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Administrative - Reconsiderations (2). Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered a challenge to a school board's 'reconsideration' jurisdiction and procedure in a politically-charged context. These quotes reflect the novel and unpredictable role that reconsiderations can have in administrative proceedings, albeit here in the uniquely political situation of a school board:Was the Reconsideration Decision Reasonable?
Was the Board’s Application of the Reconsideration Provision Reasonable?
[39] The Applicant submits that the Decisions must be quashed because any reconsideration must be authorized by statute and the Education Act contains no such authority. The Applicant submits that the Reconsideration Provision, Article 10.11 of the By-law, is inferior to the statutory scheme set out in s. 218.3 of the Education Act and is not intended for use in Code of Conduct proceedings. The Applicant’s position is that the Board was not entitled to use the Reconsideration provision to hold a fresh vote to get the result that it was seeking, a process that he characterizes as “reverse engineering.” In support of his position, the Applicant relies on the following paragraph from Vavilov, at para. 121:The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior – albeit plausible – merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. [40] The Respondent submits that the Reconsideration Decision was reasonable. The Education Act gives the Board broad authority to control and determine its own processes. Because the Education Act does not prohibit reconsideration, the Board was entitled to use the Reconsideration Provision to reconsider the First Decision. The Respondent relies on the following contextual factors to support its position: (i) the board was interpreting its home statute and its own codes of procedure and conduct; (ii) the legislative scheme favours deference to the Board; (iii) the Trustees have a unique perspective on the Applicant’s comments; and (iv) the Trustees are elected representatives and the Board is democratically accountable to the community.
The Reconsideration Provision
[41] Article 10.11of the By-law reads as follows:10.11 Reconsideration by the Board of Trustees
Any matter which has been decided upon by the Board of Trustees, for a period of three months thereafter, may be reconsidered by the Board of Trustees only on an affirmative vote of two-thirds of all Trustees of the Board of Trustees entitled to vote, thereafter only on an affirmative vote of a majority of all Trustees of the Board of Trustees entitled to vote thereon. Thereafter a matter may be reconsidered only on a vote of a majority of all Trustees of the Board of Trustees entitled to vote thereon. [42] The Applicant accepts that under s. 169.1(d) of the Education Act, the Board had authority to enact the By-law and consequently Article 10.11. He submits, however, that the Board was not entitled to circumvent or read-in new procedure to s. 218.3 of the Act. The Applicant further submits that the Reconsideration Provision is only intended to be used on appeal when a Trustee has been found “guilty” of misconduct and not when a Trustee has been “acquitted.”
Section 218.3 of the Education Act
[43] The procedure for enforcing a school board’s code of conduct for trustees is set out in s. 218.3 of the Education Act. In brief, where a potential breach of a code of conduct has come to the board’s attention, the board is required to make inquiries and determine whether the code of conduct has been breached (s. 218.3(2)); to take certain actions if the board determines that a trustee has breached the code of conduct (s. 218.3(3)); and to give the trustee notice and provide an opportunity to make written submissions regarding the finding of misconduct or sanction (s. 218.3(6)). The board is required to make a determination as to whether misconduct has occurred, the sanctions to be imposed, and the confirmation/revocation of the decisions by resolution at a public meeting of the board (s. 218.3(11)).
[44] Subsection 218.3(3) specifies the sanctions that may be imposed in the event of a breach of the code of conduct. The sanctions include censure of the member and barring the member from attending meetings and/or sitting on committees of the board for a specified period of time.
[45] A trustee’s opportunity to make submissions takes place after a finding of breach and the imposition of a sanction under s. 218.3(6), which states as follows:(6) If a board determines that a member has breached the board’s code of conduct under subsection (2),
(a) the board shall give the member written notice of the determination and of any sanction imposed by the board;
(b) the notice shall inform the member that he or she may make written submissions to the board in respect of the determination or sanction by a date specified in the notice that is at least 14 days after the notice is received by the member; and
(c) the board shall consider any submissions made by the member in accordance with clause (b) and shall confirm or revoke the determination within 14 days after the submissions are received. Findings
[46] The modern principle of statutory interpretation requires that the words of an Act be interpreted in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature: Rizzo & Rizzo Shoes, 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27.
