Court File and Parties

Court File No.: CV-19-00004487-0000
Date: 2025-05-05
Court: Superior Court of Justice – Ontario
Address: 7755 Hurontario Street, Brampton ON L6W 4T6

Plaintiffs:
Lucia Derenzis, Joshua Da Silva

Defendants:
His Majesty the King in Right of Ontario, Gore Mutual Insurance Company, Heidi Sevcik, Joseph Ferrito, Sarah Beecraft, Jennifer Bethune, Ken Jones (by his litigation administrator Christopher Raymond Jones, Whitehall Bureau of Canada Limited), Michael Wright, David Mascarenhas, Ambleside Investigation Management Inc., Rapid Interactive Disability Management Inc., Singh Heeraman, Ranu, Peel Region Police Service Board, Andrea Perone, Carl Mullings

Third-Party Records Holder:
Tribunals Ontario

Before:
Renu Mandhane

Counsel:
Ashu Ismail, for the plaintiffs
Eric Wagner, for the third-party records holder

Reasons on Rule 30.10 Motion for Production of Records Held by Tribunals Ontario

Introduction

[1] The Plaintiff, Lucia Derenzis, brings a motion pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for production of records held by the License Appeal Tribunal (“LAT”). The records include adjudicators’ notes and draft decisions (the “notes and drafts”), and more than 400 emails between adjudicators, counsel and staff (the “emails”). The LAT created the records during its administration of Derenzis’ applications against her insurance company, Gore Mutual Insurance Company (“the Insurer”).

[2] Because the records contain her personal information, Derenzis first requested them from the LAT directly. The LAT refused to provide them, asserting deliberative secrecy and solicitor-client privilege. Derenzis appealed the LAT’s refusal to the Information and Privacy Commissioner for Ontario (“IPCO”). The LAT would not disclose the records to the IPCO for their review. While the IPCO refused to order release of the notes and drafts, it found that there was “insufficient evidence” to determine whether the emails were also subject to deliberative secrecy. The IPCO ordered the LAT “to issue an access decision” with respect to the emails. In its access decision, the LAT again refused to release the records to Derenzis. The IPCO’s decision is now under review by the Divisional Court.

[3] Derenzis now appears before this court. She asks me to order Tribunals Ontario (“the Tribunal”) to produce the records because they are relevant and necessary to her constitutional challenge to Ontario’s no-fault auto insurance scheme, and because there are valid reasons for believing that the LAT did not comply with the rules of natural justice when administering her applications.

[4] The Tribunal opposes any production order: it says that the records are irrelevant to the claim and, in the alternative, that they are protected by deliberative secrecy and/or solicitor-client privilege. It says that I should not lift the veil of secrecy because the LAT complied with natural justice in administering her claim.

[5] Having carefully reviewed the records, I order the Tribunal to produce them to Derenzis, save and except those that I have determined are protected by solicitor-client privilege. The records are relevant to the constitutional challenge, and they are necessary because whether the LAT is sufficiently independent is a central issue in the litigation.

[6] While some records are protected by deliberative secrecy, the secrecy must give way on these facts because Derenzis has demonstrated concerns about a breach of natural justice. It is uncontroversial that two successive executive chairs of the Tribunal have directly intervened three times in Derenzis’ applications to the LAT: first, to recuse a three-person panel for the appearance of bias; then, to recuse a panel member because she had been on the first three-person panel; and, most recently, to personally complain about plaintiff’s counsel to the Law Society of Ontario.

Overview

[7] It is undisputed that Derenzis suffered catastrophic injuries after a truck ran her down on November 24, 2015. Pursuant to the Statutory Accident Benefits Schedule (“the Schedule”), Derenzis claimed statutory accident benefits from the Insurer (“the benefits”), while also suing the driver of the truck for damages (CV-16-00001766-0000).

[8] Derenzis applied to the LAT three times for relief against her Insurer about her benefits eligibility and coverage. Derenzis was roundly unsuccessful at the LAT and her applications are now mired in multiple appeals to the Divisional Court.

[9] In this action (CV-19-00004487-0000), Derenzis seeks general and punitive damages totaling over ten million dollars against the Insurer amongst others. She alleges that the Insurer and its sub-contractors intentionally caused her emotional distress by requiring her to attend repeated medical examinations and through aggressive public surveillance of her and her family.

