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Administrative Law - Reconsideration

. Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)

In Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal considered the test for bias, here where the original decision-maker heard a later appeal with the same party:
[36] The test applicable to the assessment of an allegation of bias like the one made in this case is well known and involves asking, "“what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would [that person] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”" (Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at p. 394 [National Energy Board]). Thus, a claim that circumstances give rise to a reasonable apprehension of bias must be evaluated "“through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail”" (R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, 151 D.L.R (4th) 193 (S.C.C.) at para. 36 [S.(R.D.)]).

[37] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias is inherently contextual and fact-specific (Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282 at para. 26). In addition, the case law firmly establishes that the threshold for a finding of bias is high; a party alleging bias must rebut a strong presumption of impartiality on the part of the decision-maker and must do so with concrete evidence, as opposed to speculation (National Energy Board at p. 395; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 76-77 [Wewaykum]; S. (R.D.) at paras. 112-114).

[38] A reasonable apprehension of bias—if not a finding of actual bias—may well arise where the same decision-maker makes an initial decision and then sits in appeal from that decision or appoints the appellate decision-maker (see, for example, MacBain v. Lederman, 1985 CanLII 3160 (FCA), [1985] 1 F.C. 856 (FCA), 22 D.L.R. (4th) 119 at paras. 11, 14; Port Colborne Warehousing Ltd. v Canada (Bd. of Steamship Inspection), 73 N.R. 126, 1987CarswellNat 924 at para. 12). In such circumstances, there is a perceived denial of an impartial appellate decision-maker. This sort of circumstance has sometimes been described as a violation of the maxim "“nemo judex in causa sua”" or that no one shall be a judge of that person’s own cause.
. Bagherian v. Aviva Insurance Company

In Bagherian v. Aviva Insurance Company (Div Ct, 2022) the Divisional Court considered whether it was inappropriate for the same tribunal member to hear both the principle hearing and a reconsideration:
[12] Second, the appellant submits that there is a reasonable apprehension of bias where a tribunal member who made the original decision carries out the reconsideration of the decision. However, Rule 18.1 of the Tribunal permits this process, and it has been found acceptable by the Divisional Court in Gore Mutual Insurance Company v. Rusk, 2022 ONSC 2893 at para. 50. There is no basis here to find a reasonable apprehension of bias on the part of the Tribunal.
. Gore v. Rusk

In Gore v. Rusk (Div Ct, 2022) the Divisional Court considered the issue of the same tribunal member hearing both original and reconsideration hearings:
[47] The language of Rule 18.1 of the Rules is permissive and allows that the reconsideration may be heard by the same member.

[48] The Tribunal’s decision to assign one member of the original panel of Adjudicators to the reconsideration after the other member’s Order-In-Council appointment had expired was within its power to control its own process. As explained in the reconsideration decision:
This reconsideration request follows a Tribunal decision dated April 6, 2020 in which Adjudicator Punyarthi and I determined that the applicant sustained a catastrophic (“CAT”) impairment pursuant to the Schedule. We also found that the applicant was entitled to a Non-Earner Benefit (“NEB”). We issued that decision shortly after the Order-in-Council appointing Adjudicator Punyarthi a Tribunal Member expired, something permitted by s. 4.3 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (the ‘SPPA”).
[49] While s. 4.3 of the SPPA allowed Adjudicator Punyarthi to participate in the original decision after her appointment had expired, there is no requirement that a reconsideration be decided by the same panel who made the original decision. Notwithstanding that a member who made the initial decision may decide the request for reconsideration, it is equally permissible for a different member to make the reconsideration decision. Section 21.2 of the SPPA permits a “tribunal” to review its own decision if it has rules to that effect. The Tribunal retains the discretion to assign a request for reconsideration to a different member or to one member of a two-member panel.

