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Administrative - Functus Officio (2). Atkinson v. Economical
In Atkinson v. Economical (Ont Div Ct, 2026) the Ontario Divisional Court allowed an appeal-JR, this from an unusual LAT (SABS) tribunal reconsideration issue - here where the applicant challenged "the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal". The case also involved a parallel HRTO application alleging discrimination in the LAT process.
The case involved the scope of administration reconsideration [SPPA s.21.2], and it's interaction with administrative (versus court) functus officio:Issue #1- The LAT’s Jurisdiction
[36] The decision under challenge on this issue is the LAT’s decision of September 12th, 2025, cancelling the LAT’s previous two decisions. The Applicant challenges the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal. Determining this issue requires consideration of both the statutory provisions and the doctrine of functus officio.
Statutory Provisions
[37] The jurisdiction of a statutory tribunal is entirely circumscribed by statute: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, (2009) 98 O.R. (3d) 677 at para. 18. As a result, the starting point in my analysis is what does the statute, and the accompanying rules permit the LAT to do in this case?
[38] Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) gives a tribunal the authority to review all or part of its own decision or order, and the authority to confirm, vary suspend or cancel the decision or order. This provision only applies if the tribunal has made rules under section 25 of the SPPA giving it the authority to review decisions. This power is broader than the power to correct typographical, calculation or similar type errors. The power to correct typographical errors is given to a tribunal automatically and may be exercised “any time”: SPPA, section 21.1.
[39] The LAT’s Rules of Procedure specifically set out the reconsideration process in Rule 18. Rule 18.1 sets out the fact that a request for reconsideration can be made by a party within twenty-one (21) days of the Tribunal’s decision. These reconsideration decisions “may” be heard by the same Member who heard the original case.
[40] The criteria for granting a reconsideration are set out in Rule 18.2, which states:18.2 CRITERIA FOR GRANTING RECONSIDERATION
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:a. The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result. [41] The LAT also has the authority to review decisions on its own initiative. Rule 18.5 states:18.5 REVIEW ON OWN INITIATIVE
At the discretion of the Chair or delegate, the Tribunal may, on its own initiative, review any decision of the Tribunal. The Tribunal's review shall take place within a reasonable time after the decision or order is made.
When conducting a review on its own initiative, the Tribunal shall not make an order under Rule 18.4(b) unless it is satisfied that one or more of the criteria in Rule 18.2 are met. Before making such an order, the Tribunal will provide the parties with an opportunity to make submissions. [42] Therefore, the LAT has the authority to reconsider decisions on its own initiative, as long as it does so within a “reasonable” time. The question of what is reasonable is important to the disposition of this appeal. There is also an issue of whether the LAT can reconsider a decision a second time, given the doctrine of functus officio. I turn to those issues now.
The Scope of the LAT’s Authority to Reconsider
[43] In assessing whether the LAT had the authority to reconsider the decision when they did, the factual matrix must be remembered. The original LAT decisions had been made more than a year and a half prior to the September 12th, 2025, decision. The Appeal of the LAT’s decision had been brought at the end of 2023 and the judicial review application was brought at the beginning of 2005. By the time the LAT began the process to reconsider its’ decision for a second time, Ms. Atkinson’s appeal and judicial review application were fully perfected and ready for hearing before the Divisional Court.
[44] This factual matrix must also be considered against the backdrop of both the broad wording of Rule 18.5 and the principles of functus officio. For Courts, the general rule is that final decisions cannot be reopened. Given that the decisions of administrative tribunals are not subject to an automatic right of appeal, the rules are more relaxed for them. As the Court noted in Chandler v. Association of Alberta Architects, 1989 CanLII 41, [1989] 2 S.C.R. 848 (at pages 861-2):I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. 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 administrative tribunals. 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.
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 a 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. [45] These principles have been explained by this Court in Windsor (City) v. Ontario Nurses’ Association, 2019 ONSC 6883, (2019) 148 O.R. (3d) 701 at paras 11-14:[11] The doctrine of functus officio exists in order to import finality into legal proceedings. In general, a tribunal cannot revisit [page704] a case it has already decided. However, the doctrine is not absolute. It is subject to exceptions.
[12] Some of these exceptions are identified in Chandler v. Assn. of Architects (Alberta), 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102. For example, the court cites the ability of an adjudicator to "correct clerical mistakes or errors arising from an accidental slip or omission": para. 22. It also recognizes statutory provisions that permit a tribunal to reconsider its decision: para. 76.
[13] The court in Chandler also adopted the exceptions set out in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186, [1934] S.C.J. No. 6, in which the court realized "some matter which should have been dealt with in the reasons has been overlooked" as an exception to the doctrine of functus officio: para. 76.
