The Lawyers Weekly - December 9, 2011

MIS S I N G

PI ECES

Administrative bodies and the
deliberative secrecy doctrine

disclosure embodies a debate between
fair, open and accessible government and
the efficiency and independence of its
administrative agencies. The Supreme
Court of Canada in Tremblay v. Quebec
(Commission des affaires socials), [1992]
S.C.J. No. 20, contrasted the content of
deliberation with the formal processes of
the administrative body and held that
deliberative secrecy protects the
former but not the latter. Even so,
the secrecy can be lifted “when the
litigant can present valid reasons
for believing that the process fol-
lowed did not comply with the
rules of natural justice.”
In Ellis-Don Ltd. v. Ontario
(Labour Relations Board), [2001]
S.C.J. No. 5, the Supreme Court
explained that deliberative secrecy
safeguards the independence of
administrative adjudicators and
ensures administrative consistency by
protecting the consultative process
between the adjudicators who have heard
the case and the members who have not.
It held: “Without such protection there
could be a chilling effect on institutional
consultations.” The Supreme Court
acknowledged a presumption of regular-
ity for administrative decision makers
that, without evidence to the contrary,
protects deliberations.

Of course, this concern for the administrative body must be balanced off against the interest of parties seeking to challenge the fairness of a decision

SHEA
COULSON

See Secrecy Page 15

This year’s Administrative Law Con-
ference put on by the B.C. Continuing
In light of increasing concerns
in the administrative law bar
about the high level of deference given
by courts to tribunals and recent judi-
cial comments, such as in Brar v. Col-
lege of Veterinarians of British Colum-
bia, [2011] B.C.J. No. 267, that “the
discretion of the court to order a deci-
sion maker or tribunal to produce docu-
ments must — at minimum — be exer-
cised with great caution, only in
exceptional circumstances,” a clear and
sensible framework for challenging
claims of privilege based on deliberative
secrecy is essential. No court has so far
considered the issue in depth.