In recent decades, procedural fairness generally requires disclosure to the parties of the information that is before the decision maker. Otherwise, it is challenging for the parties to make meaningful submissions. Exceptions are few and far between. The case of Schuur v Sas, 2023 ONSC 2852 (CanLII), illustrates when exceptions may be desirable.
In that case two parents were involved “in contentious family law litigation concerning decision making, parenting and child support for the couple’s two daughters.” The registrant, a psychologist, conducted an assessment and recommended that it was in the best interests of the children for the father to have full custody of them. The complainant challenged the opinion seeking a copy of the entire registrant’s files, including video and audio materials. The family court Judge permitted the complainant to have access only in their lawyer’s office. That litigation was ongoing.
The parent complained to the registrant’s regulator about some of the actions of the registrant. The complaints screening committee dismissed the complaint. Both the screening committee and the appeal tribunal withheld much (96%) of the registrant’s file from the complainant. The complainant sought judicial review, including requesting a copy of the entire file so as to be able to participate fully in the complaints process.
The Court found that there was no lack of procedural fairness. The Court said that the disclosure obligations to complainants was less than that for registrants. Complainants have less to lose in the process. The tribunal had statutory discretion to limit disclosure. The tribunal was able to consider the interests of persons who were not parties to the complaint in making disclosure decisions. The tribunal could also consider that the complainant previously had access to much of the materials in their lawyer’s office in the family court litigation.
The Court also noted that it was reasonable for the tribunal to be concerned that the complainant would use the disclosure to undermine the integrity of the complaints and review process, that the disclosure included personal information that should not be disclosed, and that the disclosure would prejudice the family proceedings. In fact, the complaint could be viewed as a collateral attack on (or an attempt to circumvent) the order by the family court.
Disclosure of the materials before a tribunal can be limited in appropriate circumstances.