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Administrative - Re-Opening. Midnight Building Corp. v Tarion Warranty Corp.
In Midnight Building Corp. v Tarion Warranty Corp. (Div Ct, 2025) the Divisional Court allowed an application, this regarding a finding of liability "by Tarion, for the cost to construct a retaining wall incident to construction of a swimming pool (the “impugned finding”), pursuant to the Ontario New Home Warranties Plan Act".
The court considers when an administrative decision is functus officio (aka final), here where an advisory report was changed resulting in a subsequent material change in decision:(a) LAT’s Jurisdiction Over “Reconsideration” Requests
[7] The Applicant argued that Tarion had no jurisdiction to change its initial disposition on the retaining wall issue. I would restate the Applicant’s position as follows: once Tarion makes a decision on an item of claim, Tarion has exhausted its jurisdiction, and a homeowner’s remedy is an appeal to the LAT.
[8] I agree with the Applicant that once Tarion makes a “decision” it will generally be functus officio in respect to the matter decided. However, “decision” in this context is a final decision. The Conciliation Assessment Report dated January 12, 2023 is not, itself, a final decision. It is more like a provisional disposition of issues, part of an ongoing conciliation process. Until Tarion issues a formal decision, it is open to Tarion to re-open an issue it has provisionally disposed of – provided it does so following a fair process.
[9] Tarion does not have a formal reconsideration process. However, it does not need to have such a process to re-open an issue that has not yet been decided on a final basis.
[10] Finally, I would not wish to be taken to have established a firm “rule” precluding Tarion from “revisiting” its own “decisions” in some circumstances. Correcting minor or agreed errors, or engaging in a formal reconsideration, are processes that Tarion could follow, in appropriate cases. Permitting revised or fresh claims in light of changed circumstances is also something that could be available, in appropriate cases, so long as these revised or fresh claims are in accordance with the statutory scheme. Tarion is master of its own processes, and this court will defer to Tarion’s procedural choices so long as the process followed is fair to both sides. . Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process".
In these quotes the court considered a denial of a request to re-open the hearing (after submissions) for additional evidence, here as an issue of procedural fairness:B. The Refusal to Admit Post-hearing Evidence Did Not Breach Rights of Procedural Fairness
[30] Mr. Ghafari’s second procedural fairness argument relates to the Board’s refusal to accept additional evidence after the conclusion of the hearing. Mr. Ghafari became aware of the evidence in question during his cross-examination of one of the respondent’s witnesses on Friday March 4, 2022, the last day of testimony. Oral arguments were made the following Tuesday, followed that same day by written submissions. Two days later, Mr. Ghafari wrote to the Board seeking permission to introduce the additional evidence.
[31] Mr. Ghafari’s request addressed the test for admission of post-hearing evidence. After receiving submissions from the respondent, the Board refused to admit the evidence, explaining that, in its view, the test for admission of new evidence was not met. Among its reasons, the Board pointed out that Mr. Ghafari did not make his request until two days after the last hearing day.
[32] Mr. Ghafari submits that the Board’s decision was procedurally unfair because he only learned of the evidence on the last day of testimony and so could not have obtained it earlier than he did. He also asserts that the period of time within which the Board expected him to seek permission to admit it was too short.
[33] I see no breach of procedural fairness. The Board heard arguments from both sides and then made its decision. Even if Mr. Ghafari could not access the evidence until after the close of the hearing, nothing prevented him from asking for time to obtain it, either immediately following the testimony of the witness who raised it, or during his final oral submissions four days later. I also observe that the Board concluded the evidence was “readily available before the hearing”. In my view, the substance of Mr. Ghafari’s submissions on this matter is disagreement with the Board’s application of the test for new evidence.
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