Insurance Act, ss. 280(1), 280(3).

17In January 2021, Ms. Derenzis made a further application to the Tribunal (the “Expenses Proceeding”) to resolve the parties’ dispute relating to her claim for medical and rehabilitation expenses pursuant to proposed treatment plans. At issue in that application was Ms. Derenzis’s entitlement to reimbursement of those expenses beyond the “non-catastrophic impairment policy limits of $50,000”: Expenses Decision, at para. 2. Under s. 3(8) of the SABS, if the Tribunal finds that such an expense “was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense,” the Tribunal may “deem the expense to have been incurred.”

18In both applications, Ms. Derenzis also sought an additional lump sum award (“Reg. 664 award”) under s. 10 of R.R.O. 1990, Reg. 664: Automobile Insurance under the Insurance Act. Section 10 of Reg. 664 provides:

10. If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

19The IRB Proceeding and the Expenses Proceeding advanced to separate hearings by videoconference before the same adjudicator, D. Neilson, in June 2022 (for the Expenses Proceeding) and January 2023 (for the IRB Proceeding). By that time, the matters in issue had narrowed, since Gore Mutual had accepted that Ms. Derenzis sustained a CAT impairment and it was no longer disputing the proposed treatment plans under which medical and rehabilitation expenses would be incurred: IRB Decision, at para. 2; Expenses Application, at para. 2. Since the evidence and issues in each application were essentially the same, the parties agreed that the evidence in both hearings would be applicable to both applications. As well, the Tribunal stayed the decision in the Expenses Application pending release of the IRB Decision: see IRB Decision, at para. 5; Expenses Decision, at para. 4.

20For the IRB Proceeding, the primary issue before the Tribunal was whether Ms. Derenzis was entitled to an IRB of $400 per week from October 8, 2018 to May 30, 2021, being the period in which Gore Mutual had suspended payment of IRBs based on Ms. Derenzis’s alleged failure to attend for required IEs: see IRB Decision, at para. 6(1).

21For the Expenses Proceeding, the primary issue was whether the Tribunal should deem Ms. Derenzis to have incurred the medical and rehabilitation expenses set out in the treatment plans based on Gore Mutual’s unreasonable delay in determining that she sustained a catastrophic impairment and in accepting the treatment plans: see Expenses Decision, at paras. 3, 6(1); SABS, s. 3(8).

22Also in issue in both applications was whether Ms. Derenzis was entitled to (i) a Reg. 664 award because it unreasonably withheld or delayed benefit payments, and (ii) interest on any overdue benefit payments.

B. Initial Tribunal decisions

23On June 27, 2023, the Tribunal issued the IRB Decision and the Expenses Decision (the “Initial Decisions”), dismissing both applications in their entirety.

24In the IRB Decision, the Tribunal found that Ms. Derenzis failed to attend IEs without reasonable excuse contrary to s. 44 of the SABS. The Tribunal also found that Gore Mutual did not unreasonably withhold or delay payment of IRBs from October 8, 2018 to May 30, 2021. As a result, her claim for IRBs for that period was dismissed, together with her claims for a Reg. 664 award and interest.

25At para. 53, the Tribunal framed the issue before it in the IRB Proceeding as follows:

The issue of whether the respondent unreasonably withheld or delayed payment of IRBs from 2018 to 2021 is dependant [sic] upon why it took 4 years for the IEs to be completed. The respondent submits that it is because the applicant failed to attend IEs properly scheduled during that period of time without a reasonable excuse. The applicant submitted it is because the respondent did not properly schedule the IEs or notify her of them.

26At para. 60, the Tribunal stated that to determine whether Ms. Derenzis was entitled to IRBs for the disputed period, it must determine (among other things), (i) whether Gore Mutual provided proper notice of the IEs, (ii) whether Gore Mutual requested more IEs than were reasonably required, and (iii) whether Gore Mutual was prohibited from using assessment companies to schedule IEs.

27At para. 61, the Tribunal summarized its findings on the enumerated issues, which were explained in greater detail in the balance of its reasons. Among other things, the Tribunal found that “some of the IE notices complied with the Schedule and, therefore, on a cumulative basis the applicant was provided with proper notice under the Schedule for the medical and other reasons why the respondent asked for the IE assessments.” The Tribunal also found that “the assessments [Gore Mutual] sought were reasonably required” and that Gore Mutual “was entitled to use an assessment company to schedule the IEs”: IRB Decision, at para. 61.

28In further explaining its finding that Gore Mutual provided adequate notice of the IEs, the Tribunal considered in detail Gore Mutual’s IE notice set out in its letter dated March 13, 2017, which included “a number of enclosed forms titled ‘examination notice’ listing the name and specialty of each assessor, the address, date and time of the assessment, the contact information and the reasons for the assessment.” The Tribunal found that the notice “complied with the notice requirements to provide medical reasons for why the respondent wanted to assess the applicant’s entitlement to IRBs and gave the applicant enough information to make an informed decision on whether or not to attend the IEs”: IRB Decision, at para. 63. As well, when considering the adequacy of later IE notices, the Tribunal found that the information contained in those notices, together with the medical and other information contained the March 13, 2017 notice, provided Ms. Derenzis with enough information to determine whether to comply with the notices: IRB Decision, at paras. 65-66.

29Similarly, in the Expenses Decision, the Tribunal found that Gore Mutual did not unreasonably withhold or delay payment of medical and rehabilitation expenses under the treatment plans. In doing so, the Tribunal rejected Ms. Derenzis’s submission that Gore Mutual unreasonably delayed in determining that Ms. Derenzis sustained a catastrophic impairment and in accepting the treatment plans. The Tribunal found that any delay was caused by Ms. Derenzis’s failure to attend IEs without reasonable excuse and rejected the submission that the number and type of examinations were excessive. As a result, the Tribunal found there was no basis for deeming Ms. Derenzis to have incurred those expenses. The Tribunal also dismissed her claims for a Reg. 664 award and interest.

C. Additional issues arising upon reconsideration

30On July 18, 2023, Ms. Derenzis filed with the Tribunal requests for reconsideration of the Initial Decisions.

31Upon reconsideration, Ms. Derenzis sought to introduce fresh evidence that included documents produced to her counsel after the hearing by an assessment company that Gore Mutual used to book IEs for her. Ms. Derenzis alleged errors of law and fact by the Tribunal in its analysis relating to IE notices under s. 44 of the SABS. She also alleged that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. Her submissions included statements to the effect that it was “more likely than not that an unbiased adjudicator at a Tribunal lacking systemic bias would have appreciated and apprehended” such errors.

