Simon's Megalomaniacal Legal Resources

Administrative - Functus Officio

. Ramlal Hemchand v. Toronto Community Housing Corporation

In Ramlal Hemchand v. Toronto Community Housing Corporation (Div Court, 2023) the Divisional Court considered an issue of functus officio, here in an administrative context:

[3] This appeal arises from an application by the respondent landlord to evict the appellant tenant for non-payment of rent. The LTB hearing was scheduled for June 23, 2021. The tenant requested that the hearing be rescheduled. That request was granted in advance of the hearing date. The landlord was notified that the hearing would be rescheduled, however, it appears that information was not given to others. As a result, a hearing was still convened on June 23, 2021. The tenant attended and asked again that the hearing be rescheduled. Since the landlord did not attend, the landlord’s application was dismissed as abandoned. The LTB member then became aware of the prior order rescheduling the hearing and gave an order reversing the above dismissal and ordering that the hearing proceed to be rescheduled.

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[14] The tenant suggests that he was entitled to the benefit of the error made at the first hearing, resulting in the application being dismissed. He submits that the LTB member was functus officio and therefore could not rescind the order made in error. However, the LTB member had not made a final order. On the contrary, due to the prior LTB order granting the tenant’s request to reschedule, the matter was not even properly before the LTB member on June 23, 2023. Even if the order was final, tribunals may revisit their final decisions where there has been an accidental slip or error: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at 860-861. Nor is the tenant’s appeal assisted by his reliance on res judicata and issue estoppel in the circumstances.

. Floria v. Toronto Police Service

In Floria v. Toronto Police Service (Div Ct, 2021) the Divisional Court considered the doctrine of functus officio in an administrative context:

[28] It is important to understand the context in Stanley [Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252]. Under the common law, a tribunal that has reached a final decision is functus officio, subject to certain exceptions (at para. 46). Absent the power granted in s. 21.2(1) of the SPPA [SS: tribunal may reconsideration rules], the OPIRD would not have the authority to reopen a decision. Given that there were no rules allowing reconsideration at the time of the decision, the OPIRD had no power to reconsider.

. Del Grande v. Toronto Catholic District School Board

In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court noted an exception to functus officio for administrative reconsiderations:

Functus Officio

[70] The general common law rule is that a decision-maker is functus officio when they make a final decision in respect of the matter before it”: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861. In Chandler, the Supreme Court held that:

As a general rule, once a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within [certain] exceptions….”

[71] The Supreme Court went on to say that the principle should not operate strictly in the administrative law context “where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”: Chandler, at p. 862. See also: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552, at para. 6.

[72] Where the administrative decision-maker has authority to reconsider, it would not be functus officio: Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252, at paras. 62, 67-68. In that case, the Court of Appeal found that the express statutory authority to reconsider unsubstantiated complaints implied that there was no authority to reconsider substantiated complaints.

[73] Moreover, in Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2002), O.R. (3d) 245 (Div. Ct.) at paras. 26-27, this court found that the Building Materials Evaluation Commission had an implied legislative authority to reconsider decisions where public health and safety issues warranted. In doing so, the court cited the following paragraph from David Mullan:

[T]he prohibition on reconsiderations or rehearings was in the past explained as functus officio, res judicata, or estoppel by record. However, the rule applicable to administrative authorities is much more flexible than the doctrine of functus officio in regular court proceedings. Rather, it is more a general operating principle or rebuttable presumption. Finality in administrative proceedings is in general desirable but that may have to give way to other indicators either in statutory language, the nature of the process, or derived from the considerations of justice.

[74] In this case, the doctrine of functus officio did not apply to preclude reconsideration because the Reconsideration Provision provided the Board with the authority to reconsider. Based on the analysis above regarding the Reconsideration Provision, s. 218.3 and the duties of the Board under the Education Act, it was reasonable for the Board to find that it was not prohibited by the doctrine of functus officio from reconsidering the First Decision.

. Trigonakis v. Sky Regional Airlines Inc.

