The Licence Appeal Tribunal (LAT) decision of Derenzis v. Gore Mutual Insurance Company, September 18, 2023 (unreported) raises the question of whether the Tribunal has jurisdiction to grant a civil remedy, in particular injunctive relief, and whether adjudicative privilege and deliberative secrecy attach to certain documents internally produced at the LAT. Applicant’s counsel filed affidavit evidence of a whistle blower from the LAT that addressed institutional issues of alleged bias and adjudicative interference.
The case is premised on reply submissions made for a reconsideration request; applicant’s counsel filed an affidavit sworn by a former LAT Adjudicator, Ms. Karina Kowal, who was working for his firm, Campisi LLP. Ms. Karina Kowal joined Campisi LLP after her contract with the LAT was not renewed and her affidavit made a number of allegations regarding the administration of the LAT and in particular, directives to adjudicators on handling matters involving certain law firms, and institutional bias.
Ms. Kowal documented internal consultations among adjudicators on legal and policy matters involving the exercise of adjudicative discretion and repeated alleged advice given by Tribunal Counsel to Adjudicators. This information was obtained during the course of Ms. Kowal’s appointment with the LAT and through conversations with members of the bar after her contract had ended. The affidavit contained several exhibits, including:
- Minutes of adjudicative team meetings that addressed topics including the assignment of adjudicators to cases with certain law firms;
- Minutes of adjudicative team meetings and “follow-up” notes that documented consultations on legal and policy matters involving the exercise of adjudicative discretion;
- Draft memorandum by LAT legal counsel;
- Hand-written notes by Ms. Kowal on adjudicative team meetings regarding consultations on legal and policy matters involving the exercise of adjudicative discretion;
- A LAT Duty Bulletin summarizing legal advice and internal consultations involving the exercise of adjudicative discretion; and
- A performance review of Ms. Kowal from 2021, the year her appointment ended, as well her handwritten notes from a review in 2017
The issues are distilled as follows:
- Whether solicitor-client privilege attached to certain portions of the affidavit and exhibits;
- Whether the doctrine of deliberative secrecy covered portions of the affidavit and exhibits;
- Whether Adjudicator McGee ought to be recused for bias; and
- Whether the Tribunal has jurisdiction to grant civil remedies, in particular injunctive relief?
Client-solicitor privilege
Adjudicator McGee held that solicitor-client privilege applied to certain potions of Ms. Kowal’s affidavit and exhibits. The Supreme Court decision of Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860 was cited in that all communication made within the framework of the solicitor-client relationship was privileged; this coverage extended to seeking legal advice from the solicitor by the client regardless of whether litigation was involved. Whether the privilege attached to communications depended on the nature of the relationship, the subject matter of the advice and the circumstances in which it was sought.
Adjudicator McGee reasoned that the Duty Bulletin was privileged as it summarized advice given by Tribunal Counsel and certain portions of the affidavit referenced advice given to adjudicators; these communications were made in the context of the solicitor-client relationship between Tribunal Counsel and their institutional client, the LAT.
Deliberative Secrecy
Deliberative secrecy was also found to cover certain portions of the affidavit and exhibits. Adjudicator McGee cited the recent decision of Grogan v. Ontario College of Teachers 2023 ONSC 2980 that held the doctrine of deliberative secrecy (also known as adjudicative privilege) prevented disclosure of how and why a decision maker reached a decision. And the Supreme Court case of Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29 was relied on in that the doctrine did not apply equally to administrative Tribunals as it did to judicial deliberations.
Adjudicator McGee also cited Summit Energy Management v. Ontario Energy Board 2012 ONSC 2753 at paragraph 15 that stated a judge or administrative adjudicator cannot be compelled to testify about their deliberations or the substance of the decision making process; the latter included what material was or was not considered, whether the matter was pre-judged and the extent to which the adjudicator was influenced by the views of others.
But the doctrine did not apply as strongly to administrative Tribunals and the immunity of the doctrine could be lifted if a litigant demonstrated objectively sound reasons for believing the process did not comply with the rules of natural justice (Cherbuni Metal Works LTd. V. Nova Scotia (Attorney General) (2007), 2007 NSCA 37 (CanLii) at paragraph 15).
Adjudicator McGee was not convinced that the affidavit of Ms. Kowal and its exhibits established an objectively reasonable concern that the LAT’s process failed to comply with the with the principles of natural justice; the materials did not indicate that these consultations deprived adjudicators o the freedom to decide matters independently. And although the word “directive” appeared in Ms. Kowal’s affidavit, it was not found in any of the exhibits Adjudicator McGee did specify that the affidavit explained the purpose of the directives was to consult during deliberations as assisting adjudicators in making decisions at case conferences and hearings, but there was nothing improper procedurally unfair about the Tribunal’s consultative process.
Recusal for bias
The adjudicator was not convinced that she should be recused for reasonable apprehension of bias. Applicant’s counsel argued there was an apprehension as Adjudicator McGee was personally named in one of the exhibits included in Ms. Kowal’s affidavit and she was seeking to supress evidence supportive of the applicant’s rights and prevent scrutiny.
It was reasoned that there was no rational connection between Adjudicator McGee authoring Ms. Kowal’s performance review as included in the Affidavit and any reasonable apprehension of bias. Accordingly, the applicant failed to rebut the strong presumption of decision-maker impartiality as required by the Supreme Court cardinal decision, Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLii 2 (SCC).
Injunctive Relief
Adjudicator McGee ultimately decided to strike certain portions of the affidavit and exhibits from the record, based on grounds of solicitor-client privilege and deliberative secrecy. However, she also ordered both counsel to destroy from their possession these identified documents.
Conclusion
The decision is troubling for a number of reasons. First, the affidavit of Ms. Kowal alleged that the LAT has practices in place with respect to certain law firms, and Campisi LLP in particular, and that certain adjudicators are assigned to cases that involve these firms. It was also alleged that there are directives in place for adjudicative decision making with respect to case conferences and hearings; this comes following the Divisional Court of decision of Mary Shuttleworth v. Licence Appeal Tribunal, 2018 ONSC 3790 in which a whistle-blower exposed that the Executive Chair interfered with a draft ruling on catastrophic impairment.
If the allegations here are true, that would mean the Tribunal potentially engaged in acts of undue economic interference against certain law firms. Unfortunately, the details of the affidavit were not repeated in the decision, so it remains unclear what exact practices and directives were in place at the LAT.
Second, the adjudicator may have incorrectly applied solicitor-client privilege; it may certainly be the case that the client receiving advice was Adjudicator Kowal, but in any event, the information she swore in the affidavit would mean that she waived any rights to privilege.
Third, the doctrine of deliberative secrecy may have been applied incorrectly in that Ms. Kowal was voluntarily waiving immunity; at present the doctrine was not invoked to prevent Ms. Kowal from being compelled to give evidence on her deliberations. Further, she was not the Hearing Adjudicator that this reconsideration stemmed from, meaning she was not being required to divulge reasons surrounding the underlying decision.
Fourth, the Tribunal seemingly granted the civil remedy of injunctive relief, which it does not have the jurisdiction to do. The Tribunal’s powers are derived from the LAT’s Common Rules of Practice & Procedure and Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; neither indicate jurisdiction for civil remedies. Interestingly, the order was also made without input or request from either of the parties. The ramifications are significant as the parties are now mandated to destroy evidence in an ongoing proceeding and may be held in contempt for their failure to do so.
It is likely that the appellate courts will have the final say here.