32In Responding Submissions dated August 18, 2023, Gore Mutual requested that the requests for reconsideration be dismissed. It opposed the introduction of fresh evidence and responded to Ms. Derenzis’s submissions relating to alleged errors of law and fact and breaches of procedural fairness. Gore Mutual also submitted that Ms. Derenzis had not established a factual foundation for a reasonable apprehension of bias.

33In her reply submissions dated August 25, 2023, under the heading “Reasonable Apprehension of Bias”, Ms. Derenzis alleged (among other things) that the Tribunal had internal processes that singled out for special scrutiny matters before the Tribunal that involved her counsel’s law firm. In support of her submissions, Ms. Derenzis sought to introduce an affidavit sworn the previous day by a former Tribunal adjudicator, who was later employed by the law firm of Ms. Derenzis’s counsel. The exhibits to that affidavit included information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator.

34On August 31, 2023, Vice-Chair McGee of the Tribunal ordered submissions from the parties on whether the former adjudicator’s affidavit and attached exhibits should be struck from the record on the basis that they were protected by solicitor-client privilege and adjudicative privilege (deliberative secrecy). The Tribunal also ordered the parties not to further distribute or disseminate the documents pending determination of the issue.

35In decisions dated September 11, 2023 and September 18, 2023, both released on September 20, 2023 (the “Document Decisions”), Vice-Chair McGee on behalf of the Tribunal found certain paragraphs of and exhibits to the affidavit to be privileged. The Tribunal struck that material from the record and ordered the preparation of redacted reply submissions for use by the reconsideration adjudicator. In doing so, the Tribunal refused Ms. Derenzis’s request that Vice-Chair McGee recuse herself. The Tribunal also ordered that all copies of the impugned materials be destroyed and not further disseminated in any form. The Tribunal also deferred to the reconsideration adjudicator the issue of whether Ms. Derenzis made improper use of reply submissions by introducing argument and evidence not raised in her initial submissions.

36In subsequent Divisional Court decisions, the requirement in the Document Decisions for the destruction of documents was suspended. The documents were instead ordered to be sealed and held by counsel and not distributed in any way pending further court order (the “Sealing Order”): see Derenzis v. Gore Mutual Insurance Co., 2024 ONSC 1226 (Div. Ct.), at para. 11.

D. Reconsideration decisions

37On January 16, 2024, Vice Chair Logan of the Tribunal released the IRB Reconsideration Decision and the Expenses Reconsideration Decision (the “Reconsideration Decisions”).

38In the Reconsideration Decisions, the Tribunal granted Gore Mutual’s motion to strike as improper reply portions of the redacted reply submissions and supporting material relating to Ms. Derenzis’s allegations of reasonable apprehension of bias, including the balance of the former adjudicator’s affidavit and attached exhibits. The Tribunal found that although Ms. Derenzis referred to “an ‘unbiased adjudicator’ in her [initial reconsideration] submissions, [she] did not argue bias as a ground for reconsideration until her reply”: IRB Reconsideration Decision, at para. 15; Expenses Reconsideration Decision, at para. 14.

39On the remaining evidence and submissions, the Tribunal dismissed the requests for reconsideration. Among other things, the Tribunal rejected Ms. Derenzis’s submission that it erred in its analysis relating to the IE notices. The Tribunal also found that Ms. Derenzis had not satisfied the test for a reasonable apprehension of bias.

IV. Divisional Court jurisdiction and standard of review

40Ms. Derenzis appeals the Initial Decisions and the Reconsideration Decisions. She also seeks judicial review of the Document Decisions to the extent that they order document destruction and non-dissemination. Gore Mutual opposes the appeal and the judicial review application. The Attorney General of Ontario (the “Attorney General”) and the Ontario Trial Lawyers Association (the “OTLA”) are intervenors in these proceedings.

41The Divisional Court has jurisdiction to hear an appeal from a Tribunal decision under the SABS, but only on a question of law: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, ss. 11(1), 11(6) (the “LATA”).

42Despite any right of appeal, the Divisional Court has jurisdiction to hear Ms. Derenzis’s judicial review application: Judicial Review Procedure Act, R.S.O. 1990, c. J.1 , ss. 2, 6(1). Judicial review is a discretionary and extraordinary remedy, but the existence of a right of appeal limited to questions of law does not in itself amount to a discretionary bar nor preclude a judicial review application for questions of fact or mixed fact and law: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 57.

43When a party brings both an appeal and a judicial review application from the same decisions, the Divisional Court’s practice is for both proceedings to be heard and decided by the same panel: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 25 C.C.C.L. (6th) 1, at paras. 55-56, rev’d. on other grounds, 2024 SCC 8; Shearer v. Oz, 2024 ONSC 1723 (Div. Ct.), at para. 30.

44On the appeal, the standard of review is correctness for questions of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8; see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is an extricable legal principle, which is reviewable on a correctness standard: Housen, at paras. 26-37.

45Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30, 129, 169, 179. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; see also Vavilov, at para. 77.

46With respect to the application for judicial review, this court will not entertain the application or grant a remedy to the extent that the substance of the application is adequately addressed by another process, that “other process” in this case being the appeal: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 40-45. Therefore, the only issues that this court will entertain for judicial review are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion: see Shearer, at para. 32. Upon judicial review, the presumptive standard of review is reasonableness: Vavilov, at paras. 23-25. There is no dispute that the standard of review for those matters is reasonableness in this case.

47Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, at para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at paras. 31, 92-93.

48The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100.

V. Issues for determination

49In the appeal, Ms. Derenzis submits that the Initial Decisions and the Reconsideration Decisions were wrong in law and marred by apparent institutional bias. She asks the court to set aside those decisions and order Gore Mutual to pay withheld benefits to her. She also requests that the question of whether she should receive a Reg. 664 award and interest be remitted to the Tribunal for determination. While her submissions focus on the Tribunal decisions in the IRB Proceeding, Ms. Derenzis submits that the same errors permeate the decisions in the Expenses Proceeding, with the result that the latter decisions should be vitiated as well.