In Trigonakis v. Sky Regional Airlines Inc. (Fed CA, 2022) the Federal Court of Appeal considered that re-opening a case is barred when the court is functus officio, here in a federal case:

[11] Just before our hearing, the respondent filed amended reasons for judgment of the Federal Court. Apparently, after the Federal Court had rendered judgment in this matter and became functus, it amended its reasons. In these circumstances, this was wrong. After becoming functus, a court may correct typographical and grammatical errors and other non-substantive errors in its reasons for judgment but it cannot make substantive changes. This is the natural operation of the doctrine of finality and Rules 397-399 discussed by this Court in Canada v. MacDonald, 2021 FCA 6. In this case, some of the amendments the Federal Court made to its reasons went beyond these limits. They should not have been made. Accordingly, in considering this appeal, we did not consider the Federal Court’s amended reasons. In any event, the amended reasons do not affect our reasoning or observations above or the disposition of this appeal.

. Zhao v. Chao (2)

In Zhao v. Chao (2) (Div Court, 2022) the Divisional Court considered the doctrine of functus officio in an administrative context, here before the LTB where it reconsidered it's initial oral ruling during that oral hearing (not as a formal SPPA s.21.2 review under the LTB Rules):

[25] The Board is not functus officio from a legal perspective until it signs its order. While it is not generally good practice to provide an oral ruling and then to immediately counter-mandate it, mistakes will happen. The process before the Board is informal. It was open to the Board to consider the tenant’s argument that the Board had overlooked the evidence. It was open to the Board then to reconsider its ruling as it did here, and it was open to the Board to decide that it had jumped the gun and to hear further evidence and argument and then to render a final decision on the issue.

[26] I note that there is a procedure that the Board has for review of its decisions after they have been rendered formally, and this sort of issue could be addressed on a review hearing. That being the case, it is not inconsistent with Board’s practice for the Board to be prepared to reconsider a ruling that it has made orally in the course of a hearing that has not yet been concluded and then to continue the hearing on the basis of its revised view of the issue.

[28] The hearing could have unfolded that way and if it had, it could have been unfair, but I do not accept that it did unfold that way. On the transcript, it is apparent that the Board immediately reversed itself and continued to hear evidence about the possessions and their value including inviting the landlord to make submissions on that issue, and I find that on the basis of the transcript and the process that happened that the landlord could not have possibly misunderstood that the Board had reopened the issue and was considering evidence and arguments on the point.

[29] Taking everything into account, I see no error in law in the process followed by the Board and no unfairness resulting to the landlord as a result of the Board making an interim ruling and then immediately reversing itself in the middle of the hearing.

. Floria v. Toronto Police Service

In Floria v. Toronto Police Service (Div Ct, 2021) the Divisional Court considered the doctrine of functus officio in an administrative context:

[28] It is important to understand the context in Stanley [Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252]. Under the common law, a tribunal that has reached a final decision is functus officio, subject to certain exceptions (at para. 46). Absent the power granted in s. 21.2(1) of the SPPA [SS: tribunal may reconsideration rules], the OPIRD would not have the authority to reopen a decision. Given that there were no rules allowing reconsideration at the time of the decision, the OPIRD had no power to reconsider.

. Ontario English Catholic Teachers’ Association v. Toronto Catholic District School Board

In Ontario English Catholic Teachers’ Association v. Toronto Catholic District School Board (Div Ct, 2020) the Divisional Court comments on the doctrine of functus officio in an administrative context (here, labour arbitration):

[24] The leading case on this issue is the decision of the Supreme Court of Canada in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, 62 D.L.R. 577. In that case, Sopinka J., writing for the majority of the court, reviewed the doctrine of functus officio and confirmed that a final decision of a court (as opposed to an administrative tribunal) cannot be reopened after the formal judgment had been drawn up, issued and entered unless “there had been a slip in drawing it up” or “there was an error in expressing the manifest intention of the court” (at p. 860). In reviewing the doctrine, Sopinka J. held that its rationale was that “the power to rehear was transferred by the Judicature Acts to the appellate division” (at p. 860).