[47] In my view, the Board’s application of the Reconsideration Provision to reconsider the Applicant’s Code of Conduct matter was reasonable because it is supported by the text, context and purpose of the Education Act. I reject the Applicant’s submission that because the Board was not entitled to reconsider the First Decision, the Reconsideration Decision was “illegal.”
[48] Beginning with the text of the provision, nothing in the language of s. 218.3, or the Education Act, precludes reconsideration of a code of conduct matter by a board. There is no provision in the Act stating that a determination under s. 218.3(6) is final. Section 218.3 prescribes a process for determining whether a trustee has breached a code of conduct. As noted above, under s. 218.3(6), the trustee does not have an express right to make submissions before a finding of a breach is made. The trustee has an opportunity to make written submissions before the meeting at which the determination will be confirmed, revoked or varied. Moreover, s. 218.3 does not require that a board provide a trustee with a full hearing or participatory rights; it provides only for written submissions. Subsection 218.3(14) reinforces this by specifically stating that the Statutory Powers Procedures Act does not apply.
[49] Similarly, the Reconsideration Provision itself contains no limits as to the subject matter to which it applies. In fact, the wording of the provision is broad, and states that “[a]ny matter which has been decided upon by the Board of Trustees… may be reconsidered by the Board of Trustees…[.]” The Reconsideration Provision does not exclude its application to Code of Conduct matters. There is no basis on which to read-in such a limit where none exists. The provision stipulates that a two-thirds majority vote is required to reconsider a decision of the Board within three months but that after that, a simple majority is sufficient. This requirement is logical to ensure that policy matters are not constantly revisited once they have been decided. The fact that the Reconsideration Provision has not previously been used in relation to a Code of Conduct matter does not mean that it cannot be.
[50] As is evident from the process provided under s. 218.3, the process for determining whether a trustee has breached a code of conduct is not akin to a criminal process. The potential sanctions under the Education Act, including censure and the inability to participate in committees, are correspondingly weak. An individual facing a criminal prosecution has, for good reason, stronger, constitutionally protected participatory and procedural rights than a trustee facing a code of conduct proceeding under the Education Act. It follows that the Applicant’s use of criminal law concepts, such as a “finding of guilt,” “acquittal” and “double jeopardy” have no place in a code of conduct proceeding under s. 218.3. The process under s. 218.3 leads to a determination as to whether a trustee has breached the code of conduct and an appropriate sanction, and nothing more.
[51] The statutory scheme provides further support for the Board’s interpretation of the Reconsideration Provision and s. 218.3. Under s. 58.5(1) of the Education Act, a school board is permitted to function as a corporation and “has all the powers and shall preform all the duties that are conferred or imposed on it under this or any other Act.” That provision reflects a legislative intent that school boards not be limited in conducting their affairs to those functions that are specified in the Education Act. Moreover, the Act does not dictate to the Board how it must conduct its affairs, rather, the Board is the primary determinant of its own processes.
[52] This court has previously held that school boards should be free to act as modern, democratic, dynamic legal personalities. Provided there is some statutory foundation for the process in question and no express statutory prohibition against it, they have the freedom to control their own internal processes: In the Matter of s. 10 of the Education Act, 2016 ONSC 2361, at para. 56. The Education Act vests a virtually unrestricted statutory authority to act, provided only that there be some basis for the board’s actions in a valid statute. While school boards may only exercise the powers expressly or impliedly conferred on them by statute, included in this authority are any general powers conferred by the legislation: In the Matter of s. 10 of the Education Act, at para 55.
[53] In addition, while the Education Act requires that a board enact a code of conduct, it does not prescribe the standards or content. This demonstrates that the legislature intended for conduct issues to fall within the Board’s authority, which enables the Board to act in a flexible and dynamic manner, responsive to the community it serves.
[54] The purpose of the Education Act is to foster a strong public education system, which is the foundation of a “prosperous, caring and civil society.” Education Act, s. 0.1(1). Subsection 0.1(2) further states that the “purpose of education is to provide students with the opportunity to realize their potential and develop into highly skilled, knowledgeable, caring citizens who contribute to their society.” The Board, as a “partner[] in the education sector” has “a role to play in enhancing student achievement and well-being, closing gaps in student achievement and maintaining confidence in the province’s publicly funded education systems.” Education Act, s. 0.1(3).