50Ms. Derenzis says that the Tribunal made errors of law in determining whether Gore Mutual’s IE notices complied with its obligations under s. 44 of the SABS. Among other things, she argues that the Tribunal erred in considering the notices’ cumulative effect when determining whether they were sufficient to meet the requirements of s. 44. She also submits that the Tribunal erred in law and breached procedural fairness in the Reconsideration Decision by striking as improper reply those parts of her reply submissions and evidence that were not ordered struck and destroyed in the Documents Decisions.

51In the judicial review application, Ms. Derenzis seeks to set aside the Documents Decisions to the extent they require the destruction and non-dissemination of documents she submitted as evidence of institutional bias. She challenges the Tribunal’s jurisdiction to make the destruction and non-dissemination orders. She also submits that the orders were unreasonable, including because in making the orders the Tribunal misapprehended the scope of solicitor-client privilege and adjudicative privilege (deliberative secrecy). She asks the court to set aside the document destruction and non-dissemination orders and lift the Sealing Order.

52The issues to be determined are:

a. Adequacy of IE notices: Did the Tribunal err in law in determining that Gore Mutual’s IE notices complied with s. 44 of the SABS?

b. Improper reply: Did the Tribunal err in law or breach procedural fairness in the Reconsideration Decisions by striking as improper reply those parts of Ms. Derenzis’s reply submissions and evidence not previously ordered struck and destroyed?

c. Jurisdiction to order dissemination and/or destruction: Did the Tribunal exceed its jurisdiction in ordering the destruction and non-dissemination of documents tendered in reply upon reconsideration?

d. Solicitor-client privilege: Was the decision to order the destruction and non-dissemination of documents on the basis of solicitor-client privilege unreasonable?

e. Deliberative secrecy: Was the decision to order the destruction and non-dissemination of documents on the basis of deliberative secrecy unreasonable?

53As explained below, we have concluded that the Tribunal did not make any reversible errors. Therefore, the appeal and the judicial review application should be dismissed.

VI. Analysis

A. Adequacy of IE notices

54Ms. Derenzis submits that the Tribunal made errors of law in determining whether Gore Mutual’s IE notices complied with its obligations under s. 44 of the SABS.

55Given the “consumer protection purpose” of insurance legislation (and the SABS in particular), Ms. Derenzis argues that notices to the insured under insurance legislation are required to be in “straightforward and clear language, directed towards an unsophisticated person”: see Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, at paras. 11, 14. In Smith, at para. 13, the Supreme Court also questioned whether a “verbatim reproduction” of the applicable legislative provisions would constitute sufficient notice to the insured. Consistent with that concern, Ms. Derenzis argues that the contents of Gore Mutual’s IE notices (which in some cases included pages of verbatim SABS provisions before setting out reasons for the IE) ran afoul of the consumer protection purpose of the SABS.

56In M.B. v. Aviva Insurance Canada, 2017 87160 (Ont. LAT), at para. 26 (referred to in the IRB Decision, at para. 62), the Executive Chair Lamoureux of the Tribunal applied the consumer protection principle in interpreting s. 44(5)(a) of the SABS, which requires that the insurer’s IE notice explain the “medical and other reasons for the examination”:

In my view, an insurer satisfies its obligation to provide its “[medical] and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand … [but] should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal. [Emphasis added.]

57Ms. Derenzis notes that the M.B. decision has been cited in subsequent Tribunal decisions, including B.M. v Unica Insurance Inc., 2020 72512 (ON LAT), in which the Tribunal also stated, at para. 27:

An insured person should not be expected to piece together “medical or other reasons” for an examination from disparate notices and correspondence, or … to advise an insurer of deficiencies in those notices so they may be corrected. The duty to give reasoned notice rests with the insurer.

58Applying those principles, Ms. Derenzis submits that the Tribunal erred in considering the cumulative effect of various IE notices when determining whether they were sufficient to meet the requirements of s. 44 of the SABS.

59Ms. Derenzis says that the Tribunal’s repeated determinations in the IRB Decision that s. 44 notices were valid when considered along with prior notices constituted an extricable error of law, subject to appeal on a correctness standard. She also argues that when considering the validity of IE notices provided in September 2018 shortly before Gore Mutual suspended IRB payments, the Tribunal was wrong in law to consider the reasons provided in an IE notice provided a year and seven months earlier on March 13, 2017 in deciding that the later notices met the requirements of s. 44. Ms. Derenzis says that doing so was an afront to the consumer protection purpose of the SABS and a direct breach of the language and object of s. 44(5)(b). She also submits that the Tribunal’s error in the IRB Decision cannot be saved by its attempts on reconsideration to recharacterize the Tribunal’s findings by stating that the adjudicator considered the adequacy of each notice individually and found each to be compliant: see IRB Reconsideration Decision, at paras 36, 39.

60We do not agree that Ms. Derenzis has established an error of law relating to the application of s. 44 of the SABS in this case.

61Consistent with Gore Mutual’s submissions, the question of whether the IE notices it provided meet the requirements of s. 44 of the SABS is a question of mixed fact and law, involving the application of s. 44 to the facts. We see no extricable legal error in the Tribunal’s analysis.

62When the Tribunal is determining whether an IE notice complied with s. 44, we agree with Gore Mutual that the Tribunal would be precluded from taking into account the information that the insured and their counsel had previously received from the insurer in connection with previous IE notices. As the Tribunal stated in M.B., at para. 26, the insurer’s explanation of the medical and other reasons for the examination turns on the “unique facts at hand” in each case. In 17-004358 v Economical Mutual Insurance Company, 2018 112110 (ON LAT), at paras. 13-14, the Tribunal referred to the M.B. decision, including its reference to the “consumer protection goal” of the SABS. In Economical, at paras. 16-17, the Tribunal considered three of the insurers’ examination notices that the insured party challenged as insufficient. The Tribunal found that “sufficient notice was provided for all of the benefits in question”: Economical, at para. 15. In doing so, the Tribunal took into account related reports and forms that had been exchanged between the parties. From these documents, taken together, the Tribunal concluded that the insured had sufficient information to make an informed decision about attending the examinations.

63Similarly, in the IRB Decision, in determining that Gore Mutual’s IE notices met the requirements of s. 44, the Tribunal did not err in considering the course of conduct between the parties, including previous IE notices and other documents and information that Ms. Derenzis and her counsel received from Gore Mutual. We are not satisfied that Ms. Derenzis has established any basis for interfering with the Tribunal’s finding that the IE notices complied with s. 44. In any case, the Tribunal found on reconsideration that the adjudicator at first instance considered that adequacy of each IE notice and found each compliant. It was open to the Tribunal to reach that conclusion on the record before it. We see no basis to interfere.

