What can a tribunal do when one of its former members discloses to outsiders confidential information about its internal processes? The Court in Derenzis v Gore Mutual Insurance Co., 2025 ONSC 2732 (CanLII) says: “quite a lot”.
A former adjudicator for the Licence Appeal Tribunal (LAT) disclosed internal LAT documents to a law firm that appeared frequently before it. The documents contained legal advice from an in-house counsel to LAT and policy documents about internal consultation procedures for certain challenging types of decisions such as adjournments, difficult hearing participants, and reconsideration of decisions. The law firm filed an affidavit from the former adjudicator (who had since been hired as a paralegal by the firm) containing the documents and asserting that there was institutional bias by LAT.
LAT excluded the evidence on both technical grounds (it constituted inadmissible reply evidence) and because it breached solicitor-client privilege and deliberative privilege. Deliberative privilege protects the administrative process of decision making (such as permissible consultation about policy issues with those who are not on the panel) in addition to the discussions of the panel members making a decision. LAT also ordered that the internal information be kept confidential and that all parties with possession of the documents destroy all copies.
The party filing the affidavit challenged the ruling, arguing that an exception to the deliberative privilege (objective grounds to believe that the tribunal process breached procedural fairness) applied. It also argued that LAT did not have the jurisdiction to make the order which was akin to an injunction. The Court disagreed, finding that the criteria for the exception were not present. In addition, the order made by LAT was authorized by the principle of abuse of process, the broad powers given to tribunals under the Statutory Powers Procedure Act, and the tribunal’s own enabling legislation. The Court did suggest that, when making such orders, tribunals should order the sealing of the information to enable a challenge of the ruling to court, before requiring any permanent destruction of documents.
Confidential tribunal documents can be protected from leaks.