The Divisional Court Reiterates the Importance of Deliberative Secrecy
Why this decision matters
Can you obtain the notes of a judge or adjudicator when alleging bias? This issue was recently addressed by the Divisional Court in the administrative context in Grogan v Ontario College of Teachers, 2023 ONSC 2980. Deliberative secrecy protects against the disclosure of how and why decision-makers reached their decision. In concluding that the notes of a former adjudicator were not producible, the Court declined to waive deliberative secrecy because there was no compelling evidence of a breach of natural justice.
Nearly ten-years ago, a teacher (“the Member”) was prosecuted by the Ontario College of Teachers (the “College”) for alleged professional misconduct. Following a nine-day hearing, the Discipline Committee determined that the Member’s license should be revoked. The Divisional Court subsequently dismissed the Member’s appeal.
In 2022, the Member brought a motion alleging that she had uncovered new evidence demonstrating a reasonable apprehension of bias on the part of the Discipline Committee. Integral to the Member’s motion was an affidavit from one of the former panel members (“the Former Panel Member”) claiming that the other panelists refused to consider the issue of anti-black racism during deliberations. Importantly, the Former Panel Member resigned from the Discipline Committee before the hearing was complete or a decision rendered. The Member brought a related motion seeking production of the Former Panel Member’s notes taken during the Discipline Committee hearing since they were no longer in the Former Panel Member’s possession.
The Court concluded that the Former Panel Member’s notes were not producible. As a threshold point, the Court determined that the Divisional Court did not have jurisdiction to make the order sought under any applicable rule or legislation.
Moreover, the Court held that the notes were protected by deliberative secrecy privilege. The Court reiterated important principles pertaining to deliberative secrecy, such as it being a “core component of the constitutional principle of judicial independence”, and that it promotes “collegial debate and the finality of decisions”. The Court also reiterated the importance of this privilege in the context of administrative tribunals:
Deliberative privilege attaches to all matters which are at the heart of or integral to the decision making process since the purpose of the privilege is to prevent the decision making process from being penetrated. Notes made by a board member during a proceeding for the purpose of assisting the member to reach a decision and prepare reasons are integral to the decision making process and are therefore protected by deliberative privilege, and are not compellable.
The Court emphasized that the bar to lift deliberative secrecy is high. It can only be lifted where there is sufficient evidence of natural justice concerns. The test requires “some basis for a clearly articulated and objectively reasonable concern that a relevant legal right may have been infringed”.
In this case, the Court found that the evidence contained in the Former Panel Member’s affidavit was “vague and speculative”. The Court was also concerned with the Former Panel Member’s failure to state with any particularity the basis for her belief that the other panel members demonstrated bias towards the Member, noting her “affidavit [did] not state when, how or why she came to believe the serious allegations to which she depose[d]”.
The Court also rejected the Member’s argument that deliberative secrecy can be waived by the decision-maker unilaterally by any adjudicator. The Court emphasized that deliberative secrecy not only exists to protect adjudicators, but more broadly “to protect the integrity of the judicial system as a whole”. Ultimately, to permit the Former Panel Member to unilaterally waive the deliberative secrecy attached to her notes would “defeat the whole concept of judicial immunity”.
This decision serves as a reminder of the high evidentiary burden required to lift deliberative secrecy. The courts will not be persuaded by mere allegations of bias. Rather, it will require compelling evidence to justify such an exceptional remedy, ideally corroborated by other sources.
 The Ontario College of Teachers was represented by Shane D’Souza and Alexa Jarvis at McCarthy Tétrault.
 Grogan v Ontario College of Teachers, 2023 ONSC 2980 (the “Decision”) at para 16, citing Laval v. Syndicat de l’enseignement de la region de Laval, 2016 SCC 8, at para 57 and Agnew v. Ontario Association of Architects (1987), 64 O.R. (2d) 8, 1987 CanLII 4030 (Div. Ct.).