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Administrative - Control of Process. Derenzis v. Gore Mutual Insurance Co.
In Derenzis v. Gore Mutual Insurance Co. (Div Ct, 2025) the Divisional Court dismissed a LAT SABS joint appeal-JR (Yatar), here where an issue was the admission in evidence of allegedly privileged affidavit "information and internal Tribunal documents that the affiant obtained as a Tribunal adjudicator".
Here the court considers the LAT's jurisdiction to make "non-dissemination and destruction orders" regarding offered evidence - which is an wide exploration of what I consider to be administrative 'administrative plenary jurisdiction' - including open court, equitable, abuse of process, control of process, record creation, that drawn from statutes (TARA, SPPA), and even more:Legal Framework
[81] Section 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”.
[82] Section 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 CanLII 14309 (ON CA), 75 O.R. (3d) 383 (C.A.), at para. 8.
[83] Turning 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”.
[84] The 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.
[85] Under 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. [86] The 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. [87] In 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.
[88] These confidentiality orders may be filed with the Superior Court and are enforceable: TARA, s. 5.
[89] Reference 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 CanLII 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. [90] In 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.
[91] The court relied on Botbyl v. Heartland Farm Mutual Inc., 2023 CanLII 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.
[92] The 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.
[93] The 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.
[94] The 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 ... .”
[95] After 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.
[96] Other tribunals have made orders to control their own process to prevent its abuse.
[97] In 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.
[98] In Ontario Public Service Employees Union (Fortin) v. Ontario, 2017 CanLII 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.
[99] In JP v. Ontario (Health Insurance Plan), 2005 CanLII 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
[100] Statutory tribunals are specialized tribunals dealing with specialized fields and discrete issues and have jurisdiction to control their own processes.
[101] The 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 CanLII 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.
[102] It 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.
[103] In 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.
[104] The 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.
[105] The 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.
[106] The Tribunal has the right to control its own process and record.
[107] The 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.
[108] Alternatively, 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.
[109] As stated above, the sealed documents will remain sealed. . Jamali v. Economical Insurance Company
In Jamali v. Economical Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed a joint appeal-JR proceeding, here from a LAT decision holding that the appellant-applicant was "not catastrophically impaired and is not entitled to an income replacement benefit".
Here the court considers SPPA s.25.0.1 ['Control of process']:[7] Multiple procedural issues arose throughout the hearing in respect of which the Vice-Chair made orders under s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Section 25.0.1 provides that a tribunal has the power to determine its own procedures and practices and may, for that purpose, make orders with respect to the procedures and practices that apply in any particular proceeding and to establish rules under s. 25.1 of the SPPA.
....
[33] ... The Tribunal has the authority to determine its own procedures and practices, to make rules governing its practices and procedures, and to make orders with respect to the practices and procedures that apply in any particular proceeding: SPPA, s. 25.0.1.
[34] The Licence Appeal Tribunal Rules set out procedural requirements and rules governing motions and hearings before the Tribunal. The Licence Appeal Tribunal Rules permit the Tribunal to vary or waive the application of any of its rules or procedures on its own initiative except where to do so is prohibited by legislation. The Rules also permit the Tribunal to make orders or give directions in a proceeding to control its own process or to prevent abuse of its process.
[35] There is no indication the hearing was conducted in a manner inconsistent with Ms. Jamali’s expectations. The SPPA and the Licence Appeal Tribunal Rules afford the Tribunal broad discretion to control its own procedures. The rulings made by the Vice-Chair and the procedures adopted by him are owed a significant amount of deference. There was no procedural unfairness in the conduct of the hearing. I would not give effect to this ground of appeal. . Walters v. Centurion Property Associate Inc.
In Walters v. Centurion Property Associate Inc. (Ont Divisional Ct, 2024) the Ontario Court of Appeal considers the LTB's control of process jurisdiction, particularly as it relates to case management hearings and expeditious procedures:[26] The LTB has the authority to control its own process in accordance with s. 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA") and its Rules. The RTA permits the LTB to conduct inquiries it considers necessary before, during, or after a hearing and to question any person concerning the dispute. The RTA does not restrict the LTB's ability to control its process, other than to direct that the LTB adopt the most expeditious procedures that allow for a fair process: s.183.
