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Administrative - Functus Officio (2). 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Court dismissed a JR, here brought after several prior proceedings by a doctor whose certificate of registration has been revoked.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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