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Judicial Review - Record to be Filed [JRPA 10]. Endicott v Independent Police Review Director
In Endicott v Independent Police Review Director (Ont CA, 2014) the Court of Appeal considers what constitutes a 'record' under JRPA 10, to require the tribunal to file it for a judicial review application. The court decides that the issue turns on the administrative procedure requiring a 'hearing' - and so the SPPA 20 (which only addresses the content of 'hearing' records) does not always have application to JRPA 10:What is to be included in the record of proceedings?
[37] The JRPA does not contain any provision setting out what is to be included in the record of proceedings. The SPPA by contrast does set out what is to be included in a record of proceeding where that Act applies. Section 20 of the SPPA provides as follows:20. A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,
(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;
(b) the notice of any hearing;
(c) any interlocutory orders made by the tribunal;
(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
(e) the transcript, if any, of the oral evidence given at the hearing; and
(f) the decision of the tribunal and the reasons therefor, where reasons have been given. [38] As I have explained above, the SPPA has no application to the Director’s decision to weed out a complaint filed under the PSA. As s. 20 of the SPPA explicitly states, the record of proceeding contemplated under that Act is a record of proceeding prepared following a hearing. The screening out decision of the Director is fundamentally different and, in my view, little guidance can be taken from s. 20 of the SPPA in answering the question of what the Director is to include in his record of proceedings.
[39] The motion judge’s order simply provided that the Director was to file “a record of proceedings” without stipulating what the record should contain. The panel of the Divisional Court, sitting in review of the motion judge’s decision, substantially expanded the order and required that the record of proceedings “include everything that was before the [Office of the Director], whether written, oral or electronic, at the time it made its decision.”
[40] In my view the motion judge’s order was the appropriate order in the circumstances. As I noted earlier, the JRPA does not stipulate what is to be included in a record of proceedings. It would seem reasonable to conclude that, depending on the decision-maker and the type of decision made, the contents of such a record will be substantially different. The parties’ facta and oral submissions provided limited assistance on this point. As a result, at the conclusion of oral submissions, the parties were asked to provide written submissions on what should be included in any record of proceedings.
[41] The position taken by the respondent in these submissions was that the Director should be required to file a record of proceedings that includes:(a) Ms. Endicott’s complaint;
(b) Internal notes or memoranda regarding Ms. Endicott’s complaint;
(c) Copies of any audio or oral recordings, including voicemails (in the native format; transcripts are not required);
(d) Copies of any relevant communication, including those in electronic format such as emails;
(e) Interview notes, with any witnesses (with any information removed as necessary under privacy legislation);
(f) Copies of all correspondence between Ms. Endicott and the Director or his office;
(g) Any general policies, memoranda, or notes relevant to the decision of Ms. Endicott’s complaint (subject to deliberative secrecy); and
(h) A list of all documents the Director has determined need not be produced. [42] For his part, the Director only addressed what should be included in a record filed in response to an application for judicial review. He submitted that such a record should include:(a) The complaint form and any attachments provided by the complainant;
(b) The reasons for decision;
(c) Information from the Director’s files that is directly relevant to or was part of the screening decision and is not subject to solicitor/client privilege, deliberative secrecy or statutory confidentiality; and
(d) Any evidence relied on in making the screening decision which is directly relevant to the issues raised in the application. [43] I view the extent of the material ordered by the Divisional Court and the list proposed by the respondent to be overly broad and unnecessarily detailed. It is well settled that the starting point for defining what a record of proceeding is to contain when no statutory definition is provided is the decision of Denning L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-52. There Denning L.J. stated that:…throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision. [44] The statement was expanded upon by Sharpe J.A., writing for the majority in Payne v. Ontario Human Rights Commission (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315, wherein he stated, at para. 161:An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal, Ex parte Gilmore, [1957] 1 Q.B. 574 (Eng. C.A.) at 583:The court has always had power to order an inferior tribunal to complete the record … [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order. [45] The Director has indicated a willingness to file the materials listed in paragraph 42 above in response to an application for judicial review. With the exception of the materials referred to in item (d) of that list, I have assumed that he would file similar materials as part of a record of proceedings if we were to confirm the divisional court’s decision. The materials referred to in item (d) only become relevant once the respondent has set out the issues she wishes to raise on judicial review. In my view, the materials listed in paragraph 42, items (a), (b) and (c), satisfy what is required in a record of proceedings in this context. Arguably, the breadth of the materials that could be encompassed within item (c) may, in some cases, exceed what is required or be subject to interpretation. In light of the Director’s apparent willingness to include the materials listed in items (a), (b) and (c), in my view nothing more is needed in this case than to require that the Director file a record of proceedings so constituted. If further direction is required, it can be addressed in the judicial review proceedings.