[27] The LTB's authority to control its own process includes the ability of its members to ensure that its hearings, in accordance with s. 183 of the RTA proceed as expeditiously as possible without compromising fairness. This includes a member's ability to interrupt a party, provide direction to ensure that the hearing is conducted in an efficient manner, define, and narrow the issues to be decided, limit the evidence and submissions on any issue where there has been full disclosure, and question parties to focus the issues and the related evidence on relevant matters: See the SPPA and the RTA. . Govedaris v. McIlquham
In Govedaris v. McIlquham (Div Court, 2024) the Divisional Court dismissed a procedural fairness argument over the scheduling of the hearings of two LTB applications on the same day (though the second became moot as a result of the decision on the first):Was it a breach of procedural fairness to hear both applications together?
[19] There was also no breach of procedural fairness in the Board’s decision to proceed with both applications at the September 27, 2023 hearing.
[20] Section 183 of the RTA directs the Board to “adopt the most expeditious method of determining the questions arising in a proceeding that affords all persons directly affected by the proceeding an adequate opportunity to know the issues and to be heard on the matter.” In this case, as the Board member noted, the disposition of the jurisdiction application could have been determinative of the application alleging the appellant was illegally locked out. If, as it found, the RTA did not apply, the Board did not have jurisdiction to determine the issues in the other application.
[21] In deciding to hear the applications together, the Board member did not err by failing to consider prejudice to the appellant. During the hearing, the appellant advised the Board member that he had asked the Board to join the two applications. The appellant also did not object to the Board proceeding with both applications on the date of the hearing.
[22] In all the circumstances, the decision to hear the two applications together was a reasonable exercise of the Board’s discretion to determine the appropriate procedure. It did not constitute a breach of procedural fairness. . Wright v. Hardit
In Wright v. Hardit (Div Court, 2024) the Divisional Court considered RTA s.183 ['Expeditious Procedures'] and generally a tribunal's authority to control it's process:[10] The level of procedural fairness required by a tribunal is context-specific. As set out in the s. 183 ['Expeditious procedures'] of the RTA, the LTB is obligated to adopt the most expeditious method of determining the questions arising in a proceeding that affords the parties with an adequate opportunity to know the issues and to be heard. It is “well settled that an administrative tribunal such as the [LTB] is entitled to control its own procedure and is entitled to deference on matters requiring the exercise of discretion, such as scheduling”: Riddell v.Huynh, 2019 ONSC 2620 (Div. Ct.), at para. 43. . Yan v. 30 Forensic Engineering Inc.
In Yan v. 30 Forensic Engineering Inc. (Div Court, 2023) the Divisional Court reviewed both the administrative/SPPA 'control of process' and evidence jurisdiction, here in an HRTO context:[32] The HRTO has significant power to control its own process: see ss. 25.0.1 and 25.1.(1) of the Statutory Power Procedures Act, R.S.O. 1990, c. s.22 (“SPPA”). It can make rules to govern the practice and procedures before it so as to offer the parties before it, the best opportunity for a fair, just, and expeditious resolution of the merits of an Application: see s. 45.8 of the Code. That authority allows the HRTO to adopt practices and procedures that are an alternative to traditional adjudicative or adversarial procedures. The HRTO is also not bound by the strict rules of evidence; it has a broad discretion to admit relevant evidence, including hearsay, even if that evidence would not be admissible in a court: see s. 15(1) of the SPPA. . Donatelli-Venneri v. Stern Landesman Clark LLP
In Donatelli-Venneri v. Stern Landesman Clark LLP (Div Court, 2023) the Divisional Court considered an assessment officer's control of process, which they exercised by twice excluding the appellant from the hearing room for "unruly and disruptive behaviour". This case, which was a second appeal, also involved the first appeal judge muting the audio of the appellant at an electronic hearing:[21] In his reasons on the merits, Myers J. details the circumstances that led to his muting Ms. Donatelli-Venneri. In essence, Myers J. gave Ms. Donatelli-Venneri repeated directions to focus on the allegations of error by the Assessment Officer. Instead of heeding these directions, Ms. Donatelli-Venneri continued to argue an issue that was clearly irrelevant to the appeal. Myers J. gave Ms. Donatelli-Venneri an explanation as to why he considered the issue irrelevant, and she became more aggressive and heated in her submissions on the irrelevant point. As a result, Myers J. instructed the Registrar to mute Ms. Donatelli-Venneri’s line and end her submissions. In doing so, he highlighted the court’s responsibility to control its own process.