B. Improper reply

64Ms. Derenzis submits that the Tribunal erred in law and breached procedural fairness in the Reconsideration Decision by striking as improper reply those parts of her reply submissions and evidence that were not ordered struck and destroyed in the Documents Decisions.

65As previously noted, in her reply submissions on reconsideration, Ms. Derenzis challenged the Initial Decisions on the basis of alleged institutional bias, relying on an affidavit of a former adjudicator that Ms. Derenzis sought to introduce as part of her reply submissions. In the Documents Decisions, the Tribunal ordered parts of her reply submissions and the affidavit struck from the record and destroyed. Those orders in the Documents Decisions are the subject of Ms. Derenzis’s judicial review application addressed later in these reasons.

66What Ms. Derenzis challenges on appeal are those parts of the reconsideration reply submissions and the former adjudicator’s affidavit that were not ordered struck or destroyed in the Documents Decisions. In the Reconsideration Decision, the Tribunal struck the balance of the reply submissions relating to the issue of institutional bias together with the rest of the affidavit from the reconsideration record on the basis that they were not proper reply. The Tribunal found that Ms. Derenzis did not raise the issue in her 276 pages of material in her initial reconsideration submissions and rejected her argument that the issue was raised in response to Gore Mutual’s responding submissions: IRB Reconsideration Decision, at paras. 15-16. The Tribunal also found, at para. 16, that Ms. Derenzis had the opportunity to raise the issue as grounds for reconsideration but did not do so. The Tribunal also found that her submission that she could not have made the arguments earlier was unsupported by the evidence.

67Ms. Derenzis challenges the Tribunal’s order striking the remaining reply submissions and evidence as wrong.

68We see no basis for interfering with the Tribunal’s order. As the Tribunal stated in the reconsideration context in E.M. and Aviva Insurance Company, 2020 12741 (ON LAT), at para. 20:

The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party's submissions which could not have been reasonably raised in initial submissions. Reply is not an opportunity for the party to raise issues that should have been raised in initial submissions or to reformulate their argument.

69Improper reply deprives the responding party of the opportunity to provide a more particularized response and to effectively participate in the reconsideration process. Rather than being unfair to Ms. Derenzis, the Tribunal’s striking of the improper reply submissions and evidence avoided unfairness to Gore Mutual that would have resulted from its admission.

70For the above reasons, the appeal is dismissed.

C. Jurisdiction to order dissemination and/or destruction

Parties’ positions

Ms. Derenzis’s position

71Ms. Derenzis also seeks to quash the Document Decisions that included non-dissemination and destruction orders made by the Tribunal on September 20, 2023.

72As stated above, as part of her reply submissions in her request for reconsideration, Ms. Derenzis filed the affidavit of Dr. Karina Kowal dated August 24, 2023 as evidence of institutional bias, arguing that there were additional processes within the Tribunal which stripped adjudicators of their adjudicative independence.

73Dr. Kowal, a licensed paralegal working with Ms. Derenzis's law firm, is a former adjudicator whose appointment ended on October 21, 2021.

74Dr. Kowal’s affidavit discussed the following matters:

a. The assignment of adjudicators;

b. Internal consultations among adjudicators on legal and policy matters involving adjudicative directions;

c. Legal advice provided by Tribunal counsel to the adjudicators;

d. Dr. Kowal’s notes and documents she obtained during her term which she attached as exhibits to her affidavit;

e. Information regarding mandatory instructions provided by the Tribunal’s legal counsel and Vice Chairs to adjudicators on decision making at case conferences, hearings, on all resumption and adjournment requests;

f. Decisions regarding production and log notes and decisions relating to interlocutory decisions;

g. At her performance reviews, it was noted that the deponent had the highest number of scheduled resumptions and adjournments;

h. In 2019, the Tribunal changed its policy so that reconsiderations would exclude interim orders, a reform which was designed to decrease the influx of appeal motions on case conference decisions;

i. In 2019, there was a policy change that reconsiderations would be heard by the same member who made the initial decision; and

j. In bulletins issued by the Motions Duty team, adjudicators were told, when handling motions with a party known to be “difficult” or “high conflict”, to deny their request or request that the parties submit a formal motion to the duty team with submissions.

75Ms. Derenzis seeks judicial review of the Document Decisions and submits that the Tribunal has no authority to make these orders as there is no specific statutory grant of authority. She argues that the Tribunal has the power to make confidentiality orders but not injunctive relief as it amounts to an order in rem prohibiting the dissemination of the information contained in the affidavit.

Gore Mutual’s position

76Gore Mutual submits that the Tribunal has the power to set its own procedure and practices and to make orders to prevent abuse of its procedures: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 23(1), 25.0.1 (the “SPPA”). It further argues that the allegation of bias is based on conjectures and suspicions and not applicable to this case.

Tribunal’s position

77The Tribunal submits that it has the jurisdiction to make injunction and destruction orders in accordance with the SPPA and that the powers granted are to be “liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits”: SPPA, s. 2.

78The Tribunal further cites s. 3(2) of the LATA, which grants Tribunal the powers necessary or expedient for carrying out its duties. It submits that this provision grants the Tribunal the powers to make destruction orders and non-dissemination orders as part of controlling its own processes. It argues that it did not exceed its jurisdiction when it ordered destruction of the evidence as only evidence that is admissible should be permitted to be heard in a hearing: SPPA, s. 15(2).

OTLA’s position

79The OTLA based their submissions on the public records and hence cannot comment on the characterization of the documents. It submits that the Tribunal does not have jurisdiction to order destruction of documents as such orders are not procedural. If there is an issue, the Tribunal should have sought relief at the Superior Court of Justice.

80The OTLA argues that the Tribunal cannot grant equitable remedies and does not have the power to bind non-parties as the destruction of documents are permanent mandatory injunctions. The power to make such orders is reserved to the Court of Appeal and the Superior Court of Justice.

Discussion

Legal Framework

81Section 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”.

82Section 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 14309 (ON CA), 75 O.R. (3d) 383 (C.A.), at para. 8.

83Turning 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”.

84The 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.

85Under 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.

86The 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.

87In 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.

88These confidentiality orders may be filed with the Superior Court and are enforceable: TARA, s. 5.

