CITATION: Grogan v. Ontario College of Teachers, 2023 ONSC 2980

DIVISIONAL COURT FILE NO.: 73/16

DATE: 20230518

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Angela Grogan, Applicant

AND:

The Ontario College of Teachers, Respondent

BEFORE: Nishikawa J.

COUNSEL: Kirsty Niglas-Collins and Austen Metcalfe, for the Applicant

Shane D’Souza and Alexa Jarvis, for the Respondent

HEARD at Toronto: May 9, 2023 (by videoconference)

ENDORSEMENT

Overview

[1] After a lengthy hearing, in January 2016, the Respondent, the Ontario College of Teachers (the “College”), revoked the teaching certificate of the Applicant, Angela Grogan. The Applicant’s appeal to this court was dismissed on October 20, 2016: Grogan v. Ontario College of Teachers, 2016 ONSC 6545 (Div. Ct.) (the “Decision”). Ms. Grogan sought leave to appeal the Decision to the Court of Appeal, which was denied.

[2] In September 2022, the Applicant brought a motion under Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), to set aside this court’s decision on the basis of fresh evidence. The new evidence on which the Applicant seeks to have the Decision set aside is the affidavit of Monika Ferenczy. Ms. Ferenczy was one of the three adjudicators on the Discipline Committee of the College that heard the proceeding relating to the Applicant. However, Ms. Ferenczy resigned from the panel just before the end of the hearing and before a decision was made. The hearing proceeded in her absence and the panel rendered a merits decision on March 13, 2015. The penalty decision was made on October 23, 2015.

[3] In the context of her motion to set aside the Decision, Ms. Grogan brings this motion for production of documents under Rule 30.06 of the Rules. The sole issue on this motion is whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case.

[4] For the reasons given below, the motion for the production of documents is dismissed.

Analysis

Preliminary Issue

[5] The Applicant brings a motion to set aside the Decision under Rule 59.06(2) of the Rules, which states: “[a] party who seeks to (a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made… may make a motion in the proceeding for the relief claimed.”

[6] At the hearing, I raised the issue of the jurisdiction of this court over the matter and whether this court is functus officio, in view of the fact that leave to appeal to the Court of Appeal was sought and denied. I also inquired as to whether the fresh evidence issue ought to proceed before the Discipline Committee of the College before being brought to this court, given that the proceeding before this court was an appeal, in which no findings of fact were made. Counsel advised that they had provided written submissions on the issue of jurisdiction to Matheson J., the case management judge, and that they would rely on those submissions in response to my question.

[7] I received those submissions after the hearing. I note that the issue addressed by the parties in those submissions is whether they are properly before this court or whether they ought to have proceeded before the College first. The submissions did not address whether this court is functus officio.

[8] In any event, I find it unnecessary to make a finding as to jurisdiction at this stage. The issue of jurisdiction would be better addressed on the merits of the motion to set aside. The case management judge also permitted the Applicant to proceed with the motion to set aside without prejudice to the College’s ability to raise the issue of whether she ought to have first proceeded before the Discipline Committee. It is preferable that all of those issues be considered at the same time at the hearing of the motion to set aside.

Should This Court Order Production of the Adjudicator’s Notes?

[9] The Applicant brings a motion for production under Rule 30.06, which states as follows:

Where Affidavit Incomplete or Privilege Improperly Claimed

30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.

[10] Rule 30.06 applies to affidavits of documents. Under Rule 30.03(1) of the Rules, a “party to an action” is required to serve an affidavit of documents. Here, the underlying proceeding is a statutory appeal to this court under s. 35 of the College of Teachers Act, 1996, S.O. 1996, c.12. There is no requirement that a party to a statutory appeal serve an affidavit of documents. The Applicant was unable to provide any authority to support that Rule 30.06 is applicable in a statutory appeal before the Divisional Court, where no affidavit of documents is required. As a result, I am not satisfied that Rule 30.06 provides a basis on which the production of documents can be ordered in the circumstances of this proceeding.

[11] The Applicant also relies on s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), which states that a tribunal “shall compile a record of any proceeding in which a hearing has been held” and lists the documents to be included.

[12] In my view, the Applicant’s reliance on s. 20 of the SPPA is misplaced. Section 20 applies to a tribunal before which a hearing takes place. Moreover, the list of documents to be included in the record of proceedings does not include adjudicator notes.

[13] In addition, I note that Ms. Grogan seeks the production of documents in the context of her motion to set aside the Decision under Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]” The very basis for the Applicant’s motion to set aside is facts that arose or were discovered after the decision was made. A motion under Rule 59.06(2)(a) must thus be grounded in facts, which the moving party bears the burden of proving. In bringing a motion to set aside, the moving party is representing that they have sufficient evidence to support that the outcome would have been different had that evidence been available. A motion to set aside under Rule 59.06(2)(a) is not an opportunity to seek discovery of facts that would enable a party to set aside an order. Such an application of the rule would significantly undermine the principle of the finality of decisions, as further discussed below.

