Oct 15, 2020

Hearing panels have the responsibility to independently make decisions and draft their own reasons. However, courts have permitted some degree of peer review of decisions and reasons by other members of the committee, who were not on the actual hearing panel, so long as safeguards are employed. The strictness of those safeguards was discussed in the decision of Shuttleworth v Ontario (Safety, Licensing Appeals and Standards Tribunals), 2019 ONCA 518: http://www.ontariocourts.ca/decisions. In that case the tribunal’s Executive Chair reviewed a draft decision. The issue of deliberative secrecy in the review process did not arise on the facts of the case. However, the review process was described in the evidence and the court had three concerns about it:

1. The review by the Chair of the tribunal did not appear to be at the option of the adjudicator as legal staff sent it to the Chair without the prior knowledge and consent of the adjudicator.

2. The Chair had significant power over the reappointment of the adjudicator to the position and thus was in a position of influence.

3. There were not clear policies and procedures establishing safeguards for the review process including its voluntariness and affirming the adjudicator’s independence.

The decision of the tribunal was set aside.

In light of this ruling, tribunals that permit persons other than the hearing panel members themselves to review draft decisions and reasons should consider reviewing (and applying) policies and procedures that ensure the independence of the tribunal. The Court of Appeal distinguished the role of independent legal counsel (ILC) from that of the Chair of the tribunal as ILC was the servant of the hearing panel. However, even ILC cannot encroach on the independence of the hearing panel.