Simon's Megalomaniacal Legal Resources

Evidence - Privilege - Adjudicative (aka Deliberative)

. Payne v. Ontario Human Rights Commission

In Payne v. Ontario Human Rights Commission (Ont CA, 2000) the Ontario Court of Appeal (Sharpe JA) considered an appeal from a evidentiary motion during a JR of a denied HRC application, this where the "principal issue ... is whether the appellant is entitled to full disclosure and production of all facts, arguments and considerations that were presented to the Commission when it considered her complaints."

Here the court consider 'deliberative secrecy' (aka 'deliberative immunity or privilege') [para 172 is oft-quoted]:

(ii) Deliberative Secrecy

[167] A second limit on the right to resort to a r. 39.03 examination arises from the doctrine of deliberative secrecy. Several cases subsequent to Canada Metal, supra, have dealt with the problem posed by examination of tribunal members or senior officials such as registrars who are privy to the tribunal's decision-making process. These authorities indicate that additional considerations must be taken into account with respect to r. 39.03 examinations in the administrative law context in view of the doctrine of deliberative secrecy. The point was dealt with in Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 at 14 (Div.Ct.) and in Ellis-Don, supra, holding that the prima facie right identified in Canada Metal is subject to the qualification that an examination not be used to delve into the actual decision-making process of the tribunal. In Agnew, supra, Campbell J. identified a variety of purposes underlying the doctrine of deliberative secrecy. First is the practical concern that if no limits were imposed, tribunal members would be exposed to unduly burdensome examinations and "would spend more time testifying about their decisions than making them". A second reason is the need for finality. The decision should rest on the reasons given and not on the success or failure of a cross-examination. Third is the need for a shield to protect the process of debate, discussion and compromise inherent in collegial decision-making.

[168] However, it has also been held on the highest authority that limitations on the right to conduct examinations designed to protect the interests of tribunal members must be balanced with the right of the citizen who has been affected by the tribunal's decision to effective judicial review. When applying the principle of deliberative secrecy to protect the integrity of the decision-making process, the courts must take into account the fact that administrative decisions are subject to the inherent power of judicial review. In this regard, a distinction has been drawn between the deliberations of administrative and judicial officers. The deliberative secrecy of administrative decision-makers is not absolute and must yield, where necessary, to the certain overarching principles. As was pointed out by Gonthier J. in Tremblay v. Québec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952 at 965–66, an allegation that the right to natural justice has been infringed may require scrutiny of the decision-making process. Tribunal members do not have an unqualified right to shelter their decision-making process from scrutiny:

Additionally, when there is no appeal from the decision of an administrative tribunal, as is the case with the Commission, that decision can only be reviewed in one way: as to legality by judicial review. It is of the very nature of judicial review to examine inter alia the decision maker's decision-making process. Some of the grounds on which a decision may be challenged even concern the internal aspect of that process: for example, was the decision made at the dictate of a third party? Is it the result of the blind application of a previously established directive or policy? All these events accompany the deliberations or are part of them.

Accordingly, it seems to me that by the very nature of the control exercised over their decisions administrative tribunals cannot rely on deliberative secrecy to the same extent as judicial tribunals. Of course, secrecy remains the rule, but 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.

[169] In the present case, the doctrine of deliberative secrecy must be taken into account. The appellant does not seek to examine a member of the Commission as to confidential discussions with other commissioners. She does, however, seek to examine a senior official, privy to the deliberations of the Commission, and to obtain disclosure of facts and arguments that were put before the commissioners by senior staff members and considered by the commissioners in determining the fate of her complaint. I note, however, that the application of deliberative secrecy to these proceedings is not without difficulty. The commissioners apparently conduct their discussions at the same time they entertain submissions and input from staff members and it would seem difficult to identify a discrete, deliberative phase of the process. In view of that practice, it seems to me that the claim of protection for deliberative secrecy has considerable less force than in cases where tribunal members actually retire to consider the case in private. This factor must be added to what was said in Tremblay regarding the qualified protection accorded deliberative secrecy in the administrative law setting in determining the extent to which the Commission can shelter its process from disclosure.