[14] Furthermore, the Chandler court recognized the ability of a court to reopen a decision "where there was an error in expressing the manifest intention of the court": para. 75. This exception to the functus officio rule was applied in N.S.G.E.U., at para. 41. [46] When these principles are considered, I am of the view that the LAT did not have jurisdiction to reconsider this decision a second time for two reasons.
[47] First, the statute requires the LAT to initiate a reconsideration decision within a “reasonable” time period. In this case, the LAT did not initiate a reconsideration decision for a year and a half after it had made the original decision. The time in this case was not a “reasonable” time period.
[48] The term reasonable must be read in conjunction with the twenty-one-day period that parties have in order to bring a reconsideration application. While the LAT does not have such a tight and specific timeline, this twenty-one day period informs the magnitude of the “reasonable” time period that the LAT has to reconsider a decision. The LAT’s rules intend for reconsideration applications to be brought promptly after the decision is rendered and the expectation is that it would generally be weeks.
[49] Second, permitting the LAT to review a decision a second time, after appeal and review proceedings have been launched in this court, without any direction from this court that it may do so, would be contrary to the doctrine of functus officio. The LAT argues that the decision in Plante represented a change in the law and gave the LAT the jurisdiction to reconsider the decision in this case. I disagree. In my view, the LAT’s reconsideration decision interferes with the principle of finality that underpins the doctrine of functus officio in administrative decisions. In CBC v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, the Court underscored the importance of finality in decision-making, observing that if decision makers could constantly change their decisions, then the appeal record would be written on “shifting sands” and would preclude effective review. Although the Manitoba decision was decided in the course of a court process, that same principle applies in this case.
[50] More generally, the common law is constantly evolving. From time to time, appellate courts will change the law. The effect of those changes on previously decided cases are matters for the parties and the appellate court to work out. They are not matters that the original decision maker can fix.
[51] The LAT’s decision exceeds their jurisdiction as it breaches the finality principle. A tribunal modifying its decision in the shadow of an impending appeal or judicial review raises the “shifting sands” concern that the Supreme Court had in Manitoba. It would be difficult for this Court to effectively review an administrative decision if the decision-maker had the jurisdiction to change their decision in the weeks before the Court hearing. The proper course for the LAT, in all the circumstances, was that taken by the HRTO: to advise the parties that the LAT took the position that the decisions should be quashed by this court and then to consent to that relief in this court.
[52] The LAT’s approach in this case also engages some of the concerns that were present in Jacobs. In that case, the Ontario Labour Relations Board issued supplementary reasons at the request of the successful party and after a judicial review application had been launched. The Court of Appeal found that, where a tribunal had made a final decision with reasons, it did not have the jurisdiction to provide supplemental reasons. The parties were entitled to arrange their affairs on the basis of the final decision, including deciding whether to commence an appeal or seek judicial review. In addition, the Court found that providing supplementary reasons in these circumstances ran “the risk of giving the appearance of the [OLRB]’s attempting to ‘cooper up’ the decision.” (at para. 49).
[53] For these reasons, the September 12th, 2025, reconsideration decision of the LAT must be quashed as being beyond the LAT’s jurisdiction.
Conclusion
[54] Since the LAT did not have the jurisdiction to issue its second reconsideration decision (the September 12th, 2025 decision), then the original and first reconsideration decisions denying benefits continued in force until this panel quashed them at the hearing in November 2025. The parties all agreed that the original LAT decision and the first reconsideration decision could not stand, and I would accept that concession.
[55] Briefly put, in this case the LAT Member who originally heard this appeal, and heard the reconsideration application, made the same error of law as was made in Plante and his decisions cannot stand. Given that the September 12th, 2025, decision was beyond the jurisdiction of the LAT, the doctrine of mootness does not arise, and this Court was required to intervene in order to correct the previous two decisions. . Li v. Yuen Ming Ma
In Li v. Yuen Ming Ma (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 landlord's appeal, here brought against an order that found "the landlord had retained the tenant’s money illegally ... because he failed to return the payment for last month’s rent the tenant had provided at the outset of the tenancy" despite the LL's damages set-off argument.
The court considers functus officio in this administrative LTB context:Was the Board entitled to amend its order?
[8] The landlord submits the Board was functus officio and not entitled to amend its order. I do not find any error of law in the Board amending its order in this case.
[9] The principle of functus officio permits a tribunal to amend an issued order where (1) there has been a clerical mistake arising from an accidental slip or omission; or (2) the order fails to reflect the tribunal’s manifest intent: Paper Machinery Ltd. et al. v. J.O. Ross Engineering Corp. et al., 1934 CanLII 1 (SCC).
