Ontario’s highest court has reaffirmed the importance of the deliberative privilege protecting the internal workings and discussions of administrative tribunals. The decision relates to a challenge to the independence and constitutionality of the Licence Appeal Tribunal (LAT), which adjudicates Ontario’s no-fault statutory accident benefits.
A plaintiff who suffered injuries from a motor vehicle collision applied to LAT seeking statutory accident benefits from her insurer. LAT dismissed her applications. The plaintiff then sued the insurance company and others, alleging that LAT lacks adjudicative independence and is systemically biased. In support of her claim of institutional bias, the plaintiff sought production from LAT of some 400 records relating to her applications, including draft decisions and email correspondence between staff, counsel, and LAT adjudicators. Most of the documents consisted of correspondence supporting the daily deliberative work of the Tribunal’s adjudicators, as well as the administrative work supporting those deliberations.
In Derenzis v Ontario, 2026 ONCA 344, the Court held that the documents were not relevant or necessary for a fair hearing, especially since LAT was essentially a third-party to the litigation. The Court did not accept that the challenging party should be given access to a broad swath of internal tribunal documents in order to facilitate an argument of systemic bias.
Even though the Court found that the motion should be dismissed on those grounds, the Court went on to comment on the scope of deliberative secrecy, saying:
The scope of deliberative secrecy for administrative tribunals is the same as it is for courts. The case law makes clear that “secrecy remains the rule” in the administrative context…. It is also clear that “[d]eliberative secrecy extends to internal communications and the administrative aspects of the decision-making process”, to the extent these aspects bear on adjudication….
Specifically, the Court disagreed with the judge who made the initial ruling and who had stated “that deliberative secrecy applies more narrowly in the administrative context, attaching only to matters ‘that lie at the heart of the exercise of judgment or the deliberative process’”.
Regulators can continue to assume that internal documents related to adjudicative decisions are generally protected from disclosure.