89Reference 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 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.

90In 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.

91The court relied on Botbyl v. Heartland Farm Mutual Inc., 2023 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.

92The 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.

93The 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.

94The 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….”

95After 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.

96Other tribunals have made orders to control their own process to prevent its abuse.

97In 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.

98In Ontario Public Service Employees Union (Fortin) v. Ontario, 2017 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.

99In JP v. Ontario (Health Insurance Plan), 2005 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

100Statutory tribunals are specialized tribunals dealing with specialized fields and discrete issues and have jurisdiction to control their own processes.

101The 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 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.

102It 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.

103In 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.

104The 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.

105The 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.

106The Tribunal has the right to control its own process and record.

107The 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.

108Alternatively, 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.

109As stated above, the sealed documents will remain sealed.

D. Solicitor-Client Privilege

Ms. Derenzis’s position

110Ms. Derenzis submits that the Tribunal’s order to destroy the evidence of institutional bias was unreasonable and was made without notice to the affected parties. She also argues that the Tribunal has the authority to make confidentiality orders but not injunctive relief orders. In any case, the Tribunal failed to articulate the test for a permanent mandatory injunction.

111With respect to the evidence alleged to be protected by solicitor-client privilege, Ms. Derenzis submits that evidence of the board’s internal procedures is not protected by solicitor-client privilege, as this privilege only protects confidential communications containing legal advice. Most of the documents were written by non-lawyers and had no indicia of legal advice and were not marked confidential.

112Exhibit C to the affidavit established additional requirements for contested adjournment decisions which was akin to policy and procedure implementation and was not legal advice.

113Pursuant to s. 27 of the SPPA, these policies and procedures should be publicly available.

114In addition, the test for injunctive relief in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, is three-fold:

a. Is there a serious issue to be tried?

b. Would the moving party otherwise suffer irreparable harm?

c. Does the balance of convenience favour granting the injunction?

115Here, a mandatory injunction was made without notice to the parties.

116The Tribunal did not articulate the test for a permanent mandatory injunction and why it did not utilize the statutory scheme regarding enforceable confidentiality orders.

Gore Mutual’s position

117Gore Mutual submits that the Tribunal’s order to destroy the evidence was a reasonable exercise of its authority. In addition, Ms. Derenzis failed to raise the issue of reasonable apprehension of bias in her initial reconsideration request and she only sought to raise this issue in reply submissions.

118Gore Mutual also submits this conduct constitutes a breach of procedural fairness as it was deprived of an opportunity to respond. It argues that it was reasonable for the Tribunal to strike portions of the affidavit as improper reply which is consistent with the Tribunal’s jurisdiction and authority.

119It submits that the solicitor client privilege covers all communications within the ordinary scope of the professional relationship between an administrative tribunal and its in-house counsel and that procedural fairness does not restrict the application of this privilege between the Tribunal and its in-house counsel. It submits the solicitor-client privilege covers legal and procedural advice.

Tribunal’s position

120The Tribunal submits that its decision to order destruction of the evidence was reasonable and it is owed considerable deference in light of its expertise, knowledge and discretion. It argues that it reasonably concluded that the evidence was covered by solicitor-client privilege and that it extends to all communications that fall within the usual and ordinary scope of the solicitor-client relationship.

121Ms. Derenzis sought to introduce a draft legal memorandum and advice by Tribunal counsel and the Tribunal reasonably concluded that they contained legal opinion and Exhibit C was on its face a legal memorandum.

122The Tribunal further submits that its rules must be made public but not its internal policies and procedures.

OTLA’s position

123The OTLA submits that solicitor-client privilege does not apply where:

a. Tribunal counsel goes beyond providing legal advice and procedural guidance, instead acting as a fact finder or decision maker: Super Save Disposal Inc. (Re), 2004 94399 (B.C. EST)

b. The communication is from a person who performs services incidental to legal advice, even where relevant to a legal problem: Quadrangle Group LLC v. Canada (Attorney General), 2023 ONSC 7125, 170 O.R. (3d) 700, at para. 51.

c. The documents are operational in nature or relate to the conduct of general business: Quadrangle, at para. 60.

124Further, the OTLA argues that the SPPA does not address whether the party may retain possession of a document covered by solicitor-client privilege.

Intervenor – Attorney General of Ontario’s Position

125The Attorney General of Ontario asks this court to find that deliberative secrecy is a class privilege that cannot be waived by individual adjudicators. He notes that recent decisions have recognized the settlement and litigation privileges as class privileges.

126The privilege should belong to the Tribunal as an institution and individual adjudicators cannot waive the privilege as it exists to enhance the administration of justice and covers administrative aspects of the decision-making process. The objective is not to protect an individual decision maker.

Discussion

127The Tribunal ordered the destruction and enjoined dissemination of the following portions of Dr. Kowal’s affidavit based on solicitor-client privilege:

a. Para. 6 regarding mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, interlocutory decisions and production requests, including production of log notes;

b. Para. 8 and Exhibit C: a memo from legal counsel setting out procedures to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal counsel; and

c. Para. 16 and Exhibit F: a bulletin authored by the Duty Team adjudicators and Vice Chairs on various topics.

128Solicitor-client privilege extends to communications where legal advice is sought or offered or where it is intended to be confidential and extends to government lawyers who provide policy advice and direction outside their legal responsibilities.

129As stated in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at paras. 19-21:

19 Solicitor-client privilege has been held to arise when in-house government lawyers provide legal advice to their client, a government agency: see R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, at para. 49. In Campbell, the appellant police officers sought access to the legal advice provided to the RCMP by the Department of Justice and on which the RCMP claimed to have placed good faith reliance. In identifying solicitor-client privilege as it applies to government lawyers, Binnie J. compared the function of public lawyers in government agencies with corporate in-house counsel. He explained that where government lawyers give legal advice to a “client department” that traditionally would engage solicitor-client privilege, and the privilege would apply. However, like corporate lawyers who also may give advice in an executive or non-legal capacity, where government lawyers give policy advice outside the realm of their legal responsibilities, such advice is not protected by the privilege.

20 Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Campbell, supra, at para. 50.

21 Where solicitor-client privilege is found, it applies to a broad range of communications between lawyer and client as outlined above. It will apply with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is “in-house” does not remove the privilege, or change its nature.

130As stated in Pritchard, the fact that it is in-house counsel conveying advice does not remove privilege. However, 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.