[10] The Insurer says that this Court does not have jurisdiction over the substance of the claim: Yang v. Co-operators General Insurance Company, 2022 ONCA 178, at para. 7. Indeed, it is well-established that the LAT has exclusive jurisdiction over all matters related to the nature and extent of the insurer’s obligations under the Schedule, including any alleged efforts to circumvent them: Yang, at paras. 4-7, referring to Stegenga v. Economical Mutual Insurance Co., 2019 ONCA 615. At the same time, the LAT has interpreted its own enabling legislation to find that it does not have jurisdiction to award damages for torts or breach of contract: Gilani v. Travelers Insurance Company of Canada, 2022 ONLAT 19-009248/AABS.

[11] To get around these jurisdictional hurdles, as part of her civil claim, Derenzis asks me to declare sections 280 and 267.5 of the Insurance Act, R.S.O. 1990, c. I.8 unconstitutional (“the impugned provisions”). The impugned provisions form the backbone of Ontario’s no-fault auto insurance scheme. They give the LAT exclusive jurisdiction over all aspects of disputes about how an insurer handles claims made pursuant to the Schedule. Derenzis says that the impugned provisions are invalid because they create a statutory bar on damage claims related to the administration of the benefits, and delegate adjudication of insurance contracts to an inferior tribunal that lacks independence (i.e., the LAT). Ontario is named as a defendant to respond to the constitutional issues but does not take a position on this motion.

[12] Derenzis now asks me to order the Tribunal to produce all the records in its possession that are relevant and necessary to her constitutional challenge.

[13] The Tribunal opposes the motion on behalf of the LAT. The Tribunal claims deliberative secrecy over all the records because they “may enclose a draft decision or direction, may reveal the adjudicator’s procedural or substantive decisions or directions, and may reveal how adjudicators are assigned to files.” The Tribunal claims solicitor-client privilege over the records where the adjudicator seeks advice from counsel or where counsel provides advice to the adjudicator, as well as staff communications that reveal legal advice sought or received.

[14] The parties agree that the law on a Rule 30.10 motion is set out in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39, and that I could review the records for the purposes of determining the motion.

[15] To decide this motion, I must answer the following questions:

• Are the records relevant to the constitutional challenge?
• Are the records necessary for a fair hearing of the constitutional application?
• Are the records protected by deliberative secrecy? If so, should the secrecy be lifted because Derenzis has demonstrated concerns about a breach of natural justice?
• Are any of the records protected by solicitor-client privilege?

Analysis

The Structure and Administration of the LAT

[16] The LAT is a provincial administrative tribunal whose decision-makers have adjudicative independence but whose associate chair is accountable for the LAT’s administration to the executive chair of the Tribunal. The executive chair is responsible for ensuring that all provincial administrative tribunals—including the LAT—are accountable, transparent, and efficient, while maintaining the independence of their decision-making: Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, s. 1 & 16(1).

[17] The Tribunal says that the records were all produced as part of the LAT’s day-to-day administration of Derenzis’ applications. The Tribunal provided an affidavit outlining the steps in the LAT application process:

• Step 1: Upon receipt, the application is uploaded to the case management portal by staff.
• Step 2: The staff team lead assigns a case management officer to assess the file and take the administrative steps necessary to implement the procedural directions given by the adjudicator.
• Step 3: The associate chair (or their delegate vice-chair) assigns an adjudicator to conduct a case conference; assignments are based on the nature of the proceedings, the legal issues involved, the size and composition of the hearing panel, adjudicator expertise, and adjudicator availability.
• Step 4: If settlement is not achieved at the case conference, the case management adjudicator, with assistance of staff, manages the next procedural steps in the application, including scheduling motions.
• Step 5: The associate chair (or their delegate vice-chair) assigns an adjudicator or panel of adjudicators to conduct the merits hearing (“merits adjudicator”).
• Step 6: The merits adjudicator may direct staff to release final or interim decisions.

[18] The LAT’s affiant did not provide details about how the associate chair is accountable to the executive chair of the Tribunal.

Are the Records Relevant to the Constitutional Application?

[19] It is uncontroversial that the constitutional application is a material issue in the trial. The only issue at this stage is whether the records are relevant to the constitutional challenge—meaning, do they make it more or less likely that a fact in issue is true.

[20] The pleadings in the action frame the relevance analysis. Derenzis pleads her constitutional claim in her Second As Amended Statement of Claim in two main ways. First, she alleges that the impugned provisions extinguish her common law rights to seek damages in tort, equity, and contract—without monetary limits—contrary to s. 96 of the Constitution Act, 1867. Second, she pleads that the impugned provisions provide an inferior tribunal that lacks adjudicative independence (i.e. the LAT) with exclusive jurisdiction to decide disputes, and that this has a disproportionate negative impact on disabled people, contrary to ss. 7 & 15 of the Charter. Ontario has not moved to strike the constitutional application and has agreed that it should be heard on its merits.