[14] Based on the foregoing, the Applicant has not satisfied me that there is a basis on which this court could order the production of the documents sought.

Does Deliberative Secrecy Preclude an Order for Production of the Notes?

[15] In the event I have erred in my analysis above, I would nonetheless find that Ms. Ferenczy’s notes are protected by deliberative secrecy and that there has been no waiver of the privilege.

[16] Deliberative 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, (Div. Ct.).

[17] Deliberative 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, (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.

[18] However, 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, (F.C.), aff’d on appeal, [2000] 180 F.T.R. 313, (F.C.A.).

[19] The Applicant agrees that the principle of deliberative secrecy applies to Ms. Ferenczy’s notes. The Applicant submits, however, that production should nonetheless be ordered because of the following considerations: (i) that the underlying decision is subject to review by the courts; (ii) that Ms. Ferenczy did not participate in the final deliberations or in the decision-making process of the Discipline Committee; (iii) that because the Applicant does not seek to subpoena Ms. Ferenczy or the other adjudicators, production of Ms. Ferenczy’s notes would constitute only a minor intrusion into deliberative secrecy; (iv) that communications with tribunal staff attract less secrecy; and (v) that Ms. Ferenczy’s affidavit raises concerns that a breach of natural justice took place.

[20] In Payne v. Ontario Human Rights Commission, [2000] O.A.C. 357, (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.)

[21] In 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.

[22] As 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”. Based on the affidavit of Ms. Ferenczy, the Applicant raises issues of reasonable apprehension of bias and a lack of impartiality on the part of the Discipline Committee based on her belief that found Ms. Grogan guilty of professional misconduct at the College’s direction and her belief that anti-Black racism was a factor.

[23] The allegations fail to state the basis of Ms. Ferenczy’s beliefs. Almost eight years have passed since Ms. Ferenczy’s involvement in the matter. Despite this, her affidavit does not state when, how or why she came to believe the serious allegations to which she deposes. Absent any particulars, her beliefs are the type of conjecture and speculation against which Sharpe J.A. warned in Payne.

[24] In my view, Ms. Grogan has not provided a sufficient basis to lift deliberative secrecy for natural justice concerns. Other than conjecture, the affidavit does not explain why Ms. Ferenczy believes that the College directed the Discipline Committee to find Ms. Grogan guilty of professional misconduct or that the College, and not the adjudicators, drafted the decision. The fact that the decision might have differed from what Ms. Ferenczy expected, on its own, is insufficient to support a conclusion that a College employee drafted the decision. Ms. Ferenczy was not present for closing submissions, deliberations after the hearing ended, and the drafting of the decision.

[25] In my view, the Ferenczy affidavit is vague and speculative and does not meet the standard of a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed, as articulated by Sharpe J.A. in Payne. The allegations contained in Ms. Ferenczy’s affidavit do not provide a basis for lifting deliberative secrecy.

[26] The Applicant relies on the Court of Appeal’s decision in Payne to support her motion for production. In that case, however, the evidence in support of the motion was significantly more detailed. In addition, the applicant sought to examine a senior staff member who was present for the deliberations of the Commission about the material put before the Commission by senior staff. She did not seek to examine a decision-maker as to the substance of their confidential discussions. In this case, Ms. Grogan seeks Ms. Ferenczy’s notes about the substance of the panel’s deliberations.

[27] The Applicant’s submission that she seeks only Ms. Ferenczy’s notes and that the notes would not reflect the final decision-making process because Ms. Ferenczy was no longer on the panel by that time, attempt to minimize the extent to which production would intrude into deliberative secrecy. However, it is likely that if those notes were ordered to be produced, they would lead to further questions for both Ms. Ferenczy and the other adjudicators, requiring further intrusion into the deliberative process.

[28] Finally, while the Applicant argues that Ms. Ferenczy has waived the privilege, it is not her privilege to waive. Moreover, deliberative secrecy is in place not only to protect decision-makers, but rather to protect the integrity of the judicial system as a whole and the finality of decisions. To permit a panel member to voluntarily testify would “defeat the whole concept of judicial immunity.” Ermina v. Canada (Minister of Citizenship and Immigration, (F.C.), at para. 10. Decisions must be final and subject only to review through the available and proper routes. See also: Laval v. Syndicat, at para. 8.

Conclusion

[29] Accordingly, the motion is dismissed. Pursuant to the parties’ agreement on costs, the Respondent is entitled to its costs of the motion, in the amount of $7,500, all-inclusive.

“Nishikawa J.”

Date: May 18, 2023