[55] The focus of the Education Act is thus the public education system and the well-being and achievement of the students who participate in it, with the goal of ensuring they develop into caring, contributing citizens. It is the Board, and therefore its Trustees, who are in service to these objectives and not the public education system that serves a trustee’s objectives. This is made clear by the responsibilities of the Board under s. 169.1(1) of the Education Act, which includes, among others, promoting student achievement and well-being; the prevention of bullying; and “a positive school climate that is inclusive and accepting of all pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability[.]” The responsibilities under s. 169.1(1) of the Act are reinforced under s. 218.1, which requires that board members carry out their responsibilities in a manner that assists the board in fulfilling its duties, including under s. 169.1 of the Act, to maintain focus on student achievement and well-being, and to comply with the board’s code of conduct.
[56] The Board’s role in enhancing student well-being and maintaining public confidence under s. 0.1(3) of the Act is best served by ensuring good governance and adherence to the Code of Conduct. The preamble to the Code of Conduct recognizes that TCDSB Trustees have been entrusted with the education of all students in the community they serve and that the public is “entitled to expect the highest standard from the school trustees that it elects.” The Board should be responsive to the community and students it serves. In view of the legislative objectives, the Board and Trustees’ duties and the need for public confidence in the public education system, it was reasonable for the Board to apply the Reconsideration Provision to the Applicant’s Code of Conduct matter and to consider whether it might have got it wrong the first time.
[57] The Applicant’s submission, that the Board could apply the Reconsideration Provision to a finding of a breach but not a finding of no breach of the Code of Conduct has no basis in the statutory language of s. 218.3 or the Reconsideration Provision.
[58] Moreover, the Applicant’s submission that once a motion fails to obtain the requisite two-thirds majority to find a Code of Conduct breach, it can only be challenged by an application for judicial review, is impractical and cumbersome. Such a process would make it more difficult to ensure compliance with the Code of Conduct and would be contrary to the objectives of the legislation.
[59] Further, I would note that if the Education Act provided, as the Applicant suggests, a complete procedural code for Code of Conduct matters, the Board would not have had the authority to require a two-thirds majority to find a breach of the Code of Conduct under the By-law. The requirement of a two-thirds majority is also an aspect of the Board’s ability to govern its own processes. Had a simple majority been sufficient, the First Decision would have resulted in a determination that the Applicant breached the Code of Conduct.
[60] Accordingly, the Board’s application of the Reconsideration Provision to reconsider the First Decision was reasonable in view of the text, context and purpose of s. 218.3 of the Education Act and was not an exercise in reverse-engineering to obtain the desired result. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court noted an exception to functus officio for administrative reconsiderations:Functus Officio
[70] The general common law rule is that a decision-maker 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 held that:As a general rule, once 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 [certain] exceptions….” [71] The Supreme Court went on to say that the principle should not operate 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: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552, at para. 6.
[72] Where the administrative decision-maker has authority to reconsider, it would not be functus officio: Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252, at paras. 62, 67-68. In that case, the Court of Appeal found that the express statutory authority to reconsider unsubstantiated complaints implied that there was no authority to reconsider substantiated complaints.
[73] Moreover, in Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2002), O.R. (3d) 245 (Div. Ct.) at paras. 26-27, this court found that the Building Materials Evaluation Commission had an implied legislative authority to reconsider decisions where public health and safety issues warranted. In doing so, the court cited the following paragraph from David Mullan:[T]he prohibition on reconsiderations or rehearings was in the past explained as functus officio, res judicata, or estoppel by record. However, the rule applicable to administrative authorities is much more flexible than the doctrine of functus officio in regular court proceedings. Rather, it is more a general operating principle or rebuttable presumption. Finality in administrative proceedings is in general desirable but that may have to give way to other indicators either in statutory language, the nature of the process, or derived from the considerations of justice. [74] In this case, the doctrine of functus officio did not apply to preclude reconsideration because the Reconsideration Provision provided the Board with the authority to reconsider. Based on the analysis above regarding the Reconsideration Provision, s. 218.3 and the duties of the Board under the Education Act, it was reasonable for the Board to find that it was not prohibited by the doctrine of functus officio from reconsidering the First Decision. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considers, and dismisses, arguments by the school board trustee applicant that reconsiderations prima facie violate issues of "principles of res judicata, issue estoppel, abuse of process, functus officio and double jeopardy". I don't find the court reasoning compelling (as below), but the inherent conflict between these doctrine and reconsiderations is noteworthy.