[46] Defining the record in the way proposed by the respondent or as ordered by the Divisional Court is in my view unwarranted and can be confusing. The statutory power of decision exercised by the Director in this case is clearly at the lower end of statutory decision-making in terms of deliberative process, rights affected and complexity. As explained by the Director, screening out decisions will only infrequently involve consideration of more than the complaint form and attachments provided by the complainant. Stipulating that any record filed must contain “audio or oral recordings, including voicemails” suggests that there is an obligation on the Director to catalogue and keep records of all voicemails that may, at some later point, have to be produced in response to a judicial review application challenging a screening out decision. Given the nature of the screening out decision contemplated by the PSA, requiring the production of records of proceedings defined in this way is overly broad and, in my view, unhelpful.
[47] It may well be that, depending on the nature of a complaint and the challenge brought to the screening out decision made by the Director, a record of proceedings in a given case will contain materials that go beyond those listed by the Director, as quoted above. It may also become clear in the course of this proceeding or other proceedings that the court will be called upon to order the Director to produce additional materials. That, however, is for another day and need not be decided in the context of this appeal. . Sellors v. State Farm
In Sellors v. State Farm (Div Court, 2023) the Divisional Court considers the JR record where the tribunal (an Insurance Act umpire) was stated by the court to be not governed by the Statutory Powers Procedure Act [SPPA s.3(2) (presumably, but no identification of which clause) and s.20]:Establishing the Record for Judicial Review
[47] During the case management process, this court directed the Umpire to serve a Record for use on this application. It emerged that the Umpire did not retain a record. The appraisal is not governed by the Statutory Powers Procedure Act, RSO 1990, c.S.22, and so there is no statutory requirement to keep a record. There may be a common law requirement to keep a record, but it is not necessary to inquire into this issue in the circumstances of this application. The referral of this matter to appraisal was ordered by a court, and the appointment of the Umpire is not contested. There is no dispute respecting the appraisal brief provided by State Farm, and there is no dispute that the Applicant did not file an appraisal brief. There is no requirement to record the appraisal hearing itself. The form of the award is prescribed in the Insurance Act, and the award complies with this requirement. Had the Umpire kept a record, it would have been comprised of these materials before the court. The Record is established sufficiently for the purposes of judicial review. . Sui v. Ontario
In Sui v. Ontario (Div Court, 2022) the Divisional Court makes the useful point that a court has jurisdiction over it's own record of a case before it:[1] In this court's explanation for the R.2.1 notice, the court asked why Mr Sui's recourse for issues concerning transcripts of OCJ Criminal Code proceedings ought not be in the OCJ (as the court with jurisdiction over its own record) or in a court to which an appeal is taken from a decision of the OCJ (as the court controlling its own appellate process). . Torgerson v. Health Professions Appeal and Review Board
In Torgerson v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court considered documents to be included in the 'record' on a judicial review application under the JRPA:[12] Section 20 of the SPPA sets out the documents to be included in a record of proceeding. These include, at subparagraph (f), the “decision of the tribunal and the reasons therefor, where reasons have been given”. Dr. Torgerson argues that the summary published on the CPSO’s website forms part of the ICRC’s reasons for decision and is therefore properly before the Court on the application for judicial review.
[13] The HPARB argues that the SPPA does not apply to its review of ICRC decisions under the Code and that its obligation to file a record of proceeding arises from section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) and not from the SPPA. It further argues that, given that the summary was not part of the record on the review, it does not form part of the record of proceeding to be filed with the court.
[14] I agree with the HPARB’s position. Its obligation to file a record of proceeding arises from section 10 of the JRPA and the SPPA has no relevance here. The summary is only to be included in the record of proceeding if it formed part of the record before the HPARB on the review. Even if section 20 of the SPPA applied to the review of a decision by the ICRC, which it does not, the summary of the decision posted on the CPSO’s website does not fall within the scope of section 20(f).
