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Administrative Law - Reconsideration

. 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.


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