131The Tribunal is accorded considerable deference. Here, the adjudicator discussed the ambit of solicitor client communication with the framework of Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] 1 S.C.R. 860.

132The Tribunal found that internal policies with respect to granting an adjournment is part and parcel of the tribunal’s functioning. It is reasonable to find that documents and information relating to discussions with in-house counsel are covered by solicitor-client privilege. The solicitor-client privilege extended to (i) mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, production requests, including production of log notes and interlocutory decisions; (ii) 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; and (iii) a bulletin on various topics.

133The decision as a whole is transparent, intelligible and justified. The Tribunal’s finding that the sections of the affidavit were protected by solicitor-client privilege was a reasonable exercise of the Tribunal’s authority to control its own processes.

E. Deliberative Secrecy

Parties’ positions

Ms. Derenzis’sPosition

134Ms. Derenzis submits that the Tribunal incorrectly interpreted the law of deliberative secrecy and privilege and hence its decision is unreasonable.

135Deliberative secrecy grants the adjudicators the right to refuse to give evidence, but it does not prevent a member from voluntarily giving evidence: Tremblay v. Quebec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952. Its scope does not extend to administrative matters or policies and procedures set out in the affidavit filed. It does not protect the evidence, information or testimony related to the process.

136In addition, Ms. Derenzis argues that deliberative secrecy is not a class privilege, but one belonging to the adjudicators who are independent decision makers and, as whistleblowers, are protected under the Charter of Rights and Freedoms,¹ particularly s. 2(a), which guarantees freedom of conscience and s. 2(b), which protects freedom of expression: see Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56; International Woodworkers of America, Local 2-69 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282.

137Ms. Derenzis submits that, as in Shuttleworth v. Ontario (Safety Licensing Appeals and Standards Tribunals), 2019 ONCA 518, 146 O.R. (3d) 369, adjudicators should be entitled to speak up when their independence is compromised. Further, as stated in Tremblay, evidence, information or testimony related to the process under which decision making occurs is not protected by deliberative secrecy.

138Ms. Derenzis argues that the Tribunal in this case is attempting to stop from coming to light the control the executive of the Tribunal asserts over its decision makers.

Gore Mutual’s Position

139Gore Mutual submits that the Tribunal’s decision was reasonable, as Dr. Kowal’s affidavit disclosed the Tribunal’s internal procedures and administrative aspects of its decision-making process. Thus, the contents of the affidavit were subject to deliberative secrecy.

140In Grogan v. Ontario College of Teachers, 2023 ONSC 2980 (Div. Ct.), the applicant sought to compel production of an adjudicator’s notes on the strength of an affidavit from a retired tribunal member who had served on the panel in the proceeding. The affidavit was admitted as evidence but was found to be vague and speculative.

Tribunal’s Position

141The Tribunal submits that the decision below was reasonable. Deliberative secrecy covers the administrative aspects of the decision-making process, including assignment of adjudicators.

142The Tribunal argues that it reasonably rejected Ms. Derenzis’s argument that deliberative secrecy did not apply because Dr. Kowal was voluntarily offering her evidence. Dr. Kowal sought to introduce documents that involved consultations with other adjudicators. This should only be disclosed if there was a clearly articulated and reasonable basis to believe that natural justice was violated.

143Thus, the Tribunal argues that Exhibits A, B, D and E and certain portions of the affidavit discussed administrative aspects of the decision-making process and were protected by deliberative secrecy. Restricting the disclosure of such information is consistent with the objective of promoting adjudicative independence, collegial debate and finality of the Tribunal’s decisions.

OTLA’s position

144The OTLA argues that deliberative secrecy is not applicable here as the previous adjudicator was not involved in the case at bar. Also, deliberative secrecy is not absolute as it can be lifted where:

a. Decision making does not comply with the principles of natural justice;

b. The tribunal acted outside its jurisdiction or in bad faith; or

c. Where there is bias regarding a decision.

Attorney General of Ontario’s Position

145The Attorney General of Ontario submits that deliberative privilege is a class privilege and belongs to the Tribunal, not the adjudicator. Thus, it cannot be waived by individual adjudicators. The Tribunal, as owner of the documents, was within its rights to demand them returned. The offending documents should have been placed in a sealed envelope pending review.

146The Attorney General further submits that it was quite proper for the Tribunal, as the master of its own process, to deal with the admissibility of the documents and demand they be returned.

Discussion

Legal Framework

147In Tremblay, at p. 968, the Supreme Court held that administrative tribunals cannot rely on deliberative secrecy in the same manner as judicial tribunals. It can be lifted when a litigant believes that the process did not follow the rules of natural justice. In that case, the issues raised by the litigants did not deal with matters of substance or the “decision makers’ thinking”, but instead was directed at the formal process established to achieve consistency in its decisions. The matters dealt with the “institutional setting in which the decision was made and how it functioned, and second with its actual or apparent influence on the intellectual freedom of the decision makers”: at pp. 964-65.

148However, the Supreme Court was concerned that the consultation network could “impede the ability or freedom of the members of the tribunal to decide according to their consciences and opinions, or create an appearance of bias in the minds of litigants.” In that case, compulsory consultation created an appearance of a lack of independence, if not actual constraint, circumventing the will of the legislature, by seeking to establish a prior consensus among persons not responsible for deciding the case. In addition, “[t]here [were] other facts which support[ed] this conclusion of an apparent lack of independence”: at p. 975.

149In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, 282 D.L.R. (4th) 538, Cromwell J.A. (as he then was) discussed the Tremblay decision and confirmed that deliberative secrecy covers tribunals’ internal processes and means of assigning cases to adjudicators. In Tremblay, deliberative secrecy is related

not only to “matters of substance or the decision-makers’ thinking on such matters”, but also to matters relating to the “formal process established by the Commission to ensure consistency in its decisions.”… The party seeking to have the court lift deliberative secrecy with respect to the tribunal’s process of decision-making has a threshold to meet. As expressed by Gonthier, J. in Tremblay, the party must show that there are “valid reasons” for doing so. [Citations omitted.]