[15] However, in my view, Dr. Torgerson should be allowed to file an affidavit attaching the summary of the decision. As a general rule, applications for judicial review are to be decided on the record before the original decision maker. There are limited exceptions to this principle. The Divisional Court summarized these exceptions in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10 to 12. One of the exceptions, as set out in para. 11 of that decision, is that affidavit evidence may be admitted “to provide general background that might assist the court in understanding the underlying issues”.
[16] In this case, one of Dr. Torgerson’s arguments on the application of judicial review is that the HPARB’s decision was unreasonable because it failed to have regard to the punitive effect of the caution given its publication on the CPSO website. In order to understand and address this argument, it will be helpful for the Divisional Court panel to have access to the summary posted on the CPSO’s website.
[17] Ultimately, it will be up to the panel to decide whether this argument is available to Dr. Torgerson, having regard to whether it was raised before the HPARB or whether the HPARB would even have had jurisdiction to consider the issue. However, at this early stage in the application for judicial review, given the issues raised in the Notice of Application for Judicial Review, I find that the Dr. Torgerson can file the proposed affidavit and it will be up to the panel on the hearing of the application for judicial review to determine what relevance, if any, it may have to the issues to be decided.
[18] While I recognize that this Court has directed that it is generally preferable for the record on an application for judicial review to be determined in advance of the hearing: Sierra Club Canada v. Ontario, 2011 ONSC 4086 (Div. Ct.), at paras. 7-9. In cases such as this one where the evidence the applicant seeks to adduce is inextricably intertwined with an issue raised on the application, the panel hearing the application will be in the best position to determine what, if any, relevance the evidence may have to the merits of the application. . Poyton v. Office of the Independent Police Review Director [s.20(d) - redaction practice]
In Poyton v. Office of the Independent Police Review Director (Div Ct, 2022) the Divisional Court considered practice issues where a self-represented party sought to redact parts of a judicial review record:Issue (b) Redactions in the Record
[7] The respondent has redacted the record to remove personal information about persons involved in the case, to protect the privacy of those persons. The respondent has not sought to file an unredacted record with the court because, in the respondent’s view, none of the redacted information is material to the issues on the application.
[8] Mr Poyton has unredacted copies of most or all of the redacted documents: they are documents that he, himself, provided to the respondent and/or to PRPS. Much of the redacted information pertains to Mr Poyton himself.
[9] Mr Poyton understood that a complete record of what was before the respondent ought to be before this court on the application. Technically that is correct, and where it is necessary to do so, this court will direct that a redacted record be filed publicly and an unredacted record be provided to the court in a secure manner. As this matter was discussed in oral argument, Mr Poyton acknowledged the reasonableness of this approach. In the result, I dismiss the request that an unredacted record be filed, but I give the following directions for the information that has been redacted.(a) If there is any redacted information in the record that Mr Poyton does not have, he may request an unredacted copy from the respondent for the purposes of this proceeding, on providing an undertaking not to divulge it to any person except as authorized by this court.
(b) If the respondent declines any request made by Mr Poyton under (a), it shall need to bring a motion before this court for a sealing order for that information.
(c) If the parties conclude that any of the redacted information needs to be provided to the court for the court to adjudicate the application on the merits, they shall provide this court with a consent, draft order, and an explanation of the request for a sealing order for this information to be provided to the court.
(d) If the parties disagree in respect to any issue under (c), the party wishing to have the redacted information placed before the court shall request a case conference with this court to schedule a motion on that issue. This rather complicated procedure is established based on my assessment that, when the applicable principles were explained to Mr Poyton during the motion, he understood the underlying purpose of the redactions and accepted that there was no need to burden the application court with two records if redacted information is not material to the application. For example, Mr Poyton’s OHIP number is not material to the application, and he has an important privacy interest in seeing that this personal information of his is not included in a court file that will forever remain open to be viewed by any member of the public. I would add a caveat that documents that are already in the public record (such as a publicly available decision in immigration proceedings) would not seem to qualify as documents in respect to which a person may have a continuing privacy interest. Given these observations, the court hopes and believes that there will be few, if any, disagreements over this issue now that it is better understood. . Watson v. The Corporation of the Municipality of Stirling-Rawdon
In Watson v. The Corporation of the Municipality of Stirling-Rawdon (Div Ct, 2021) the Divisional Court considered s.20(d) of the SPPA, which reads:s.20
A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include, .... (d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
The issue was the extent to which evidence used in a report of the Integrity Commissioner for a municipality could be compelled in disclosure as part of the record in a judicial review application:[3] The issue in part turns on the relationship between the Commissioner’s obligation under the Judicial Review Procedure Act and Statutory Powers Procedure Act to file the “record of proceedings” before him and the Commissioner’s obligation to preserve the confidentiality of all matters that came to his knowledge in the course of exercising his duties under Part V.1, as prescribed by s. 223.5 of the Act [SS: Municipal Act, 2001].