[25] Sopinka J. then went on to discuss whether functus officio has application to administrative tribunals and held as follows at pp. 861-62:

Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before an administrative tribunal. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra.

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To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of the court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

[26] Justice Sopinka went on to canvass when it would be appropriate to allow a tribunal to reopen or reconsider a decision. The first situation is when its statute authorizes it to do so. The second is when the tribunal still has jurisdiction or has retained jurisdiction to dispose of an issue it has not yet disposed of. The third is when the tribunal has made a decision that is a nullity. In the third situation the tribunal “has been permitted to reconsider the matter afresh and render a valid decision” (at p. 862). In expanding on this principle, Sopinka J. quotes McLachlin J. (as she then was) in Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 1983 CanLII 411 (BC SC), 147 D.L.R. (3d) 637 (B.C.S.C.) where she summarizes the law at p. 643 of her decision as follows:

I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 1978 CanLII 343 (BC SC), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v. Toronto Stock Exchange et al. (1968), 1968 CanLII 6 (SCC), 67 D.L.R. (2d) 165, [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid’s reasons for judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:

I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.

Sopinka J. continued:

If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 1978 CanLII 343 (BC SC), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, 1968 CanLII 6 (SCC), [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.

[27] In the most recent edition of Judicial Review of Administrative Action in Canada (Thomson Reuters Canada, 2019) (WL), Brown and Evans set out the current law as follows at para. 12:6244:

Where a tribunal recognizes that it has made a mistake that has deprived it of jurisdiction, and thus rendered its decision null and void, it need not wait until a party has obtained an order from a court formally quashing the decision before it rehears the matter, and decides it again. In this regard, the Supreme Court of Canada has adopted the following statement of the law by Lord Reid: "I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid…"

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With this in mind, where a first decision was vitiated by a breach of the duty of fairness, the jurisdiction of a tribunal to redecide a matter has often been upheld. However, to date a tribunal's ability to reopen an erroneous decision that has not been set aside or declared invalid by a court appears to be limited to procedural errors, and more particularly, to breaches of the duty of fairness. Thus, there is no inherent power in an administrative agency to rehear a matter to overcome other types of error of law. Nor does it permit a rehearing only to hear new facts, unless the failure to hear the evidence itself amounted to a breach of the duty of fairness. [Citations omitted.]

[28] Relying on Chandler, the federal courts have confirmed that administrative tribunals not subject to a right of appeal “may always reopen a proceeding if there was a denial of natural justice which vitiates or nullifies it” (Chopra v. Canada (Attorney General), 2013 FC 644, at paras. 64-65, aff’d 2014 FCA 179, leave to appeal to SCC refused, 360901 (29 January 2015). See also Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35).

[29] In Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005, the Divisional Court applied Chandler to find that “[t]he doctrine of functus officio does not operate to preclude a decision maker from curing a procedural defect. It exists to give finality to judgments from courts which are subject to appeal. It does not apply to prevent an administrative decision-maker from reconsidering a decision where there is no right of appeal” (at para. 45, citations omitted).

[30] The Divisional Court made a similar ruling in the context of a labour arbitration under the Canada Labour Code. In Canada Post Corporation v. Canadian Union of Postal Workers, 2008 CanLII 32313 (Ont. Div. Ct.), the arbitrator fixed the date for calculating damages without asking for submissions from the parties. When the parties could not agree on implementation, they returned to the arbitrator. The arbitrator then heard submissions on changing the calculation date from the union, while Canada Post argued he was functus. The arbitrator changed the date in his original order, finding that his first award had been in error due to incomplete information. On application for judicial review, the court held as follows:

[18] For the arbitrator to have made a decision of real significance to the parties, without providing the parties with an opportunity to make submissions or present evidence, and as a result coming to a mistaken belief of the facts would amount to a denial of natural justice.

[19] In our opinion, to avoid that result the arbitrator had the power, and indeed the duty to revisit the issue.

[20] We find he was correct to do so. He was not functus.

