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Administrative - Functus Officio (3). Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) [reconsiderations/functus officio]
In Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) (Div Ct, 2026) the Divisional Court dismisses a Crown JR, this brought against an IPC FIPPA appeal decision (and it's reconsideration) which, in part, ordered some Ministry of Transportation records disclosed.
Here the court considers FIPPA IPC reconsideration issues:[51] The adjudicator referred to s. 15.01 of the Code, which allows an IPC adjudicator who would otherwise be “functus officio” to re-open a matter for reconsideration where it is established that there was: (a) a fundamental defect in the adjudication process; (b) a jurisdictional defect in the decision; or (c) a clerical error, accidental error or other similar error in the decision. The ministry relied on ss. 15.01(a) and (c) in its request for reconsideration.
Section 15.01(a)
[52] The IPC adjudicator held that s. 15.01(a) would involve (para. 10) “a breach of rules of procedural fairness,” such as failure to notify an affected party or to invite representations on an issue. Section 15.01(c), on the other hand, contemplates “clerical or accidental error, omission or other similar error in the decision” (para. 11).
[53] It was the Ministry’s position that it had inadvertently omitted to provide a complete version of record 2 to the IPC during the appeal process. Conversion of the original Excel document (record 15) to a PDF version (record 2) had resulted in the omission of three tables and accompanying explanatory notes on a worksheet, a column on a worksheet, and the titles on each of nine worksheets.
[54] The IPC adjudicator noted that the ministry submitted that “without the new information found in record 15, it is not possible to understand the purpose and content of record 2 (and record 1), or its overlap with the other records.” The ministry also provided an explanation of how records 1 and 2 overlap with the other records that were at issue.
[55] The ministry argued that it was a “fundamental defect” (s. 15.01(a)) in the adjudication process that record 2 was incomplete. This resulted in lost opportunity by the parties to make submissions about the full record, and hence a failure by the IPC adjudicator to consider material evidence. The ministry submitted that titles that had been omitted from record 2 showed how information in a chart was considered as part of a submission, and how information in record 2 could form part of the deliberative process and be used for deciding provincial priorities. The charts could be “revisited, revised, and expanded upon” during the Highway 413 project, and assumptions, calculations and details of charts revised to prepare them for Cabinet submission.
[56] The IPC adjudicator rejected the ministry’s argument under s. 15.01(a). The adjudicator held that s. 15.01(a) related to errors made by the tribunal, rather than to errors by a party, even inadvertent errors. To decide otherwise would frustrate the finality of IPC decisions and encourage never-ending efforts by parties to correct failed strategies. This error was made by the ministry, not by the IPC.
....
[66] By the doctrine of functus officio, once an administrative tribunal has reached a final decision on a matter that is before it in accordance with its enabling statute, the decision can only be revisited if it is authorized by statute or there has been a slip in drawing up the judgment or there has been an error in expressing the manifest intention of the tribunal: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at paras. 19-22.
[67] Chandler, at para. 23, goes on to discuss the line between a tribunal that has not completed its allotted task, and permitting further argument after a final decision:... if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. [68] The Code sets out its position on the finality of IPC decisions and the bases for the reconsideration of its decisions in ss. 15.01 and 15.02:15.01 IPC decisions are final. The IPC may only reconsider an Order or other decision where it is established that there is:
(a) a fundamental defect in the adjudication process;
(b) a jurisdictional defect in the decision; or
(c) a clerical error, accidental error or omission or other similar error in the decision.
15.02 The IPC will not reconsider a decision simply on the basis that:
(a) new evidence is provided, whether or not that evidence was available at the time of the decision; or
(b) a Party disagrees or is dissatisfied with the result. ....
[75] There is authority for the IPC to permit reconsideration even where the error was caused by a party’s failure to adduce evidence: see, e.g., Oshawa (City) (Re), [2019] O.I.P.C. No. 69, MO-3751-R, at paras. 23-33. In the Oshawa case, it is noteworthy that the error disclosed by the City resulted in a more onerous order against it by the IPC. That decision also underscores the concern present in IPC reconsideration cases, echoing para. 23 of Chandler, that “[i]t ought to be stated up front that the reconsideration process established by this office is not intended to provide a forum for re-arguing or substantiating arguments made (or not) during the inquiry into the appeal” (MO-3751-R, at paras. 20-22).
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