150In Grogan, the Divisional Court stated that:

16Deliberative secrecy prevents the disclosure of how and why decision-makers reached their decision. The Supreme Court has described deliberative secrecy as a “core component of the constitutional principle of judicial independence”: Commission scolaire de Laval v. Syndicat de l’enseignement de la region de Laval, 2016 SCC 8, at para. 57. The doctrine of deliberative secrecy promotes collegial debate and the finality of decisions. Under the doctrine, a judge cannot be compelled to testify about deliberations, the substance of the decision-making process, or how or why a particular decision was reached: Agnew v. Ontario Association of Architects (1987), 64 O.R. (2d) 8, 1987 4030 (Div. Ct.).

17Deliberative secrecy also applies to the decision-making process of an administrative tribunal. The principle protects against the production of notes created by adjudicators during the deliberation process. In 156621 Canada Ltd. v. Ottawa (City) (2004), 70 O.R. (3d) 201, 2004 66333 (S.C.), the applicant in a judicial review application of a decision of the Ontario Municipal Board brought a motion for production of an adjudicator’s notes. In dismissing the applicant’s motion on the basis of deliberative privilege, the court stated as follows (at para. 4(e)):

Deliberative privilege attaches to all matters which are at the heart of or integral to the decision-making process since the purpose of the privilege is to prevent the decision-making process from being penetrated. Notes made by a board member during a proceeding for the purpose of assisting the member to reach a decision and prepare reasons are integral to the decision-making process and are therefore protected by deliberative privilege, and are not compellable.

18However, secrecy “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”: Canada (Privacy Commissioner) v. Canada (Labour Relations Board, 1996 4084 (F.C.), aff’d on appeal, [2000] 180 F.T.R. 313, 2000 15487 (F.C.A.).

20In Payne v. Ontario Human Rights Commission, [2000] O.A.C. 357, 2000 5731 (C.A.), at para. 172, Sharpe J.A., for the majority, held that:

… it seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that, in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed. [Emphasis added in Grogan.]

21In Payne, Sharpe J.A. rejected the argument that the party seeking to examine establish a “reasonable evidential foundation” or that they had to provide “reasonable, reliable, relevant evidence” to meet a “high threshold.” Setting the onus too high would require an applicant to prove their case before being able to avail themselves of the Rules and would be “inimical to the inherent power of judicial review”: Payne, at para. 171.

22As noted above, deliberative secrecy may be lifted where “the litigant can present valid reasons for believing the process followed did not comply with the rules of natural justice”.

151In Shuttleworth, the court accepted evidence of institutional bias where the Executive Chair of the Tribunal interfered with an adjudicator’s decision. In that case, the adjudicator decided that the threshold of “catastrophic impairment” had not been met but later learned by an anonymous letter that before the decision was released, the Executive Chair had reviewed and reversed her determination. The applicant brought an application for judicial review of the adjudicator's decision. The Divisional Court found that:

a. The SLASTO Legal Services Unit generally sent decisions to the executive chair without assent or input from the adjudicator;

b. The adjudicator in this case did not request the review and was unaware of it until it had taken place;

c. There was no formal or written policy protecting the adjudicator's right to decline to participate in the review or to decline to make changes proposed by the executive chair;

d. A manual describing the tribunal's procedure made no reference to the voluntariness of peer review; and

e. The executive chair had power over the reappointment of adjudicators.

152The Divisional Court concluded that the circumstances gave rise to a reasonable apprehension of a lack of adjudicative independence and the decision was upheld by the Court of Appeal.

153In Bokhari v. Top Medical Transportation Services, 2025 ONSC 1208, Matheson J. was also dealing with an affidavit of a prior adjudicator that spoke of the adjudicators’ activities, the development of tribunal processes and case management, and development of standards. The court found that certain challenged portions of the affidavit were properly struck out as protected by deliberative secrecy.

154Matheson J. summarized the law in this area, and it is worth repeating here:

35Deliberative secrecy protects the decision-making process. It is a core component of judicial independence: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 57.

36Although the principle of deliberative secrecy does not apply as strongly to administrative tribunals as to courts, the Supreme Court of Canada has confirmed that deliberative secrecy is the general rule for administrative tribunals: Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), at para. 80; Grogan, at para. 16.

37Under “the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions”: Summit Energy, at para. 80.

38Deliberative secrecy “also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who have heard the case and the members who have not, within the rules set down in [Consolidated-Bathurst]. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency”: Ellis-Don Ltd. v. Ontario (Labour Relations Board) 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 53.

39Deliberative secrecy extends to internal communications and the administrative aspects of the decision-making process: Summit Energy, at para. 79; Chestacow v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCCA 389, at paras. 33-34. However, the of the administrative decision-making is not absolute and will yield where there is an evidentiary basis to allege that the right of natural justice has been infringed: Tremblay v. Québec (Commission des affaires sociales), 1992 1135 (SCC), [1992] 1 S.C.R. 952; Payne, at para. 168; Chestacow, at para. 34.

40The secrecy can be lifted if a litigant can show a “clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed… [I]n view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed”: Payne, at para. 172.

155Ultimately, the court in Bokhari found that the applicant had not met this threshold as the court found that there was no objectively sound argument that the applicant’s rights were infringed by the fact that there was a different internal policy that applied to his application that constrained the Adjudicator’s discretion: at para. 41.

156The court found at para. 42 that “[t]he applicant’s ‘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’: LifeLabs LP v. (Ontario) Information and Privacy Commissioner, 2022 ONSC 5751 (Div. Ct.), at para. 17.”

Conclusion

157The Tribunal ordered and enjoined from dissemination the following portions of Dr. Kowal’s affidavit based on deliberative secrecy:

a. Exhibit A: Team Meeting Minutes stating that vice chairs would triage and re-assign files related to Campisi. That is, Exhibit A to the affidavit dealing with minutes of a meeting with the Vice Chair triaging certain files including Campisi and certain types of claims to be handled by more experienced adjudicators is covered by deliberative secrecy. Also, minutes of meetings that deal with scheduling issues and adjournment requests and requiring to consult the vice chair or experienced adjudicator;

b. Para. 7: a directive to adjudicators requiring all adjournments to be approved by a Vice Chair before being granted;

c. Exhibit B: Team Meeting Minutes stating parties are to be put on hold while consulting a vice chair for adjournments, members’ reports are to place the name of the Vice Chair granting the adjournment in a “bubble comment” for the “peer”;

d. Para. 9 and Exhibit D: adjudicators were to always consult with a Vice Chair for an adjournment but are not to mention the consultation in their orders. That is, Exhibit D were follow up communications dealing with adjudicator meetings and discussion of adjournments which are discretional and the need to obtain submissions and give reasons and that if an adjournment that was previously denied it should be granted then should be discussed with a senior adjudicator. These types of orders are discretionary;

e. Paras. 10, 11: instruction of the Associate Chair and Vice Chairs that no more adjournments would be granted. Exhibit E: memo regarding discussions of reducing the number of adjournments granted and not allowing the parties to choose their own dates;

f. Para. 12: Dr. Kowal attests that she was admonished for not obtaining approval before granting adjournments (and resumptions);

g. Para. 16 and Exhibit F: Duty Bulletin advising of, in part, the removal of reconsideration of interlocutory decisions;

h. Para. 17: adjudicators are concerned with the inherent bias in reviewing their own decisions on reconsideration; and

i. Para. 18: a motions duty team was created to issue bulletins on how to decide motions, and where parties were known to be “high conflict” their request was either to be denied or put in writing.