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[11] The Commissioner’s duty to preserve secrecy is set out in s. 223.5 of the Act:The Commissioner and every person acting under the instructions of the Commissioner shall preserve secrecy with respect to all matters that come to his or her knowledge in the course of his or her duties under this Part. [12] Section 223.6(2) of the Act sets out a discretionary exception to s. 223.5:If the Commissioner reports to the municipality or to a local board his or her opinion about whether a member of council or of the local board has contravened the applicable code of conduct, the Commissioner may disclose in the report such matters as in the Commissioner’s opinion are necessary for the purposes of the report. [13] The applicant’s first argument is that, because the Commissioner’s report discloses some of the facts and evidence considered or relied on by the Commissioner, he has “engaged the statutory exception to the duty to preserve secrecy with respect to the evidence”. As such, the argument goes, there is no longer a statutory duty to preserve the secrecy of any evidence obtained by the Commissioner during his investigation. Further, by virtue of being referred to in the report, the applicant argues, it must be inferred that all the evidence is therefore “necessary for the purposes of the Report” within the meaning of s. 223.6(2) of the Act and ought to be disclosed.
[14] I do not accept this argument. The discretion about what is “necessary” to disclose and what is not is conferred on the Commissioner, not the court. Mandamus generally does not lie to compel the exercise of discretion. More importantly, if accepted, the applicant’s argument would rob the confidentiality obligations of the Commissioner under s. 233.5 of all meaning. Every integrity commissioner’s report is going to make some reference to the evidence uncovered in an investigation. If this constituted, in every case, an effective waiver of the “secrecy” requirement for everything gathered by the commissioner in the course of an investigation, the entire purpose of the enactment of s. 233.5 and the discretion afforded in s. 233.6 would be defeated.
[15] The applicant’s second argument is that s. 233.5 ceases to have force where there is subsequent litigation about the Commissioner’s report which, as here, engages the sufficiency of disclosure by the Commissioner of the case to be met. The applicant argues that it cannot be determined whether she was denied procedural fairness by insufficient disclosure without knowing the details of all the evidence available to the Commissioner, including what she was not given.
[16] In making this argument, the applicant relies on a decision of this Court in Fuda v. Information and Privacy Commissioner et al, 2003 CanLII 12661 (ON SCDC), [2003] O.J. No. 2790. In obiter, the court “noted” that in performing his or her legislative function, a privacy commissioner is performing an inquisitorial function that does not mandate a public hearing. Once a privacy commissioner’s decision is brought to court, however, the review process changes from inquisitorial in nature to adversarial. Absent specific provisions to the contrary, the court went on to say, denial of information in a court setting is the exception and not the norm because, in court proceedings, the presumption of openness applies subject to sound reasons to the contrary.
[17] Thus, the applicant argues, the duty to preserve secrecy under the Act should not minimize or qualify the duty to file in her application for judicial review the full record of all the evidence and other material that was available to the Commissioner.
[18] I cannot accept this argument. Fuda has no application to this case. Fuda was concerned with the general principle of “open” court proceedings, at common law and under s. 135 of the Courts of Justice Act. Fuda did not involve s. 233.5 of the Act or any comparable provision. Fuda acknowledged that the “open-ness” principle must yield to, among other things, “specific provisions to the contrary.” Here, s. 233.5 is a specific provision to the contrary.