(iii) Factual Foundation

[170] A difficult and delicate issue is the nature of the factual threshold a party must satisfy to conduct a r. 39.03 examination in support of an application for judicial review. I do not accept the argument advanced by the Commission that it is necessary in all cases to establish a "reasonable evidential foundation". Nor do I agree with my colleague Abella J.A.'s conclusion that there is a "heavy onus" or that the party seeking an examination must provide "reasonable, reliable, relevant evidence" to meet the "high threshold". In my view, language of this kind is not apt for a variety of reasons. First, it is inconsistent with Canada Metal, supra, and a long line of cases that have followed: see for example, Fort Norman Explorations Inc. v. McLaughlin (1982), 1982 CanLII 2086 (ON SC), 36 O.R. (2d) 787 (H.C.J.); Iona Corp. v. Aurora (Town) (1991), 1991 CanLII 7278 (ON SC), 3 O.R. (3d) 579 (Gen.Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291 (Gen.Div.). Second, there is a distinct risk that if the standard is expressed in these terms, resort to r. 39.03 would become virtually redundant. Simply put, an applicant for judicial review should not have to prove his or her case before securing access to the very process designed by the Rules of Civil Procedure to adduce evidence. It is also my view that to pitch the test so high in a case such as the present one would be inimical to the inherent power of judicial review and the importance of having a full and accurate record of what transpired before the decision-maker. To fulfil their constitutionally protected mandate of ensuring that statutory procedures are followed in a manner that accords with the principles of natural justice, the superior courts must afford litigants adequate procedures to ensure that all relevant facts are presented. Accordingly, it is sufficient if the proposed examination is focussed on facts relevant to an issue properly raised by way of judicial review. I hardly need to add that facts relevant to an issue properly raised by way of judicial review is a very specific and narrowly circumscribed classification.

[171] There are, no doubt, additional factors that come into play where the examination will impinge upon deliberative secrecy. I do not doubt the importance of the doctrine of deliberative secrecy nor do I question the utility of protecting statutory decision makers from unduly burdensome examinations. However, as stated in Tremblay, supra, against those interests must be balanced the right of the individual to fairness and natural justice. In my view, requiring the applicant for judicial review to satisfy a "heavy onus" by providing "reasonable, reliable, relevant evidence" would effectively deny access to r. 39.03 to anyone who was not already in a position to prove his or her case. I do not agree that such a standard would achieve an appropriate balance. In the case at bar, the motions judge referred to the need to establish a "reasonable evidentiary foundation": see Bettes v. Boeing Canada/de Havilland Division (1992), 1992 CanLII 7789 (ON SC), 10 O.R. (3d) 768 (Gen.Div.). Brown and Evans, supra, at § 6:5620 say perhaps ambiguously that the examination of a decision-maker will be allowed if "a certain threshold of evidence is met". In Waverley (Village) v. Nova Scotia (Minister of Municipal Affairs) (1994), 1994 NSCA 58 (CanLII), 129 N.S.R. (2d) 298 at 303 (C.A.) Freeman J.A. suggested the following standard:

... a proper evidentiary foundation must be created, generally by affidavit evidence, to establish that valid reasons exist for concern that there has been a want of natural justice or procedural fairness, or that the discretionary authority has been otherwise exceeded.

[172] In view of these authorities and in keeping with what was said in Canada Metal and Tremblay, 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.

. Bokhari v. Top Medical Transportation Services

In Bokhari v. Top Medical Transportation Services (Div Ct, 2025) the Divisional Court faced a JR, this against main and reconsideration decisions regarding HRTO applications which "alleged discrimination with respect to employment because of disability". Within the JR, the HRTO brought (and the court granted) two motions - one to quash summons and the other to strike part of the JR record.

Here the court considers 'deliberative secrecy' (akin - or identical - to 'adjudicative privilege' or 'adjudicative immunity'):

[35] Deliberative secrecy protects the decision-making process. It is a core component of judicial independence: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 57

[36] 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: Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), at para. 80; Grogan v. Ontario College of Teachers, 2023 ONSC 2980 (Div. Ct.), at para. 16.

[37] Under “the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions”: Summitt Energy, at para. 80.

[38] Deliberative secrecy “also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who have heard the case and the members who have not, within the rules set down in [Consolidated-Bathurst]. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency”: Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 53.

[39] Deliberative secrecy extends to internal communications and the administrative aspects of the decision-making process: Summitt Energy, at para. 79; Chestacow v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCCA 389, at paras. 33-34. However, the secrecy of the administrative decision-making is not absolute and will yield where there is an evidentiary basis to allege 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, at para. 168; Chestacow, at para. 34.

[40] The secrecy can be lifted if a litigant can show a “clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed… [I]n 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”: Payne, at para. 172.