[50] The member whose decision is being reconsidered is often best placed to efficiently evaluate the errors alleged, given their familiarity with the evidence and submissions in the proceeding. As a reconsideration is not an opportunity for a party to reargue their case, the original decision maker can focus on the narrow issues raised in the request. The original decision maker may be in the best position to know whether a reconsideration request actually raises any new issues or submissions (see: Taucar v Human Rights Tribunal of Ontario, 2017 ONSC 2604).

[51] Further, the governing Rules allow any Adjudicator to hear a reconsideration request, including an Adjudicator other than the one or ones who heard the original matter. That necessarily must include allowing a single Adjudicator of a two-member panel to hear a reconsideration request.

[52] Accordingly, it was within the jurisdiction of Adjudicator Hines to hear the reconsideration request and to consider submissions as to any alleged errors or other grounds under Rule 18.2 relating to the decision of the Adjudicators who heard the matter.

[53] We therefore see no lack of jurisdiction or error of law arising from the involvement of Adjudicator Hines in the Reconsideration Decision in the case before us.
. YUDC v. Information and Privacy Commissioner

In YUDC v. Information and Privacy Commissioner (Div Ct, 2022) the Divisional Court, on judicial review under a reasonableness question of law standard, upheld the FIPPA IPC's decision that reversed the onus on a reconsideration onto the party resisting disclosure:
[82] This brings me to York and YUDC’s submission in relation s. 18.01(b) and the onus on a reconsideration application in relation to the issue of whether the four records at issue were under control of York within the meaning of s. 10(1) of FIPPA. Section 18.01(b) addresses “some other jurisdictional defect in the decision”.

[83] The fundamental distinct argument made by York and YUDC in relation to s. 18.01(b) is that the s. 10(1) arguments raised by York and YUDC relate to the IPC’s jurisdiction over the records, and as such, they submit, the Adjudicator erred in the Reconsideration Order in placing the onus on York and YUDC to show that the four records were not under control of York.

[84] I will not quote all of the Adjudicator’s reasons in relation to the onus as they are somewhat lengthy, and intertwined with her analysis of s. 10(1) of FIPPA, which I have addressed above. The key components of her analysis of the onus were as follows:
• York did not decide the initial access request on the basis that the records were not in its custody or control, but rather found that the ss. 17(1) and 18(1) exemptions applied to exempt the records from disclosure (Reconsideration Order at para. 13).

• Neither York nor YUDC raised the issue of whether York had custody or control of the records at issue in the original IPC appeal. She found that York and YUDC “had ample opportunity” to raise the custody or control issue in the appeal, and did not do so. She further found that the fact that York in its submissions took the position that the ss. 17(1) and 18(1) exemptions applied to the records at issue was implicitly a position that it had custody or control of the records (since the structure of FIPPA is such that there is no need to claim exemptions for records not in the custody of or under the control of an institution subject to FIPPA because FIPPA does not apply if records are not under the custody or control of an institution) (Reconsideration Order at paras. 14, fn 2, 26).

• She found that the reconsideration process is not intended to be a forum for parties to reargue their cases, relying on previous IPC orders on this issue as persuasive. One of the factors discussed in the previous orders she referred to is the importance of finality of proceedings before administrative tribunals (Reconsideration Order at paras. 27-29).

• She accepted that an error with respect to the issue of the institution’s custody or control of the records at issue could amount to a jurisdictional issue under s. 18.01(b). However, she held that since the custody or control issue was raised for the first time on the reconsideration request, and not during the appeal, York and YUDC bore the onus to show that the records were not in the custody of or under the control of York. She held that allowing the parties to raise the issue for the first time on reconsideration, and treat it as if it had been raised earlier, would undermine the principle of finality of the IPC’s orders (Reconsideration Order at paras. 30-32).

• She then explained why she found that York and YUDC had not established that the records were not in the custody or control of York (Reconsideration Order at paras. 32-71).
[85] I find that the Adjudicator did not err in allocating the onus to York and YUDC to show that the records were not in the custody of or under the control of York, in light of the context of the issue being raised in a request for reconsideration. The Adjudicator’s decision that, in the context of this issue being raised for the first time in the reconsideration request, the onus lay with York and YUDC to show that the records at issue were not in the custody or control of York is reasonable.