. Stanley v. Office of the Independent Police Review Director

In Stanley v. Office of the Independent Police Review Director (Ont CA, 2020) the Court of Appeal considered the doctrine of functus officio in the administrative law context, how it interacts with the administrative law use of reconsideration (as an exception to functus officio: para 62) and that there is no common law doctrine of reconsideration:

(3) The Power to Reconsider and the Doctrine of Functus Officio

[46] The doctrine of functus officio applies to administrative decision-makers. The general common law rule is that a decision-maker (historically, a court) is functus officio when they make “a final decision in respect of the matter before it”: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861. In Chandler, the Supreme Court considered this doctrine in the administrative law context. Writing for the majority, Sopinka J. wrote that “there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals”: Chandler, at p. 861. He defined the rules as follows:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp. [1934 CanLII 1 (SCC), [1934] S.C.R. 186].

Sopinka J. further clarified that the doctrine should not operate so strictly in the administrative law context, “where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation”: Chandler, at p. 862; see also the helpful discussion in David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), at pp. 384-389.

[47] In Jacobs Catalytic Ltd. v. I.B.E.W., Local 353, 2009 ONCA 749, 98 O.R. (3d) 677, this court considered whether the Ontario Labour Relations Board had jurisdiction under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. (“the LRA”) to issue a second, supplementary set of reasons elaborating on a short set of original reasons. Following Chandler, Epstein J.A. (Blair J.A., concurring) wrote, at para. 33: “Beyond clerical or mathematical errors, or an error in expressing the tribunal’s intention, functus officio generally applies except where varied by statute. There is no suggestion in this case of a slip or error. Therefore the Board's jurisdiction to revisit its reasons must be through the authorization of the LRA.”

[48] Epstein J.A. found that, although s. 114 of the LRA furnished the Board with jurisdiction to “reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling”, it did not permit the issuance of supplementary reasons in the absence of reconsideration (which was accompanied by a set of procedural safeguards). Having no jurisdiction to issue the second set of reasons, the majority found a denial of procedural fairness and the appeal was allowed: Jacobs Catalytic, at para. 71.[1][49] Therefore, the question becomes whether the OIPRD, as a creature of statute, is empowered by its legislative framework to reconsider a hearing referral decision. At the time of the Stanleys’ complaints, it was not.

(a) No Power at Common Law

[50] Before I address the legislative framework, I briefly consider the Director’s claim – in his letter to Mr. Love of June 24, 2015 (set out at para. 25, above), in his factum, and in his submissions before this court – that he had a common law power to reconsider his decision. I am unable to discern such a power.

[51] The Director relies upon the oral reasons of the Divisional Court in Greer v. Ontario Provincial Police Commissioner, [2006] O.J. No. 4771 (Sup. Ct. (Div. Ct.)). Greer involved an application for judicial review of the Superintendent of the police force to reconsider a police complaint that he had previously determined to be unsubstantiated. After the Superintendent reversed his original decision, the subject officer sought judicial review of this decision.

[52] The Divisional Court held that the Superintendent was not prohibited from revisiting a decision that the complaint was unsubstantiated. As the court said in its reasons, at para. 7: “Such a decision in our opinion is not a final adjudicative decision and the doctrine of functus officio is not applicable. [The Superintendent] was performing a screening function that was investigative, not adjudicative and therefore administrative in nature.”[2]

[53] Respectfully, this decision is unhelpful. It was decided before the creation of the OIPRD and the framework for decision-making under the current model. Further, the characterization of decisions as “investigative”, “adjudicative”, “final adjudicative”, and “administrative” is inconsistent with the approach in Endicott and Wall. Moreover, these types of distinctions are not evident in Chandler or Jacobs. If the OIPRD is correct that all of the decisions it makes are investigative in nature, then it would never be functus officio in respect of any decision taken by the Director. This cannot be the case. It would undermine the principle of finality that was at the heart of Chandler.

[54] The Director has no power at common law to re-open an investigation and reconsider his hearing referral decision.