Background
Lucia Derenzis was injured in a 2015 motor vehicle accident and pursued statutory accident benefits from her insurer, Gore Mutual Insurance Company. Two applications before the Licence Appeal Tribunal (LAT) were decided against her, and those decisions were subsequently upheld by the Divisional Court. In a separate Superior Court action, Derenzis and co-plaintiff Joshua Da Silva sued Gore and numerous other defendants, but were barred from doing so in full by ss. 267.5 and 280(3) of the Insurance Act, which cap certain damages and give the LAT exclusive jurisdiction over no-fault accident benefits disputes.
To challenge those statutory barriers, the plaintiffs pleaded that s. 280(3) violates s. 96 of the Constitution Act, 1867 on the ground that the LAT is a “lawless” tribunal that has usurped Superior Court jurisdiction. They further alleged that the LAT’s lack of adjudicative independence disproportionately harms persons with disabilities, contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, and that the damages cap in s. 267.5 itself discriminates on the basis of disability.
In support of the institutional-bias allegation, the plaintiffs brought a r. 30.10 motion under the Rules of Civil Procedure seeking production of approximately 400 internal LAT records — including draft decisions and internal email correspondence — from Tribunals Ontario, a non-party. The motion judge granted the order, concluding that the records were relevant and necessary to a fair hearing of the constitutional challenge and that deliberative secrecy protecting most of the records should be displaced. Tribunals Ontario appealed.
The Court’s Holding
Writing for a unanimous panel, Rahman J.A. allowed the appeal and substituted an order dismissing the r. 30.10 motion. The court identified two categories of legal error in the motion judge’s decision. First, on relevance and materiality, the motion judge wrongly treated the LAT’s alleged lack of adjudicative independence as a material issue when, as a matter of substantive constitutional law, it is not. Adjudicative independence is irrelevant to the s. 96 analysis of what subject matter may be assigned to administrative tribunals, and the plaintiffs’ systemic-bias allegation did not amount to a pleading of discriminatory distinction on the basis of disability capable of grounding a s. 15 claim. Because proving the allegation would have had no bearing on the constitutional claims, it was not a material issue within the meaning of r. 30.10(1)(a), and the records were therefore not probative of any material issue.
Second, on fairness and necessity, the court held that the motion judge’s reasoning — that Charter challenges cannot proceed in a factual vacuum — was an impermissible framing that would allow any Charter claim to satisfy the r. 30.10(1)(b) threshold. This approach was irreconcilable with the settled principle that non-party production orders are exceptional, and it failed to account for Tribunals Ontario’s exposure to inconvenience and the tribunal’s presumptive independence. The court also rejected the finding that Tribunals Ontario’s interests were aligned with those of the Crown; as an arm’s-length body accountable to the Attorney General, it remained a true non-party with no stake in the litigation’s outcome.
On deliberative secrecy, the court addressed an error of law that, while not strictly necessary to resolve the appeal, warranted correction: the motion judge had wrongly stated that deliberative secrecy applies more narrowly in the administrative context. The court confirmed that the scope of deliberative secrecy for administrative tribunals is the same as for courts — secrecy remains the rule, and the protection extends to internal communications and administrative aspects of the decision-making process. The court also dismissed Tribunals Ontario’s fresh evidence motion, declining to treat a subsequent Divisional Court decision as evidence rather than legal authority.
Key Takeaways
- Under r. 30.10, a document must be probative of a material issue — one whose resolution would actually influence the outcome — not merely related to a factual dispute pleaded by the moving party; the motion judge’s duty is to assess materiality against the governing substantive law, not the pleadings alone.
- A general assertion that Charter rights are violated does not automatically satisfy the fairness/necessity condition for non-party production; courts must assess whether the specific records sought would actually advance the constitutional claim.
- Deliberative secrecy applies to administrative tribunals with the same breadth as it does to courts — it is not interpreted more narrowly in the administrative context, and it extends to internal communications and administrative aspects of the adjudicative process.
- An administrative tribunal that operates independently of government is a true non-party for r. 30.10 purposes; statutory accountability to the Attorney General does not equate to an alignment of interests with the Crown.
Why It Matters
This decision reinforces the exceptional character of non-party production orders under r. 30.10 and provides important guidance for litigants who seek internal records from administrative tribunals in constitutional challenges. By insisting that courts assess materiality against the actual requirements of the constitutional tests at issue — rather than simply accepting that a pleaded allegation creates a material issue — the Court of Appeal makes it substantially harder to use r. 30.10 as a vehicle for broad pre-trial discovery against tribunals.
The court’s clarification of deliberative secrecy is equally significant for tribunal law across Ontario. Confirming that the same robust protection available to courts applies equally to administrative decision-makers shores up the institutional independence of tribunals and limits the circumstances in which parties can obtain access to draft decisions, adjudicator correspondence, and other internal deliberative materials, even in the context of serious constitutional claims.