[86] The parties disagree on where the onus in relation to custody or control of the records under s. 10(1) of FIPPA would lie if the issue had been raised in the initial IPC appeal. The IPC position is that previous IPC orders place the onus on an institution to show that records subject to an access request are not in the custody of or under the control of the institution. The IPC submits that the reason for allocating the burden to the institution is that the institution has the information relevant to assessing whether the records are in the custody or control of the institution (i.e., a requester has no way to make this showing, since they have not seen the records and likely know nothing about how they are kept). Counsel for YUDC took the position that since custody or control of records by an institution is a threshold to the right of access existing, it must be established on a balance of probabilities that the records are in the custody or control of an institution subject to FIPPA. However, this issue was not fully argued by the parties, as it arose from questions from a member of the panel during oral argument. It is not necessary in this case for this court to decide the issue of where the onus would lie on the issue of custody or control if it had been raised at first instance in the IPC inquiry.

[87] The Adjudicator found that s. 18 of the IPC Code of Procedure places the onus on the party seeking reconsideration to show that there are grounds within one or more of s. 18.01(a), (b), or (c) to grant the reconsideration.

[88] I find that this is a reasonable interpretation of where s. 18 places the onus, based on both the text of s. 18.01, and the nature of a request for reconsideration.

[89] The opening words of s. 18.01 state: “The IPC may reconsider an order or other decision where it is established that there is [one of the grounds in (a), (b), or (c)]”. The underlined passage is reasonably interpreted to place the onus on the party seeking reconsideration to show that one of the grounds in s. 18.01(a), (b) or (c). Further, the context of a reconsideration also supports that the party seeking the reconsideration bears the onus to show that there are grounds for relief. Our system of justice, both in the courts and administrative tribunals, values efficiency of litigation, and finality. Where a party is seeking reconsideration of a decision, as here, which was made with the benefit of notice, an inquiry, and an opportunity to make submissions, the interests of efficient conduct of litigation and finality support an interpretation of this section as allocating the onus on a reconsideration to the party seeking reconsideration. This is an issue of interpretation by the tribunal of its own rules of procedure, as they apply to an issue under its home statute. The Adjudicator’s decision is owed significant deference in this context.

[90] Thus, I find that the Adjudicator’s decision that the onus was on York and YUDC to show that s. 18.01(b) (and indeed any of the grounds in s. 18.01) applied was reasonable. And as I have addressed above, her further conclusion that York and YUDC had not met their onus to show that the records were not in control of York was reasonable. The process before the IPC was fair, and the applicants have not shown any error by the Adjudicator.
. Roozbuilt Ltd. v. Jamieson

In Roozbuilt Ltd. v. Jamieson (Div Ct, 2022) the Divisional Court considered the standard of review applicable to an administrative review (ie. an administrative reconsideration) [SS: it's tribunal rule-based]:
[36] The appellant argues that the Chair inappropriately conducted a rehearing, rather than a review. In doing so, he should have applied a standard of reasonableness, and instead he showed no deference to the original member and substituted his own findings of fact and policy.

[37] I disagree. The Chair understood the importance of deference to the original member’s findings of fact, stating at p. 6 of his decision:
Where the TLAB member has provided replicable and reasonable grounds for evidentiary findings, absent any of the identified constraints above and in the Rules, the decision is to be supported. An important tenet of administrative law is respect for the decision making process, including its reliability and consistency.
[38] Importantly, he went on to accept the submission of the appellant’s counsel that a review is not a rehearing or re-argument. At p. 7 of his decision, he stated,
A review is limited to the grounds set out in Rule 31 of the TLAB Rules. Where none of these grounds are properly addressed, and met by the Requestor, the review should be dismissed.
[39] The Chair then considered the grounds for review in Rule 31.7 and decided that paragraphs a) and c) were in play in the Request (see p. 12 of his decision) – that the member acted outside her jurisdiction, and that there was an error of law or fact that would likely have resulted in a different outcome. He clearly understood that Rule 31.7 required that the reasons and the evidence in the Request must be compelling in establishing the grounds for review.