[21] Leaving aside the merits of the Plaintiff’s claim, it is clear from the pleadings that a key factual issue in dispute is whether the LAT lacks adjudicative independence. The records are relevant to that issue because they are directly related to the adjudicative and administrative processing of her claim by the LAT, including the interactions between adjudicators, counsel, staff, and associate, vice, and executive chairs. While the records may not be especially probative or even admissible at trial, that does not matter on a Rule 30.10 motion where the only question is relevance.

Are the Records Necessary for a Fair Hearing of the Constitutional Application?

[22] Having found that the records are relevant, I must go on to consider whether disclosure is necessary for a fair hearing of the constitutional application: Ontario v. Stavro.

[23] I find that it is. It is uncontroversial that Charter challenges cannot proceed in a factual vacuum and must be proven through evidence rather than speculation and conjecture. This is certainly the case here where Derenzis seeks to challenge legislation that creates Ontario’s no-fault auto insurance scheme: Campisi v. Ontario (AG), 2017 ONSC 2884, at para. 15; aff’d 2018 ONCA 869.

[24] Meanwhile, the records cannot be obtained in any other way because the LAT has already refused Derenzis’ freedom of information request. Suffice it to say, the Tribunal is not a typical third-party to this litigation: its actions lay at the heart of the constitutional challenge, its interests are the same as those of Ontario (they are accountable to the same Minister), and there is no contravening privacy interest in the documents.

Are the Records Protected by Deliberative Secrecy? If So, Should the Secrecy Be Lifted Because Derenzis Has Demonstrated Concerns About a Breach of Natural Justice?

[25] The LAT says that all the records are protected by deliberative secrecy. In addition to the adjudicator’s draft and notes, the LAT says that the emails may reveal the adjudicator’s procedural or substantive decisions or directions, and may reveal how adjudicators are assigned to files.

[26] Justice Nishikawa succinctly set out the law in Grogan v. Ontario College of Teachers, 2023 ONSC 2980, paras. 16-18. Deliberative secrecy is a core component of administrative independence: it promotes the finality of decision by preventing disclosure of how and why decision-makers reached their decisions, while also creating a zone of secrecy in which decision-makers can engage in collegial debate and seek appropriate feedback with the goal of ensuring consistency.

[27] Deliberative secrecy is not watertight in the administrative context because there is an inherent tension between secrecy and the fundamental right to know that the decision was made in accordance with the principles of natural justice. That is why the secrecy is interpreted more narrowly to only attach to matters that lie at the heart of the exercise of judgement or the deliberative process: Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952.

[28] I start with the emails before turning to the notes and drafts. Based on my review, the emails fall into three broad categories. The first and largest category of emails are administrative communications about the management of Derenzis’ applications before the LAT (the “administrative emails”). The administrative emails deal with day-to-day case management like receipt and distribution of application materials, receipt and response to routine communications, confirmation of procedural steps, internal tracking, and scheduling. The administrative emails are not protected by deliberative secrecy because there is nothing deliberative about them—they do not relate to the decision-making process in any way.

[29] The second category of emails are communications about adjudicator assignments and schedules (“scheduling emails”). In Mackeigan v. Hickman, [1989] 2 S.C.R. 796, the Supreme Court reiterated the importance of courts having control over the assignment of judges without interference from the legislature or executive. This reasoning applies with equal force to administrative tribunals as far as it would be unthinkable for Ontario’s Attorney General to instruct the LAT’s associate chair to assign a particular adjudicator to a particular application. However, deliberative secrecy does not extend to the scheduling emails because they relate to scheduling and not decision-making. They have little to do with the associate chair applying his discretion to determine which members to assign to which files. Again, the substance of the scheduling emails is administrative; they are not protected by deliberative secrecy.

[30] The third category of emails are those that relate to or otherwise might reveal deliberations by adjudicators or the substantive decision-making processes employed by the LAT (“deliberative emails”). The deliberative emails shed light on the nature and extent to which adjudicators engage with other adjudicators, counsel, and staff as part of their decision-making process on both procedural and substantive matters. The deliberative emails are prima facie protected by deliberative secrecy because they relate to the process by which adjudicators arrived at both procedural and substantive decisions.

