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Administrative - Functus Officio. Del Grande v. Toronto Catholic District School Board [reconsideration]
In Del Grande v. Toronto Catholic District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a JR against school board decisions in which the appellant "was found to have breached the TCDSB’s code of conduct (the “Code of Conduct”) during a public meeting" and was sanctioned."
Here the court considered whether reconsiderations (in themselves) offend "res judicata, issue estoppel, and functus officio" doctrine in an administrative context:(3) The Reconsideration Decision did not offend re-litigation doctrines
[29] The Divisional Court did not err in rejecting Mr. Del Grande’s argument that the Board’s reconsideration of the First Decision offends the doctrines of res judicata, issue estoppel, and functus officio. These doctrines have limited application where an administrative tribunal has authority to reconsider past decisions based on its enabling statute or regulation, or on a procedural by-law it has adopted to exercise its functions pursuant to them.
[30] Relying on Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861, Mr. Del Grande argues that the Board’s First Decision was final and could not be revisited simply because the Board was dissatisfied with the outcome. Chandler recognized, however, that an administrative tribunal can reconsider a past decision “if authorized by statute”. As already mentioned, the Board was broadly empowered, through the Education Act, to adopt appropriate procedures to exercise its functions and carry out its duties. The By-law it adopted expressly permitted reconsideration of past decisions. The Divisional Court therefore did not err in finding that the Reconsideration Decision falls within the exception to the general rule recognized in Chandler.
[31] Mr. Del Grande contends that, in Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, 98 O.R. (3d) 677, this court held that an administrative tribunal may not revisit its reasons unless its authority to do so is explicitly set out in the enabling statute. In Jacobs Catalytic, at para. 33, the court held that: “Beyond clerical or mathematical errors, or an error in expressing the tribunal’s intention, functus officio generally applies except where varied by statute.” Jacobs Catalytic is not helpful. The issue in that case was not whether an administrative tribunal had the ability to reconsider a decision – its enabling statute expressly conferred that ability – but whether it could issue supplementary reasons in the absence of a formal process of reconsideration.
[32] As held more recently by this court in Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252, 81 Admin. L.R. (6th) 254, at para. 67, leave to appeal refused, [2021] S.C.C.A. No. 39211, a reconsideration power is “a complete answer to the jurisdictional objection” of functus officio. A decision-maker’s determination as to whether res judicata and issue estoppel preclude reconsideration constitutes an exercise of discretion: Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, 160 O.R. (3d) 173, at para. 81; Bryton Capital Corp. GP Ltd. V. CIM Bayview Creek Inc., 2023 ONCA 363, 8 C.B.R. (7th) 22, at para. 43. As correctly held by the Divisional Court, such an exercise of discretion is entitled to deference by reviewing courts.
[33] The Divisional Court held that it was not unreasonable for the Board to respond to the community’s reaction to the First Decision, given the TCDSB’s nature, mandate, and role within the community. It noted that the Board did not make the Reconsideration and Merits Decisions on the same record as the First Decision:The evidence is that there was a public outcry in response to the First Decision. As a responsive body, the Board called a special meeting to address the issue. At that meeting, over the course of eight hours, numerous delegations including former students spoke to the impact of the First Decision on them. The Applicant’s counsel made both written and oral submissions. The Board took all of those submissions into consideration when it deliberated on the motion to reconsider the First Decision. The Board did not simply bend to public pressure and reverse the First Decision upon receiving a negative response.
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