[40] After reviewing the reasons of the member and the evidence set out in her reasons, as well as what he heard on the tapes, he concluded that there were multiple and cumulative errors by the member that required the decision be set aside. At p. 49 of his decision, in summarizing his conclusions, he stated,
I have made a number of findings in conducting the request for review initiated by Mr. Jamieson. Some assertions have been rejected, others accepted, with reasons.

I find that the latter, based on reasons and evidence provided by the requesting Party and referenced herein, are compelling and demonstrate grounds which show that the TLAB has acted outside its jurisdiction and made errors of law or fact which would likely have resulted in a different order or decision.
[41] He continued (at p. 51):
I have found that the severance and requested variances individually and collectively do not meet the policy and statutory tests under the Planning Act. The policy imperative to respect and reinforce is not met by two dwellings on this historic lot of record. Two units are not respectable or desirable additions suitable for the subject property. I find that adverse impacts are attendant the proposal in tree removal, enhanced privacy concerns (on and offsite), streetscape interruption, the potential contribution to precedent and the deterioration caused by driveways, of streetscape character.

I find conditions as proposed for permeable pavers and the offer of translucent screening de mimimus in comparison to the more prevalent impacts from this proposed offering for intensification.
[42] In my view, the Chair applied the correct standard of review to the decision of the member. Having reviewed the request, the appellant’s submissions in response and having listened to the tapes of evidence and submissions, he found there were compelling evidence and reasons to conclude that the grounds in Rule 31.7(a) and (c) were met. It is true that the Chair made his own findings of fact, but he did so only after concluding that the member had misapprehended material evidence that would likely have affected the outcome of the decision. That was permitted in light of the powers given to him by Rule 31.6 to vary, alter or cancel the decision under review.
. Gill v. College of Physicians and Surgeons of Ontario

In Gill v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered an administrative review (or reconsideration) request, although the court seems to treat it like a motion to set aside an order:
[80] The relief sought to re-open the case is granted only in exceptional cases. There is a strong public interest in the finality of disciplinary proceedings and the discretion to re-open a hearing should be exercised sparingly and with the greatest care so that fraud and abuse of the [tribunal’s] processes do not result (671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 5960). This is not an exceptional case. The Committee did not err in its decision not to re-open the case.
. Fratarcangeli v. North Blenheim Mutual Insurance Company

In Fratarcangeli v. North Blenheim Mutual Insurance Company (Div Ct, 2021) the Divisional Court considered whether any deference is to be afforded the original ruling in an administrative reconsideration:
[80] We note that after the hearing in this matter was completed, this Court released a decision that offers guidance on how reconsiderations are to be conducted. In Beaudin v. Travelers Insurance Company of Canada, 2021 ONSC 1389 (Div. Ct.), at para. 57, confirming its earlier decision of Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.), at paras. 67-68, the Court confirmed that on a reconsideration, the LAT is not required to show deference to the original decision, nor to the original adjudicator’s factual findings.
. Aggarwal v. Sheridan College

In Aggarwal v. Sheridan College (Div Ct, 2021) the Divisional Court held that it was acceptable for a tribunal to assign the same board member to a reconsideration hearing as to the original hearing:
[75] We would add that the HRTO has a wide latitude to determine which of its adjudicators may decide a Request for Reconsideration. The HRTO is best placed to make such a determination, to which this Court owes deference. Absent evidence of a particular problem, there is nothing prohibiting the original decision maker from considering the Reconsideration Request as well: Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 92-99 (Div. Ct.); Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 16-17 (Div. Ct.). As noted earlier, nothing in this case remotely approaches the test for a reasonable apprehension of bias. We therefore dismiss the application for judicial review on this ground as well.
. 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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