[19] More apt in this context is the decision of Marrocco A.C.J.S.C., writing for this Court in DiBiase v. Vaughan (City), 2016 ONSC 5620. In the course of his reasons, the former associate chief justice considered ss. 233.5 and 223.6 of the Act, observing that these sections provide a commissioner with “significant autonomy” regarding the disclosure of information obtained during an investigation. Section 233.5 recognizes that when deciding how much information must be disclosed, a commissioner may take into account specific local concerns associated with disclosure that may require confidentiality or protection of informant’s identities. A commissioner, he wrote, is not required to identify the witnesses or disclose the documents provided by them. He went on to cite the famous passage from Lord Denning in Selvarajan v. Race Relations Committee, [1976] 1 All E.R. 12 (Eng. C.C.) at p. 19, to the effect that a subject of an investigation is entitled to know the case against her and be afforded a fair opportunity of answering it. The investigator is the master of his own process, however, and “need not put every detail of the case” forward in disclosure. It is sufficient if the “broad grounds” are given.
[20] In DiBiase, there is no indication that the Court, in ruling on the sufficiency of disclosure of the “case to be met”, required or had access to the undisclosed, confidential details of the commissioner’s investigation. On the record before me on this motion, I am in no position to evaluate the sufficiency of the disclosure given by the Commissioner at the time nor is that my role. Whether there was sufficient disclosure of the case to be met will be for the panel hearing the application to consider and decide. At this point, I am not prepared to order disclosure of material protected under s. 233.5 and considered by the Commissioner not to be necessary for the purposes of his report. It has not been shown, as a matter of law or procedural fairness, that s. 233.5 can or should be overridden. Section 20 of the SPPA specifically contemplates circumstances where some or all of the evidence available to the tribunal will not be part of the record of proceedings because it is subject to a limitation expressly imposed by another Act. Section 233.5 is such a provision.
. Reflection Productions v. Ontario Media Dev. Corp.
In Reflection Productions v. Ontario Media Dev. Corp. (Div Ct, 2021) the Divisional Court considered an issue of the record required at an application for judicial review, and the efforts that a party must make to create it:[71] The Applicant served a Notice of Examination under Rule 39.03 of the Rules of Civil Procedure, which is a mechanism to compel oral testimony. The Notice of Examination was quashed. The decision to quash was not appealed. The Notice of Application seeking judicial review does not raise the decision to quash the Notice of Examination as an error.
[72] A subpoena duces tecum is a mechanism to have a witness present oral testimony. It is not an order to produce documents to a party outside of court, as set out in Law Society of Saskatchewan v Abrametz, 2016 SKQB 134 at para 46:The document in issue, a subpoena duces tecum, is understood to have a particular function - to compel the subpoenaed person to court, or other independent tribunal, to testify and to bring with him/her certain, specified documents. Watt J. (as he then was) described a subpoena in these terms in R. v. Finkle, [2007] O.J. No. 3506 (Ont. S.C.J.) (QL): "literally translated 'under penalty', [a subpoena] is a command to the person named to appear at a time and place specified to give testimony about a matter in issue between the parties to a proceeding" (para. 88). Watt J. then explained the function of a subpoena duces tecum and the limits that ought to attach to its use:... A subpoena duces tecum requires the witness to bring with him or her things like books, papers and other things connected with his or her testimony. In the usual course, a subpoena duces tecum is not used to obtain these other things, which are often used as aides memoires for production at trial.
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It is uncontroversial that, where alternative methods of obtaining evidence are available, the party who seeks the evidence may generally choose the means to achieve that end. At the same time, however, courts should be chary of manifest circumventions of traditional methods of acquiring evidence, especially those that avoid adherence to established constitutional principle. A subpoena duces tecum ought not to be used to avoid the scrutiny associated with other methods of acquisition. See, by comparison, R. v. French (1977), 1977 CanLII 2117 (ON CA), 37 C.C.C. (2d) 201, 213-4 (Ont. C.A.) per MacKinnon J.A., affirmed on other grounds (1979), 1979 CanLII 49 (SCC), 47 C.C.C. (2d) 411 (S.C.C.). [Emphasis in original.] [73] Although not raised in the Notice of Application, the applicant now argues that the record filed by the decision-maker was underinclusive.