. 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 this issue in the context of solicitor-client privilege:

[127] The Tribunal ordered the destruction and enjoined dissemination of the following portions of Dr. Kowal’s affidavit based on solicitor-client privilege:

a. Para. 6 regarding mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, interlocutory decisions and production requests, including production of log notes;

b. Para. 8 and Exhibit C: a memo from legal counsel setting out procedures to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal counsel; and

c. Para. 16 and Exhibit F: a bulletin authored by the Duty Team adjudicators and Vice Chairs on various topics.

[128] Solicitor-client privilege extends to communications where legal advice is sought or offered or where it is intended to be confidential and extends to government lawyers who provide policy advice and direction outside their legal responsibilities.

[129] As stated in Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, at paras. 19-21:

19 Solicitor-client privilege has been held to arise when in-house government lawyers provide legal advice to their client, a government agency: see R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565, at para. 49. In Campbell, the appellant police officers sought access to the legal advice provided to the RCMP by the Department of Justice and on which the RCMP claimed to have placed good faith reliance. In identifying solicitor-client privilege as it applies to government lawyers, Binnie J. compared the function of public lawyers in government agencies with corporate in-house counsel. He explained that where government lawyers give legal advice to a “client department” that traditionally would engage solicitor-client privilege, and the privilege would apply. However, like corporate lawyers who also may give advice in an executive or non-legal capacity, where government lawyers give policy advice outside the realm of their legal responsibilities, such advice is not protected by the privilege.

20 Owing to the nature of the work of in-house counsel, often having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if the circumstances were such that the privilege arose. Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered: Campbell, supra, at para. 50.

21 Where solicitor-client privilege is found, it applies to a broad range of communications between lawyer and client as outlined above. It will apply with equal force in the context of advice given to an administrative board by in-house counsel as it does to advice given in the realm of private law. If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is “in-house” does not remove the privilege, or change its nature.

[130] As stated in Pritchard, the fact that it is in-house counsel conveying advice does not remove privilege. However, owing to the nature of the work of in-house counsel having both legal and non-legal responsibilities, each situation must be assessed on a case-by-case basis to determine if privilege arose in the circumstances.

[131] The Tribunal is accorded considerable deference. Here, the adjudicator discussed the ambit of solicitor client communication with the framework of Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860.

[132] The Tribunal found that internal policies with respect to granting an adjournment is part and parcel of the tribunal’s functioning. It is reasonable to find that documents and information relating to discussions with in-house counsel are covered by solicitor-client privilege. The solicitor-client privilege extended to (i) mandatory instructions by legal counsel and Vice-Chairs to adjudicators on how to decide adjournments, production requests, including production of log notes and interlocutory decisions; (ii) a memo from the legal department setting out procedures on how to deal with adjournments and an internal bulletin by them to be followed when receiving requests for and deciding adjournments, including the requirement that the decision be reviewed by legal; and (iii) a bulletin on various topics.

[133] The decision as a whole is transparent, intelligible and justified. The Tribunal’s finding that the sections of the affidavit were protected by solicitor-client privilege was a reasonable exercise of the Tribunal’s authority to control its own processes.

. Derenzis v. Gore Mutual Insurance Co. [deliberative secrecy as opposed to privilege]

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 'deliberative secrecy':

[135] Deliberative secrecy grants the adjudicators the right to refuse to give evidence, but it does not prevent a member from voluntarily giving evidence: Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC), [1992] 1 S.C.R. 952. Its scope does not extend to administrative matters or policies and procedures set out in the affidavit filed. It does not protect the evidence, information or testimony related to the process.

....

[140] In Grogan v. Ontario College of Teachers, 2023 ONSC 2980 (Div. Ct.), the applicant sought to compel production of an adjudicator’s notes on the strength of an affidavit from a retired tribunal member who had served on the panel in the proceeding. The affidavit was admitted as evidence but was found to be vague and speculative.

....

Legal Framework

[147] In Tremblay, at p. 968, the Supreme Court held that administrative tribunals cannot rely on deliberative secrecy in the same manner as judicial tribunals. It can be lifted when a litigant believes that the process did not follow the rules of natural justice. In that case, the issues raised by the litigants did not deal with matters of substance or the “decision makers’ thinking”, but instead was directed at the formal process established to achieve consistency in its decisions. The matters dealt with the “institutional setting in which the decision was made and how it functioned, and second with its actual or apparent influence on the intellectual freedom of the decision makers”: at pp. 964-65.

