|
Evidence - Privilege - Adjudicative (Deliberative). Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] (though the case bears on JRs as well), here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court considers 'deliberative privilege' (aka adjudicative privilege), here where it is raised by a tribunal to resist appeal disclosure for the record:[29] The Agency raises the issue of deliberative privilege. However, it overstates its scope. Deliberative privilege covers internal documents, often prepared by the administrator’s staff, that individual decision-makers use to assist their deliberations in the case. For example, staff might prepare evaluations of the evidence, legal advice and recommendations for the individuals deciding the case, much like a law clerk does for a judge on a court. The individuals deciding the case might make personal notes setting out their tentative reflections. These sorts of things are covered by deliberative privilege.
[30] But deliberative privilege is not a device that can be used to withhold from the parties key evidence not otherwise available in the record or potentially decisive, new arguments unknown to the parties. Sometimes procedural fairness requires administrative decision-makers to disclose such matters, even though they are found in a document normally covered by deliberative privilege.
[31] In some cases, though, allegations about corruption or bad faith might be made. And some allegations of procedural unfairness can trigger concerns about the integrity of the decision-making. In cases like those, where there is an air of reality to the allegations, disclosure of material normally covered by deliberative privilege can be ordered: Tremblay, above.
[32] In this case, the Agency asserts deliberative privilege over a briefing note prepared by Agency staff. There is no indication it contains material of the sort that must be disclosed. As well, the notice of appeal does not allege grounds or relief that would require lifting the confidentiality associated with the briefing note.
[33] Disclosure of the briefing note also seems unnecessary in a situation like this: to the extent that the briefing note contained errors and the Agency’s decision relied on those errors, the errors will be apparent from the face of the reasons or will be apparent from a comparison of the reasons with the relevant evidence and law. . Grogan v Ontario College of Teachers
In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was unique as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "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".
In this quote the court considers legal and factual issues of deliberative 'secrecy' (aka privilege):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, 1987 CanLII 4030 (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, 2004 CanLII 66333 (S.C.), the applicant in a judicial review application of a decision of the Ontario Municipal Board brought a motion for production of an adjudicator’s notes. In dismissing the applicant’s motion on the basis of deliberative privilege, the court stated as follows (at para. 4(e)):Deliberative privilege attaches to all matters which are at the heart of or integral to the decision making process since the purpose of the privilege is to prevent the decision making process from being penetrated. Notes made by a board member during a proceeding for the purpose of assisting the member to reach a decision and prepare reasons are integral to the decision making process and are therefore protected by deliberative privilege, and are not compellable. [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, 1996 CanLII 4084 (F.C.), aff’d on appeal, [2000] 180 F.T.R. 313, 2000 CanLII 15487 (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, 2000 CanLII 5731 (C.A.), at para. 172, Sharpe J.A., for the majority, held that:... it seems to me that an applicant for judicial review who seeks to conduct an examination that will touch upon the deliberative secrecy of the decision maker must present some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed. I would emphasize that, in view of the importance of the principle of deliberative secrecy in the administrative decision-making process, examinations based on conjecture or mere speculation will not be allowed.
(Emphasis added.) [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, 1998 CanLII 8969 (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. . 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 exception to deliberative 'secrecy' (privilege):[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.
....
[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. . Air Passenger Rights v. Canada (Attorney General)
In Air Passenger Rights v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal touches on the nature of deliberative privilege in an administrative context:[45] Moving on to the documents that the applicant has characterized as the "“Withheld C-5 Urgent Debrief Call Documents”", the redacted portions in this document are subject to both solicitor-client and deliberative privilege as, in them, legal advice was sought and offered on an issue that was subject to later determination by the CTA. . Patel v. The Law Society of Ontario
In Patel v. The Law Society of Ontario (Div Court, 2022) the Divisional Court considered an issue of deliberative (aka 'adjudicative') privilege:[10] In any event, the Applicant would not be entitled to the production of case law, internal administrative precedents, or other sources that I&R Counsel might have relied upon in arriving at the decisions. To the extent that such documents were considered by I&R counsel in arriving at the decisions, the LSO’s internal memoranda or precedents are subject to deliberative privilege. In LifeLabs L.P. v. (Ontario) Information and Privacy Commissioner, 2022 ONSC 5751 (Div. Ct.), at paras. 15-17, D.L. Corbett J. found that the internal policy, precedents, and memoranda from staff to the Commissioner are covered by deliberative and/or adjudicative privilege and were not producible as part of the record of proceedings.