[10] The principle must be applied in a flexible and less formulistic manner to the decisions of administrative tribunals, such as the Board, that are subject to appeal only on a point of law. The Supreme Court of Canada stated in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848: “Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be unavailable on appeal.” . 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. . Tan v. Ontario Physicians and Surgeons Discipline Tribunal
In Tan v. Ontario Physicians and Surgeons Discipline Tribunal (Div Court, 2024) the Ontario Divisional Court dismissed a JR, here brought after several prior proceedings by a doctor whose certificate of registration has been revoked. This JR was brought against a second decision of the Ontario Physicians and Surgeons Discipline Tribunal to "reopen his hearing to admit fresh evidence" that was denied on the basis "that the Tribunal did not have jurisdiction to hear the motion" as it was functus officio, despite Rule 13.3.1 ['Application to Vary, Suspend or Cancel a Tribunal Order'] of the Tribunal’s Rules of Procedure .
Here the court considers functus officio, and more specifically whether a statutory-based OPSDT Rule excepted it's application (it didn't):[4] The Tribunal’s Case Management Chair dismissed Dr. Tan’s December 2023 motion, ruling that the Tribunal did not have jurisdiction to hear the motion. The Chair determined that Rule 13.3.1 of the Tribunal’s Rules of Procedure, which deals with when the Tribunal may vary, suspend, or cancel a Tribunal order “that continues in effect”, does not provide a statutory exception to the doctrine of functus officio.
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The Chair’s Decision
[7] After receiving Dr. Tan’s motion to admit fresh evidence and to re-open his hearing, the Chair requested submissions from the parties on whether the Tribunal had lost jurisdiction over the matter as a result of the principle of functus officio. The parties agreed that because of the doctrine of functus officio, there must be specific statutory authority for the Tribunal to change its finding that Dr. Tan committed sexual abuse. Dr. Tan relied on Rule 13.3.1 which provides:The Tribunal may vary, suspend or cancel a Tribunal order that continues in effect where:a. there are new facts arising or discovered after the order was made, or a material change in circumstances has occurred after the order was made; and
b. the change to the order would be in the public interest. [8] The Chair issued his decision dismissing the motion for lack of jurisdiction on February 29, 2024. The Chair concluded that Rule 13.3.1 did not provide specific statutory authority because it “applies only when an ongoing aspect of an order like terms, conditions or limitations on a certificate of registration requires modification. Even in those circumstances, it does not allow for a reversal of the finding.” (Chair’s Decision, at para. 5)
[9] The Chair reviewed the history of Rule 13.3.1, noting that the “motion to vary” was introduced to the Tribunal’s Rules of Procedure in 2009. The previous year, this court held that the Health Professions Procedural Code[1], implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration but that it was “not for [the Court] to determine the circumstances in which a member may seek a variation of a term as that issue is not before us on this application”: Li v. College of Physicians and Surgeons of Ontario, 2008 CanLII 37613 (Div. Ct.), at para. 30. Rule 13.3.1 sets out those circumstances and the procedure to bring a request. (Chair’s Decision, at para. 9) The qualification that the request must relate to an order that “continues in effect” was added in 2023. (Chair’s Decision, at para. 10)
[10] The Chair observed that, in interpreting Rule 13.3.1, he was required to apply the “modern approach to interpretation” and analyze the text, context, and purpose of the Rule to determine its intent. (Chair’s Decision, at para. 11)
[11] The text of Rule 13.3.1 suggests that its purpose is to set out the criteria and procedure for a request to change a term, condition, or limitation under the power discussed in Li, not to establish a review power under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Section 21.2(1) of the SPPA allows for the review of a decision or order and based on that review, for the decision to be confirmed or changed.[2] By contrast, Rule 13.3.1 does not use the word “review” or “reconsider” and it refers only to varying an “order.” (Chair’s Decision, at paras. 12-13)
[12] The Chair disagreed with Dr. Tan that a revocation “continues in effect” because the Code prevents him from applying for reinstatement for five years: “[r]evocation is an event that occurs at a set moment, with lasting consequences.” (Chair’s Decision, at para. 14)
[13] The Chair determined that the most important context is the principle of finality. According to the Chair, a provision that permitted a review of a decision years later, would be contrary to s. 21.2.(2) of the SPPA, which requires that any review is to take place “within a reasonable time after the decision or order is made.” (Chair’s Decision, at paras. 16-17)
[14] Finally, the Chair concluded that the history of Rule 13.3.1 suggests its purpose was to implement the power to vary identified in Li. The Chair cited Tribunal decisions in which Rule 13.3.1 has been used in the situations contemplated by Li. (Chair’s Decision, at para. 18)
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The Chair’s Decision is Reasonable
[25] In my view, the Chair’s decision dismissing Dr. Tan’s motion to re-open his discipline hearing is reasonable. The Chair’s reasons for concluding that Rule 13.3.1 does not provide specific statutory authority for the Tribunal to re-open Dr. Tan’s discipline hearing are transparent, internally coherent, and justified in relation to the facts and the law.
