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Fairness - Equity. 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.
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