[74] Section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides:Record to be filed in court
When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made. [75] Ergo, pursuant to s. 10 of the Judicial Review Procedure Act, it was available to the applicant to bring a motion seeking production of documents it alleges were relied on by the decision-maker but are not contained in the record: see, for example K.D. v. Peel Children’s Aid Society, 2017 ONSC 7392 (Div. Ct.) at paras. 16-17). The applicant failed to do so. As a result, it is precluded from raising this issue for the first time on judicial review.
[76] The applicant’s argument in this regard therefore fails. . LifeLabs LP v. Information and Privacy Commissioner of Ontario
In LifeLabs LP v. Information and Privacy Commissioner of Ontario (Div Court, 2023) the Divisional Court considered an exception to deliberative 'secrecy' (privilege), here in the context of what may be allowed in the record:[15] The motion judge also quoted an accurate statement of the law relating to deliberative secrecy in Summit Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), paras. 76-82, which recognized that this principle applies to administrative tribunals, although less strongly than to the courts. The motion judge recognized that adjudicative privilege, as he called it, could be displaced where it was necessary to establish procedural unfairness or a breach of natural justice. He observed, correctly, at para. 17, that the party seeking to pierce deliberative secrecy bears the onus, and that “this 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.”
[16] This conclusion is consistent with the law stated by the Supreme Court of Canada in Tremblay v. Quebec (C.A.S.), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952, at 966, that although “secrecy remains the rule”, “it 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.” The Court went on to suggest that this would be limited to “exceptional cases.” See also: Payne v. Ontario (Human Rights Commission), 2000 CanLII 5731 (Ont. C.A.), at para. 172.
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[25] The motion judge found that all appropriate internal documents were already included in the record and that the record should not include internal documents such as staff analyses or reports. In Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), 2019 BCCA 60, the British Columbia Court of Appeal stated at para. 49 that the principle of deliberative secrecy “grants protections to internal consultative processes that involve interactions between adjudicators who hear cases and other members of a tribunal, within specified parameters. Absent some evidence that a tribunal failed to follow the proper parameters, a court may not reverse the presumption of regularity of the administrative process: Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4 at paras. 52, 53, 55.” The motion judge’s finding regarding category (b) is consistent with the principle articulated in Eastside. . Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing
In Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing (Div Ct, 2021) the Divisional Court considered the appellate use of transcripts of evidence in an administrative context:[111] By governing legislation and at common law, the LAT may keep a transcript of proceedings, but is not required to do so: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 20(e); Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 6(3); 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579 (Div. Ct.), at para. 15; Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793, at paras. 75-76.
[112] Even so, the absence of a complete transcript of a hearing can result in a denial of natural justice if there is the “serious possibility” that it prevents an appellate court from being able to consider a ground of appeal. The issue is whether the record that is before the appellate court still permits it to properly dispose of the appeal. This is so, even if the tribunal promised to make a recording of the proceeding: Canadian Union of Public Employees, Local 301, at paras. 72, 81. The onus of demonstrating the serious possibility that a ground of appeal cannot be pursued lies on the appellant: 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), [2017] O.J. No. 2967 (Div. Ct.)(“Swazzees”), at para. 15(d).
[113] Moreover, it is not enough simply to raise the mere possibility of prejudice from the failure of the record; hypothetical or speculative possibilities of prejudice do not suffice: Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 (Div. Ct.), at para. 8. This aligns with the principle that where a breach of procedural fairness is “inconsequential, trivial or merely technical in nature”, a request for a rehearing may properly be denied: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, at paras. 66-67. In other words, something more than a mere generalized claim of prejudice is required: Aliai v. Canada (Minister of Citizenship and Immigration), 2017 FC 82, at para. 23.
[114] Aspects of an appeal or the record on appeal can obviate the need for a full transcript. Where the right of appeal is limited to questions of law, the absence of a transcript of evidence is unlikely to deprive parties of the ability to argue a ground, particularly when the tribunal has provided full reasons for its decision: Billion v. Vaillancourt, 2016 ONSC 5820 (Div. Ct.), at para. 7; 554846 Ontario Ltd. (c.o.b. as the Wine Cellar U-Brew) v. Ontario (Alcohol and Gaming Commission), [2004] O.J. No. 438 (Div. Ct.), at para. 2. Prejudice from gaps in the recording of evidence can be compensated for by evidence summarized in submissions from a party in support of its position: Swazzees, at para. 15(c).
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