158All parties and witnesses and counsel were ordered to destroy the documents. Counsel for the applicant were to confirm in writing that all documents were destroyed and not further disseminated and Ms. Kowal was to destroy the documents and confirm in writing.

159The Tribunal reasonably concluded that the documents which Dr. Kowal attached to her affidavit were the property of the Tribunal as they represented its internal memos or minutes and it held that they should be returned. It was reasonable for the Tribunal to find that the documents were covered by deliberative secrecy. In this case, the documents belonged to the Tribunal and it was for the Tribunal to waive deliberative secrecy, not Dr. Kowal.

160The documents attached and the paragraphs struck from Dr. Kowal’s affidavit discussed the Tribunal’s consultative process which entailed interaction between the adjudicators who have heard the case and the members who have not.

161The Tribunal reasonably concluded that deliberative secrecy extends to these internal communications and the administrative aspects of the decision-making process.

162In striking Exhibit 3C and 3F and paras. 6, 8, 16 and 17, Vice-Chair McGee found that these contained advice given by Tribunal counsel to adjudicators. This advice was within the solicitor-client privilege. The communication contained legal opinions relating to the interpretation of application of case law and the legal and practical recommendations for handling matters of law and policy.

163At para. 18 of the September 11 Documents Decision, the adjudicator stated:

The consultations documented in the materials involved numerous adjudicators at the Tribunal. The subject matter of those consultations included the decision-making process applicable to multiple Tribunal proceedings. To strip protection from such a consultative process in the absence of clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice would have a chilling effect on what the Supreme Court of Canada has characterized as a critically important means of achieving consistency within administrative tribunals: Ellis-Don at para. 53.

164The materials address the assignment of adjudicators, the handling of procedural and the legal complexities and administrative aspects of the decision-making process. They reference internal consultations among adjudicators on legal and policy matters which involve the exercise of adjudicative discretions including issuing procedural orders at case conferences, updates on rules of practice and procedure and interpretation of legislation and case law.

165The materials do not reference any specific case, nor do they show that the adjudicators were deprived of the discretion to decide cases independently. There were no directives as Ms. Kowal alleges. One of the documents explains that internal consultations give adjudicators opportunities to consider the reasons after submissions are obtained from the parties.

166At para. 23 of the September 11 Documents Decision, the Tribunal stated:

There is nothing improper or procedurally unfair about a consultative process internal to administrative tribunals where adjudicators who have heard a case interact with adjudicators who have not. Internal consultations are a critically important means of achieving consistency and predictability in administrative decision-making. Institutional consultations are permissible so long as (i) the question for discussion is one of policy rather than fact, (ii) that in the end the panel is free to make its own decision, and (iii) 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: Ellis-Don at para. 78, citing Consolidated Bathurst.

167The Tribunal referred to Grogan and Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753, 292 O.A.C. 268 (Div. Ct.), stating that the court can lift the veil of deliberative secrecy if the litigant can present valid reasons that the process did not comply with natural justice. At para. 17 of the September 11 Document Decision, the Tribunal stated: “‘However, the litigant must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed’ Grogan at para. 20. Speculation, conjecture, or simple allegation is not sufficient: LifeLabs LP, at para. 17.

168The Tribunal was given no objectively reasonable ground for lifting this deliberative secrecy. Ms. Derenzis argued that within the Tribunal there was a violation of natural justice as the implemented practices and directives undermined procedural fairness for clients of particular firms, including Campisi LLP, thereby compromising the independence of adjudicators and inserting bias and prejudice in the process. This is done by shutting down arguments at case conferences so that they cannot be appealed and cases are directed to specific adjudicators if involving the Campisi LLP firm.

169Vice-Chair McGee found at para. 22 that the applicant failed to establish an objectively reasonable concern that the Tribunal’s process failed to comply with the principles of natural justice or that there was improper fettering of adjudicative discretion or the violation of procedural fairness in any matter involving clients of Campisi LLP.

170An in rem proceeding adjudicates the rights to a particular piece of property for every potential rights holder, even potential rights holders who are not named in the lawsuit. For example, a plaintiff may bring an in rem action to conclusively determine ownership rights over a parcel of land.

171The document decisions were not orders binding the world, but rather narrowly restraining those involved in the case by directing them to destroy and not disseminate the material.

172During oral submissions, it was suggested that perhaps the parties would have to seek relief in the Superior Court or Divisional Court to deal with what should be done with this offending evidence. In our view, subordinate court proceedings are neither necessary nor efficient in respect to procedural issues that arise before the Tribunal.

173The decision of the Vice Chair was reasonable as she required only the parties and their representatives and any people involved in the matter such as witnesses and affiants to destroy and not further disseminate.

174Ms. Derenzis has failed to satisfy us that the decisions requiring the destruction and non-dissemination of the affidavit were unreasonable. We are satisified that the Document Decisions exhibit the requisite degree of justification, intelligibility and transparency.

175By order of this court, the documents were sealed pending further court order. We would extend this order until the appeal period for this decision has expired.

VII. Disposition

176The appeal and the application for judicial review are dismissed.

177Based on the parties’ agreements regarding costs, Ms. Derenzis shall pay, within 30 days, $3,000 costs to Gore Mutual and $7,500 costs to Tribunals Ontario, both figures inclusive. There shall be no costs for or against the Intervenors.

___________________________ Lococo J.

___________________________ Doyle J.

I agree: ___________________________ D.L. Corbett J.

Footnotes

1. 1Canadian Charter of Rights and Freedoms, 1982, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.