[22] In Hodder v. Lindhorst, 2016 ONCA 42, the Ontario Court of Appeal affirmed that where a litigant is disruptive, a judge is entitled to have them removed from the courtroom. Since the appeal was not held in person, Myers J. could not have her removed from the courtroom. The equivalent tool in a teleconference hearing is to mute the litigant’s line.
[23] While it is obviously not conducive to the appearance of justice to silence litigants in this manner, Myers J. was correct when he stated that a judge has an obligation to control their own process. If litigants refuse to abide by instructions from a judge concerning their submissions or their behaviour, court hearings can be hijacked in a way that can cause real harm to the administration of justice. In this case, Myers J. had been very clear with Ms. Donatelli-Venneri about why she should cease arguing the point she was arguing. Instead of heeding this direction, she continued to press the point in an aggressive and heated manner. In view of this, Myers J. was entitled to take the steps he needed to in order to end her oral submissions. As Myers J. noted, he had extensive written material from the Appellants setting out their position on the appeal.
....
[28] The Appellants submitted that Myers J. erred in failing to allow their appeal on the basis that the Assessment Officer excluded Ms. Donatelli-Venneri from the courtroom. Given Ms. Donatelli-Venneri’s disruptive behaviour before the Assessment Officer, Myers J. made no error when he found that the Assessment Officer’s actions were justified on the basis that she had the obligation to control her own process. . Sternberg v Ontario Racing Commission
In Sternberg v Ontario Racing Commission (Div Ct, 2008), the applicant lawyer sought to quash a decision that he be barred from appearing before the Commission until he apologized for alleged misconduct. The court application was grounded in bias as the Commission panel making the misconduct finding included two of the original members whom he is alleged to have offended, and because the reasons in the contempt decision were prepared before the hearing was conducted (and as well mistated the fact that he had not apologized).
The application was allowed for these reasons, and additionally because the 'misconduct' hearing was essentially a contempt hearing, which jurisdiction resides with the Divisional Court [SPPA s.13(1)(c)] and - at least with respect to professional discipline, the Law Society - not the Commission. As well, the applicant was denied the oppourtunity to make submissions as to penalty.
. Dai v. Presbyterian Church in Canada
In Dai v. Presbyterian Church in Canada (Ont Div Ct, 2013) the court held that a tribunal's authority to control it's own processes extended to the ability to declare an applicant a vexatious litigant and bar him from commencing future proceedings before it without the consent of the tribunal. The court did not address which specific SPPA provision grounded this authority, nor whether it was a general SPPA authority or one that required s.25.1 rule-making by the tribunal - which is unfortunate given the several potential statutory sources for such authority.
. Hutchinson v. Aviva General Insurance Company
In Hutchinson v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT ruling where the appellant sought (and was denied) conversion of the oral hearing to written format:[25] It has long been an axiom of administrative law that specialized tribunals are best placed to select among available procedural options based on their balancing of the competing interests of expedition, cost-effectiveness, and full participation: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 27.
