Ontario Court of Appeal sets aside production order over hundreds of Licence Appeal Tribunal records

In proceedings arising from injuries sustained in a motor vehicle collision, the Ontario Court of Appeal set aside a Superior Court judge’s order requiring Tribunals Ontario to produce hundreds of internal records of the Licence Appeal Tribunal (LAT). 

The party injured during the Nov. 24, 2015, incident and her son-in-law – the respondent plaintiffs in Derenzis v. Ontario, 2026 ONCA 344 – initiated multiple proceedings in the underlying action. 

First, the injured plaintiff sought statutory accident benefits from her insurer, Gore Mutual Insurance Company. 

To resolve a dispute on the extent of her entitlement, the injured plaintiff filed two applications against Gore before the LAT. The LAT ruled against her in both applications. The Ontario Divisional Court affirmed the LAT’s decisions. 

In the underlying action, the plaintiffs also attempted to sue Gore and other defendants before the Ontario Superior Court of Justice. Sections 267.5 and 280(3) of Ontario’s Insurance Act, 1990, prevented them from doing so. 

In their statement of claim, the plaintiffs asserted that the cap in s. 267.5 violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms because it discriminated based on disability. 

The plaintiffs also alleged that s. 280(3) breached s. 96 of the Constitution Act, 1867, because the LAT: 

• was a “lawless” tribunal that unlawfully usurped the Superior Court’s jurisdiction 
• lacked adjudicative independence, which disproportionately impacted persons with disabilities, contrary to ss. 7 and 15 of the Charter 
• was systemically or institutionally biased against the plaintiffs and their law firm 

To support their institutional bias claim, the plaintiffs brought a motion under r. 30.10 of the Rules of Civil Procedure, RRO 1990, Reg 194. 

The motion sought to compel the non-party appellant, Tribunals Ontario, to produce around 400 records, including draft decisions and email correspondence among staff, counsel, and LAT adjudicators. 

On Sept. 17, 2024, the Superior Court refused to strike the plaintiffs’ claim for lack of jurisdiction until the determination of the constitutionality of s. 280 of the Insurance Act.

On May 5, 2025, Justice Renu Mandhane of the Superior Court granted the r. 30.10 motion. On appeal, the appellant argued that the motion judge erred in interpreting and applying r. 30.10 by ordering the large-scale production of documents that were: 

• irrelevant to the constitutional challenge 
• immaterial or unnecessary for a fair hearing 
• protected from disclosure by solicitor-client privilege and/or deliberative secrecy 

Production order set aside

The Court of Appeal for Ontario allowed the appeal, set aside the motion judge’s order, and substituted it with an order dismissing the plaintiffs’ r. 30.10 motion.

The appeal court ruled that the judge erred in interpreting and applying the rules and governing principles regarding non-party production under r. 30.10, particularly by: 

• failing to use the correct legal tests for relevance, materiality, and fairness 
• failing to consider the requested order’s exceptionality 

First, the appeal court addressed the judge’s errors on relevance/materiality. The appeal court held that the judge erred in applying r. 30.10 to the extent that she determined that the records’ lack of probative value did not matter since relevance was the sole issue. 

The appeal court noted that relevance was interchangeable with probative value or materiality here. 

The appeal court also found that the judge’s reasons: 

• failed to address how internal LAT documents relating to the injured plaintiff’s applications might demonstrate that the LAT generally lacked adjudicative independence 
• mischaracterized the LAT’s alleged lack of adjudicative independence as a material issue in the plaintiffs’ constitutional challenge to the Insurance Act 

The appeal court explained that establishing the LAT’s lack of adjudicative independence would not impact the constitutional claims. 

Next, the appeal court tackled the judge’s errors on fairness/necessity. Regarding the importance of the records to the constitutional challenge, the appeal court saw an error in the judge’s finding that the records were necessary for a fair hearing. 

The appeal court ruled that the judge failed to consider: 

• the exceptional nature of a r. 30.10 order in her treatment of the fairness/necessity issue 
• the appellant’s exposure to inconvenience, expense, or liability 

The appeal court disagreed with the judge’s finding that the appellant was not a typical non-party because its interests supposedly aligned with Ontario’s. The appeal court did not consider the appellant a necessary party to the proceedings. 

Lastly, the appeal court ordered the plaintiffs to pay the appellant all-inclusive appeal costs of $5,000, as agreed.