An interesting aspect of these conclusions is that the jurisdictional basis of reconsiderations in the first place was earlier at issue - and these res judicata arguments fell only after the reconsideration jurisdiction was established as reasonable. It seems to me that that they should have been applied against the 'reasonableness' of this reconsideration jurisdictional issue in the first place, as opposed to the conclusion on jurisdiction being applied to counter the applicant's arguments on these doctrines later on.:Was the Reconsideration Decision Reasonable in Light of the Doctrines of Res Judicata, Issue Estoppel, Abuse of Process and Functus Officio?
[61] The Applicant further submits that it was improper and contrary to the principles of res judicata, issue estoppel, abuse of process, functus officio and double jeopardy for the Board to reconsider the First Decision, which was, in his words, an “acquittal.”
[62] The Respondent submits that the principles of res judicata, issue estoppel, abuse of process, functus officio and double jeopardy have no application because the Board had authority to reconsider the First Decision. The Respondent further submits that even if those principles applied, the Board’s decision to reconsider was a reasonable exercise of its discretion.
Res Judicata and Issue Estoppel
[63] In my view, the Board’s conclusion that it was not precluded from reconsidering the First Decision by the principles of res judicata or issue estoppel was reasonable. As discussed above, the Reconsideration Provision authorizes the Board to reconsider its decisions, including in relation to Code of Conduct matters. Where such reconsideration is authorized, “[t]here is no finality to a tribunal’s decision for the purpose of issue estoppel”: D.J. Lange, The Doctrine of Res Judicata in Canada, 5th Ed., Ch. 2.6.
[64] Moreover, the Board’s decision not to apply the doctrine of issue estoppel is an exercise of discretion to achieve fairness in the circumstances: Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, 293 O.A.C. 248 at para. 81. As a result, the Board’s decision not to apply the doctrine or res judicata is entitled to deference.
Abuse of Process
[65] The Applicant submits that it was an abuse of process for the Board to reconsider the First Decision and that the Board was “corrupted by political influences” to substitute its initial decision with a finding that he breached the Code of Conduct.
[66] Like the issue of res judicata, given that the Reconsideration Provision authorized the Board to reconsider the First Decision, its finding that reconsideration was not an abuse of process was reasonable. Contrary to the Applicant’s submission, it was not improper for the Board to reconsider.
[67] Moreover, in my view, the nature of the decision-maker and process are relevant to this issue. Given the nature of the Board as a body of democratically elected Trustees responsible to their constituencies, teachers, students and staff, the Board is different from a court or an adjudicative tribunal. When the Board considers a Code of Conduct matter, it is acting in a more adjudicative role than it does when ordinarily considering matters of policy. However, pursuant to s. 218.3, such a decision is nonetheless made at a public meeting by resolution of the Board and not at an adversarial hearing with processes akin to courts or adjudicative tribunals. As a result, it is not unreasonable for the Board to be responsive to the community as opposed to entirely insulated from it.
[68] 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.
[69] As a result, the Board’s decision that it was not an abuse of process to reconsider the First Decision was a reasonable one.
Functus Officio
[70] The general common law rule is that a decision-maker 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 held that:As a general rule, once 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 [certain] exceptions….” [71] The Supreme Court went on to say that the principle should not operate 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: Canadian Union of Public Employees, Air Canada Component v. Air Canada, 2014 ONSC 2552, at para. 6.
[72] Where the administrative decision-maker has authority to reconsider, it would not be functus officio: Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252, at paras. 62, 67-68. In that case, the Court of Appeal found that the express statutory authority to reconsider unsubstantiated complaints implied that there was no authority to reconsider substantiated complaints.
[73] Moreover, in Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission (2002), O.R. (3d) 245 (Div. Ct.) at paras. 26-27, this court found that the Building Materials Evaluation Commission had an implied legislative authority to reconsider decisions where public health and safety issues warranted. In doing so, the court cited the following paragraph from David Mullan:[T]he prohibition on reconsiderations or rehearings was in the past explained as functus officio, res judicata, or estoppel by record. However, the rule applicable to administrative authorities is much more flexible than the doctrine of functus officio in regular court proceedings. Rather, it is more a general operating principle or rebuttable presumption. Finality in administrative proceedings is in general desirable but that may have to give way to other indicators either in statutory language, the nature of the process, or derived from the considerations of justice. [74] In this case, the doctrine of functus officio did not apply to preclude reconsideration because the Reconsideration Provision provided the Board with the authority to reconsider. Based on the analysis above regarding the Reconsideration Provision, s. 218.3 and the duties of the Board under the Education Act, it was reasonable for the Board to find that it was not prohibited by the doctrine of functus officio from reconsidering the First Decision.