[26] The LAT retains the following powers by virtue of these provisions of the Statutory Powers Proceedings Act, R.S.O. 1990, c. S.22 (SPPA):a. to determine its own procedures and practices, and for that purpose to make orders with respect to the procedures and practices that apply in any particular proceeding: s. 25.0.1;
b. to make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes: s. 23(1); and
c. to make orders or give directions at an oral or electronic hearing as it considers necessary for the maintenance of order at the hearing: s. 9(2). [27] In considering procedural fairness at the administrative tribunal level in Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810 (Div. Ct.) at para. 18, this court endorsed the following guidance from Sound v. Fitness Industry Council of Canada, 2014 FCA 48, [2015] 2 F.C.R. 170 at para. 42:[…] whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. [28] The Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (LAT Rules) contain a number of sections which address procedural fairness, accommodation, motions, adjournments and the effective and efficient resolution of disputes. These include:Rule 3.1 - the liberal interpretation and application of the LAT Rules, which may be waived, varied, or applied to facilitate a fair, open, and accessible process and to allow effective participation by all parties, whether represented or not; to ensure efficient, proportional, and timely resolution of the merits of the proceedings; and to ensure consistency with the governing legislation and regulations;
Rule 7 - accommodation of parties, representatives and witnesses for Ontario Human Rights Code-related needs;
Rule 15 - motions, including the contents of a motion; the timing of a motion; serving and filing a motion; and when the motion may be heard by the LAT; and
Rule 16 - adjournments, including when and how they may be made and when oral requests may be made. Analysis
The Hearing
[29] I have scrutinized the transcript of proceedings, paying particular attention to passages at pages 28, 42, 49, 54, 58, 59 and 60 which the Appellant contends demonstrate bias on the part of the adjudicator.
[30] I do not agree that the conduct of the hearing shows any bias on the part of the adjudicator. As well, the Appellant has failed to establish that she has been denied natural justice or procedural fairness.
[31] On the contrary, the adjudicator was eminently fair to the Appellant during the hearing:a. she agreed to entertain the short-served motion;
b. she invited the Appellant to tender medical evidence which had not formed part of the motion materials;
c. in an effort to accommodate the Appellant’s condition, she canvassed several options for how the matter might proceed as scheduled;
d. she afforded counsel the opportunity to consult with his client and with senior counsel from his firm;
e. she allowed counsel ample opportunity to give submissions; and
f. she permitted counsel to explain the dilemma he faced in not being able to obtain instructions to proceed. . North Elgin Centre Inc. v. City of Richmond Hill
In North Elgin Centre Inc. v. City of Richmond Hill (Div Court, 2023) the Divisional Court considers a tribunal's [the Ontario Land Tribunal] jurisdiction to control it's own process:[16] Similarly, the record does not support NEC’s allegation of a reasonable apprehension of bias. After its recusal motion was rejected, NEC refused to participate in the hearing and instead brought repetitive motions, conducted cross-examinations in a dilatory manner, failed to give notice that it would not lead evidence at the Phase 2 hearing, and ignored the procedural directives of the Tribunal. A tribunal is entitled to control its own process and to take steps to require a litigant to behave in a civil manner: Di Blasi v. Regional Municipality of York, 2022 ONSC 7104 (Div. Ct.), at para. 38. The Tribunal’s efforts to control the proceeding and rein in NEC’s conduct does not mean that it was biased. . Di Blasi v. York (Regional Municipality) [for case cites see the link]
In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court held that there was no tribunal member bias where the tribunal excluded a party, who was represented by counsel, for portions of an administrative hearing due to their disruptive behaviour:[37] The appellant argues that the Tribunal’s treatment of him during – including: excluding him from a portion of the hearing, giving him peremptory directions, cutting him off when he was speaking, and permitting the allegedly unfair cross examination on his character and truthfulness, created an air of oppression giving rise to a reasonable apprehension of bias.[10]
[38] I do not accept this argument. The Tribunal is entitled to control its own process, and when a litigant before it behaves badly, it is entitled to take steps – including stern steps – to require the litigant to behave in a civil manner, respectful of the Tribunal’s control over its own process. The appellant was treated quickly by the Tribunal in response to his own rudeness and unruliness. The Tribunal’s response was measured and reasonable and enabled the hearing to continue on a reasonable schedule to its conclusion.
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