Deliberative Secrecy for Tribunals Reinforced

Since the decision of Agnew v Ontario Assn. of Architects (Div. Ct.), 1987 CanLII 4030 (ON SC), the principle of deliberative secrecy has been applied to tribunals. Recently, the Ontario Divisional Court has again held that the secrecy of the deliberations of tribunals should be safeguarded in almost all circumstances.

The facts in Grogan v Ontario College of Teachers, 2023 ONSC 2980 (CanLII), are both surprising and somewhat complex. A teacher’s certificate was revoked seven years ago for leveling serious, but groundless, accusations against a colleague. Appeal avenues were exhausted. The former teacher now sought to reopen the case on the basis of fresh evidence. On the application, the former teacher filed an affidavit from a former member of the discipline hearing panel, who had sat on the case (but who had ultimately not participated in the decision), suggesting that the other members of the panel might have been unduly influenced by regulatory staff in making their decision and for exhibiting possible bias. In fact, the former panel member had resigned from the panel shortly before the hearing concluded and had not actually participated in the deliberations and decision-making. The former teacher sought access to the former panel member’s notes (kept separately in the regulator’s files) to obtain details to support the former panel member’s concerns.

The Court concluded that it did not have jurisdiction to make the order sought. However, it also held that even if it had jurisdiction, it would have dismissed the application, articulated in a detailed analysis of an alternative ground, namely that the notes were protected by deliberative secrecy.

The Court noted that deliberative secrecy is a core component of adjudicative independence. “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 ….”

The Court reiterated that deliberative secrecy applies to administrative tribunals as well as to courts. Rare exceptions can be made where there is a valid reason for believing that there was a denial of procedural fairness. However, to succeed in applying the exception, a party must “meet the standard of a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”. The Court said:

In my view, Ms. Grogan [the former teacher] has not provided a sufficient basis to lift deliberative secrecy for natural justice concerns. Other than conjecture, the affidavit does not explain why [Ms. F.] [the former panel member] 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. F.] expected, on its own, is insufficient to support a conclusion that a College employee drafted the decision. [Ms. F.] was not present for closing submissions, deliberations after the hearing ended, and the drafting of the decision.

The Court found that the former panel member’s affidavit was “vague and speculative” and failed to state the basis of their belief. Years had passed since the events in issue. The absence of particulars meant that the allegations in the affidavit amounted to “conjecture”.

Of course, this requirement for specific evidence of procedural unfairness is difficult to meet in most circumstances.

The Court also rejected the submission that, since the former panel member was not present for the final deliberations, “the notes would not reflect the final decision-making process because [Ms. F.] was no longer on the panel by that time, [in an] attempt to minimize the extent to which production would intrude into deliberative secrecy.” The Court noted: “However, it is likely that if those notes were ordered to be produced, they would lead to further questions for both [Ms. F.] and the other adjudicators, requiring further intrusion into the deliberative process.”

The Court distinguished another case in which some access to deliberations were provided: Payne v Ontario Human Rights Commission, [2000] O.A.C. 357 (C.A.). In that case, a staff member who was present during the deliberations was permitted to be examined about what materials the staff member provided to the adjudicator. However, in the present case the information sought was from a member of the panel.

The Court also rejected the argument that the former panel member herself could waive the deliberative privilege:

Finally, while the Applicant argues that [Ms. F.] 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.” …

Interestingly, the Court did not comment on whether the existing affidavit by the former panel member breached the deliberative secrecy obligation.

This decision affirms the strong protections afforded to deliberative secrecy of tribunals.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.

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