[148] However, the Supreme Court was concerned that the consultation network could “impede the ability or freedom of the members of the tribunal to decide according to their consciences and opinions, or create an appearance of bias in the minds of litigants.” In that case, compulsory consultation created an appearance of a lack of independence, if not actual constraint, circumventing the will of the legislature, by seeking to establish a prior consensus among persons not responsible for deciding the case. In addition, “[t]here [were] other facts which support[ed] this conclusion of an apparent lack of independence”: at p. 975.

[149] In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 37, 282 D.L.R. (4th) 538, Cromwell J.A. (as he then was) discussed the Tremblay decision and confirmed that deliberative secrecy covers tribunals’ internal processes and means of assigning cases to adjudicators. In Tremblay, deliberative secrecy is related

not only to “matters of substance or the decision-makers’ thinking on such matters”, but also to matters relating to the “formal process established by the Commission to ensure consistency in its decisions.”… The party seeking to have the court lift deliberative secrecy with respect to the tribunal’s process of decision-making has a threshold to meet. As expressed by Gonthier, J. in Tremblay, the party must show that there are “valid reasons” for doing so. [Citations omitted.]

[150] In Grogan, the Divisional Court stated that:

[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.).

...

[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 in Grogan.]

[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”.

[151] In Shuttleworth, the court accepted evidence of institutional bias where the Executive Chair of the Tribunal interfered with an adjudicator’s decision. In that case, the adjudicator decided that the threshold of “catastrophic impairment” had not been met but later learned by an anonymous letter that before the decision was released, the Executive Chair had reviewed and reversed her determination. The applicant brought an application for judicial review of the adjudicator's decision. The Divisional Court found that:

a. The SLASTO Legal Services Unit generally sent decisions to the executive chair without assent or input from the adjudicator;

b. The adjudicator in this case did not request the review and was unaware of it until it had taken place;

c. There was no formal or written policy protecting the adjudicator's right to decline to participate in the review or to decline to make changes proposed by the executive chair;

d. A manual describing the tribunal's procedure made no reference to the voluntariness of peer review; and

e. The executive chair had power over the reappointment of adjudicators.

[152] The Divisional Court concluded that the circumstances gave rise to a reasonable apprehension of a lack of adjudicative independence and the decision was upheld by the Court of Appeal.

[153] In Bokhari v. Top Medical Transportation Services, 2025 ONSC 1208, Matheson J. was also dealing with an affidavit of a prior adjudicator that spoke of the adjudicators’ activities, the development of tribunal processes and case management, and development of standards. The court found that certain challenged portions of the affidavit were properly struck out as protected by deliberative secrecy.

[154] Matheson J. summarized the law in this area, and it is worth repeating here:

[35] Deliberative secrecy protects the decision-making process. It is a core component of judicial independence: Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 57.

[36] 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: Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.), at para. 80; Grogan, at para. 16.

[37] Under “the rule of deliberative secrecy, members of administrative tribunals generally cannot be required to testify about how or why they reach their decisions”: Summit Energy, at para. 80.

[38] Deliberative secrecy “also favours administrative consistency by granting protection to a consultative process that involves interaction between the adjudicators who have heard the case and the members who have not, within the rules set down in [Consolidated-Bathurst]. Without such protection, there could be a chilling effect on institutional consultations, thereby depriving administrative tribunals of a critically important means of achieving consistency”: Ellis-Don Ltd. v. Ontario (Labour Relations Board) 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 53.

[39] Deliberative secrecy extends to internal communications and the administrative aspects of the decision-making process: Summit Energy, at para. 79; Chestacow v. British Columbia (Workers’ Compensation Appeal Tribunal), 2023 BCCA 389, at paras. 33-34. However, the of the administrative decision-making is not absolute and will yield where there is an evidentiary basis to allege 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, at para. 168; Chestacow, at para. 34.

[40] The secrecy can be lifted if a litigant can show a “clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed ... [I]n 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”: Payne, at para. 172.

[155] Ultimately, the court in Bokhari found that the applicant had not met this threshold as the court found that there was no objectively sound argument that the applicant’s rights were infringed by the fact that there was a different internal policy that applied to his application that constrained the Adjudicator’s discretion: at para. 41.

[156] The court found at para. 42 that “[t]he applicant’s ‘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’: LifeLabs LP v. (Ontario) Information and Privacy Commissioner, 2022 ONSC 5751 (Div. Ct.), at para. 17.”