[31] Beyond the emails, the Tribunal claims deliberative secrecy over the notes and drafts. Most of the notes and drafts fall within the core of the type of communications that are meant to be protected by deliberative secrecy. They include communications that go to the substance of the decision-making process, including what material was considered or not considered by the adjudicator, the legal advice that was requested or received, and the extent to which the adjudicator was influenced by the views of others: Agnew v. Ontario Association of Architects (1987), 64 O.R. (2d) 8 (Ont. Div. Ct.).

[32] That all being said, administrative tribunals cannot rely on deliberative secrecy to the same extent as courts. The secrecy may be lifted where the litigant can present “valid reasons for believing that the process followed did not comply with the rules of natural justice”: Commission scolaire de Laval v. Syndicat de l'enseignement de la region de Laval, 2016 SCC 8, para. 58.

[33] Here, Derenzis says that I should order to lift the secrecy over the deliberative emails and the notes and drafts because she has presented valid reasons for believing that the process followed by the LAT did not comply with the rules of natural justice.

[34] I find that Derenzis has met her onus in this regard. To support my finding, I rely on three uncontroversial facts about Derenzis’ applications before the LAT, that:

• On May 18, 2018, the executive chair recused a LAT panel assigned to hear the Derenzis matter after one of the adjudicators told the parties that he had to take instructions from his “client.”
• On May 1, 2019, the executive chair recused a LAT adjudicator from hearing a Derenzis matter because she had been on the LAT panel that had been recused in 2018.
• On January 24, 2025, the executive chair filed a complaint to the Law Society of Ontario against one of the Derenzis’ lawyers based on materials that the lawyer filed at the LAT on her behalf.

[35] These facts alone raise concerns about the independence of LAT adjudicators, and whether their process complied with natural justice as it relates to Derenzis’ applications. My concerns are amplified by the Court of Appeal’s finding that the LAT’s internal review process lacked sufficient independence during the same time frame as Derenzis’ applications and under the same executive leadership: Shuttleworth v. License Appeal Tribunal, 2018 ONSC 3790, aff’d 2019 ONCA 518.

[36] I would order the LAT to produce the records save and except those protected by solicitor-client privilege. I turn to the privilege claim next.

Are Any of the Records Protected by Solicitor-Client Privilege?

[37] The LAT claims privilege over emails involving counsel who provide legal advice, provide comments on draft decisions when requested, and assist in the finalizing and publication of decisions.

[38] Because LAT counsel provides both legal and non-legal services, I must consider whether counsel’s advice in each communication is such that it can be properly characterized as privileged: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, paras. 19-20.

[39] Solicitor-client privilege applies to communications between solicitor and client, which entails the giving of legal advice, and which are intended to be confidential by the parties. It is meant to create a zone of privacy where the client is able to speak freely with counsel to obtain their advice. In Pritchard, the Supreme Court found, for example, that staff counsel’s legal opinion to the commission was protected by solicitor-client privilege, at para. 28. Once established, solicitor-client privilege is nearly absolute.

[40] The Tribunal claims solicitor-client privilege over nearly seventy emails, which include communications involving counsel, law clerks, staff, adjudicators, and larger staff teams. Having reviewed the emails, I find that some of them are properly considered privileged insofar as they relate to the request for and receipt of legal advice. However, many emails are not related to legal advice at all because they are administrative; they relate to the internal processing of Derenzis’ application by the LAT and cannot be properly characterized as related to legal advice.

[41] Using the numbering found in the chart at Exhibit EE to the Tribunal’s affidavit, I find that only the following emails are protected by solicitor-client privilege: 6, 7, 10, 17, 18, 20, 34, 36, 38, 43, 49, 52, 55, 56, 82, 85, 87, 148, 349-351, 353, 354.

[42] Using the LAT’s document naming convention, I find that the following notes and drafts are also protected by solicitor-client privilege because they involve legal advice:

• 4th Reconsideration Request Decision Derenzis 17-002762 - final version for release.msg
• FW_ Recon Legal Review - JB TO TG.msg
• 18-011978 - Response to July 30 2019 Letter_docx.msg
• Decision in mCL 18-011978.msg
• FW_ Decision in mCL 18-011978.msg
• July 18-19_ln_18-011978 - Motion.msg
• RE_ Tipping v Coseco Tribunal No__ 18-004783_AABS.msg
• Response to Recusal Request 18-011978.msg

Order

[43] The Tribunal shall produce all the records in its possession that are relevant to the constitutional challenge, except those protected by solicitor-client privilege pursuant to paragraphs 41 and 42 of these reasons.

[44] Derenzis was successful on this motion. Based on the agreement of the parties, Tribunals Ontario shall pay costs in the amount of $4,000.

Renu Mandhane

Released: May 5, 2025