[11] Certain other documents that the Applicant seeks, such as previous decisions relating to undertakings or sharp practice, do not form part of the record of proceedings, and would not have to be produced, irrespective of the application of any privilege.
[12] In order to displace deliberative privilege, the Applicant must show “clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice or procedural fairness”: LifeLabs, at para. 15-17. In this case, the Applicant is dissatisfied with the material produced by the LSO because, in his view, it does not provide a legal basis for the dismissal of his complaints. Beyond that, however, the Applicant does not allege a breach of procedural fairness and has not articulated any basis for displacing either deliberative privilege. . LifeLabs LP v. Information and Privacy Commr. (Ontario)
In LifeLabs LP v. Information and Privacy Commr. (Ontario) (Div Court, 2022) the Divisional Court considers the rarely-argued issue of 'adjudicative privilege' (aka 'deliberative privilege'):Deliberative Privilege
[15] Sitting as a single judge of this court, Perrell J. reviewed principles of deliberative secrecy (or adjudicative privilege) as follows:[76] Under the doctrine or principle of deliberative secrecy, which promotes adjudicative independence, collegial debate, and the finality of decisions, a judge or an administrative tribunal adjudicator cannot be compelled to testify about the deliberations or the substance of the decision-making process or how or why a particular decision was reached by the court or administrative tribunal: Re Clendenning and Board of Police Com’rs for City of Belleville (1976), 1976 CanLII 696 (ON SC), 15 O.R. (2d) 97 (Div. Ct.); Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (H.C.J.); 156621 Canada Ltd. v. The City of Ottawa (2004), 70 O.R. (3d) 291 (S.C.J.).
[77] The substance of the decision-making process includes what material was considered or not considered by the adjudicator, whether the adjudicator pre-judged the matter, and the extent to which the adjudicator was influenced by the views of others: Agnew v. Ontario Association of Architects, supra, at p. 17.
[78] Deliberative secrecy would cover the involvement of independent counsel unless there was good reason and a factual foundation to believe that counsel transgressed the limits of fairness and natural justice: Rudinskas v. College of Physican and Surgeons of Ontario, 2011 ONSC 4819(Div. Ct.); Aronov v. Royal College of Dental Surgeons of Canada, [2001] O.J. No. 1927 (Div. Ct.); Stevens v. Canada (Attorney General), 2003 FC 1259.
[79] Deliberative secrecy extends to the administrative aspects of the decision-making process, including the assignment of the adjudicator(s) to particular cases: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2007), 2007 NSCA 37, 282 D.L.R. (4th) 538 at paras. 15-18 (N.S.C.A.); Tremblay v. Québec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952.
[80] Under the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), supra. In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra at para. 16, Cromwell, J.A., as he then was, noted that, although the principle of deliberative secrecy does not apply as strongly to administrative tribunals as to courts, the Supreme Court of Canada has confirmed that deliberative secrecy is the general rule for administrative tribunals.
[81] The testimonial immunity of deliberative secrecy for the administrative aspects of the decision-making process is not absolute and will yield where it is alleged that the right of natural justice has been infringed: Tremblay v. Québec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952; Payne v. Ontario (Human Rights Commission) (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315 (Ont. C.A.).
[82] The testimonial immunity of deliberative secrecy can be lifted if a litigant can show clearly articulated and objectively sound reasons for believing that the process did not comply with the rules of natural justice or procedural fairness: Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) supra; Payne v. Ontario (Human Rights Commission), supra; Agnew v. Ontario Association of Architects), supra, at p. 15.[7] I accept and adopt this summary.
|