[26] In relation to an administrative tribunal, the doctrine of functus officio provides that, as a general rule, once a final decision by the tribunal is made, the tribunal has no power to revisit its decision because the tribunal has changed its mind, made an error within jurisdiction, or there has been a change of circumstances. The general rule is subject to limited exceptions including, where there has been a slip in drawing up the decision, to correct an error in expressing the manifest intention of the tribunal, or if there is specific statutory authority to do so: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861.
[27] Where a final decision of a court or tribunal is susceptible of appeal [SS: not the case here, paras 15-20], as is the case here under s. 70(1) of the Code, functus officio promotes finality, which is a “practical necessity for the system of justice as a whole”, and effective appellate review: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at para. 34.
[28] Section 21.2(1) of the SPPA authorizes a tribunal – if its rules permit – to “review all or part of its own decision or order” and, if so, to “confirm, vary, suspend or cancel the decision or order.” Under s. 21.2(2) of the SPPA, any review must take place within a reasonable time after the decision or order is made.
[29] The Chair was alert to important differences in the wording between s. 21.2(1) of the SPPA and Rule 13.3.1. Unlike s. 21.2(1), Rule 13.3.1 does not use the word “review.” While s. 21.2(1) refers to reviewing a decision or an order, Rule 13.3.1 refers only to the ability to vary, suspend, or cancel an order. Under s. 21.2(1), the tribunal may confirm the decision or order; Rule 13.3.1 does not use the word “confirm.” Having regard to these differences, it was reasonable for the Chair to conclude that Rule 13.3.1 is not an implementation of the review power contemplated by s. 21.2(1) of the SPPA.
[30] Rule 13.3.1 requires that only an order that “continues in effect” can be varied, suspended, or cancelled. The Chair rejected Dr. Tan’s argument that a revocation continues in effect because the Code prevents him from applying for reinstatement for five years. As the Chair explained, Dr. Tan’s interpretation would result in a general review power and render the words “continues in effect” meaningless because “[n]early every order has a lasting effect, at least those leading to an entry on the public register identifying the misconduct.”
[31] The Chair carefully considered the history of Rule 13.3.1 and its purpose. Dr. Tan submits that the Chair’s “logic” does not follow from this court’s decision in Li because Li does not deal with the issue of facts arising or discovered after an order was made. In Li, this court held that the Code implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration. Previously, the Tribunal had concluded that it did not have the power to do so. The court did not determine the circumstances in which a member could seek a variation or a term because that issue was not before it. The predecessor to Rule 13.3.1 was added the following year.
[32] It was reasonable for the Chair to conclude that Rule 13.3.1’s history suggests its purpose was to implement the power to vary identified in Li. And, as the Chair identified, Rule 13.3.1 has been used in situations contemplated by the Court in Li, including: Buttoo v. College of Physicians and Surgeons of Ontario, 2021 ONPSDT 40; College of Physicians and Surgeons of Ontario v. Kingstone, 2012 ONCPSD 26; College of Physicians and Surgeons of Ontario v. Wyatt, 2011 ONCPSD 10.
[33] The Chair identified the principle of finality as “the most important context here” and cited the Supreme Court of Canada’s explanation for the principle: “If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court. The appeal record would be written on ‘shifting sand’, ultimately inhibiting effective review”: Canadian Broadcasting, at para. 34. The principle of finality is recognized in s. 21.2(2) of the SPPA, which requires that any review must take place within a “reasonable time” after the decision or order is made. The Chair concluded, reasonably, that a provision allowing review of a decision with no time limits on the request – the position advocated for by Dr. Tan – would be contrary to s. 21.2(2).
[34] Dr. Tan challenges the Chair’s reliance on Khan v. College of Physicians and Surgeons of Ontario, 2022 ONPSDT 37 and contends the Chair failed to provide “further explanation” for his conclusion that “Khan is clear that the rule is not intended to allow reconsideration.” I do not agree. The Chair explained that “[a]pplying functus officio, the Tribunal [in Khan] found that the application to vary rule ‘is not an appeal or reconsideration provision’ and did not provide for the reversal of a decision on the basis it was allegedly wrong.” (Chair’s Decision, at para. 19) The Chair’s reliance on Khan is consistent with his textual, contextual, and purposive analysis of the provision.
[35] In detailed, clear, and internally coherent reasons, the Chair identified and applied the correct interpretative principles. His interpretation of Rule 13.3.1 and his dismissal of Dr. Tan’s motion based on no jurisdiction were reasonable. . 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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