[75] Accordingly, for all the foregoing reasons, the Reconsideration Decision was reasonable. . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court notes that res judicata is prima facie contrary to the concept of administrative reconsideration:[63] In my view, the Board’s conclusion that it was not precluded from reconsidering the First Decision by the principles of res judicata or issue estoppel was reasonable. As discussed above, the Reconsideration Provision authorizes the Board to reconsider its decisions, including in relation to Code of Conduct matters. Where such reconsideration is authorized, “[t]here is no finality to a tribunal’s decision for the purpose of issue estoppel”: D.J. Lange, The Doctrine of Res Judicata in Canada, 5th Ed., Ch. 2.6. . Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario
In Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court affirmed the HRTO practice that a member that hears the main hearing may also hear the request for reconsideration:Was it procedurally unfair for the same HRTO Vice-Chair to hear the request for reconsideration?
[21] The same Vice-Chair of the HRTO rendered the original decision in this matter, as well as the reconsideration decision. There was no conflict of interest or apprehension of bias based on the Vice-Chair reconsidering her own decision.
[22] The HRTO is authorized to reconsider its own decisions pursuant to s. 45.7 of the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”). The HRTO’s Practice Direction on Reconsideration provides guidance to litigants with respect to the reconsideration process. This practice direction advises that it is likely a request for reconsideration will be heard by the same adjudicator. It states:In most cases, the request will be assigned to the same adjudicator who made the decision which is the subject of the request. This practice has been endorsed by the courts because the original decision maker may be in the best position to know whether a reconsideration request raises new issues or submissions. [23] This Court has repeatedly upheld the Tribunal’s entitlement to determine which of its adjudicators may decide a request for reconsideration. As stated in Aggarwal, at para. 75: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.). . Kawa Arab v. Unica Insurance
In Kawa Arab v. Unica Insurance (Div Court, 2022) the Divisional Court considers the standard of review on a reconsideration under a License Appeal Tribunal SABS auto insurance case:[20] The Court’s review of a Reconsideration Decision is narrower than the review of an Adjudicator’s decision by the Vice Chair who undertakes the review. The question for the Court is to determine whether in her reconsideration of the underlying decision, the Vice Chair erred in law in the way she conducted the review or in her decision. . Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario)
In Fox North Bay Inc. v. Registrar (Alcohol and Gaming Commission of Ontario) (Div Court, 2022) the Divisional Court made the obvious point that, in some situations, reconsiderations can correct procedural unfairness:[51] It is certainly true that reconsideration by a tribunal can cure procedural defects in an earlier decision: Khan v. University of Ottawa, 1997 CanLII 941, 34 O.R. (3d) 535, at p. 548; Interpaving Ltd. v. Greater Sudbury (City), 2018 ONSC 3005 (Div. Ct.), at para. 40. However, in this case there were two flawed processes which resulted in the employment ban being imposed and then left in place. . Zhao v. Chao (2)
In Zhao v. Chao (2) (Div Court, 2022) the Divisional Court considered the doctrine of functus officio in an administrative context, here before the LTB where it reconsidered it's initial oral ruling during that oral hearing (not as a formal SPPA s.21.2 review under the LTB Rules):[25] The Board is not functus officio from a legal perspective until it signs its order. While it is not generally good practice to provide an oral ruling and then to immediately counter-mandate it, mistakes will happen. The process before the Board is informal. It was open to the Board to consider the tenant’s argument that the Board had overlooked the evidence. It was open to the Board then to reconsider its ruling as it did here, and it was open to the Board to decide that it had jumped the gun and to hear further evidence and argument and then to render a final decision on the issue.
[26] I note that there is a procedure that the Board has for review of its decisions after they have been rendered formally, and this sort of issue could be addressed on a review hearing. That being the case, it is not inconsistent with Board’s practice for the Board to be prepared to reconsider a ruling that it has made orally in the course of a hearing that has not yet been concluded and then to continue the hearing on the basis of its revised view of the issue.
[28] The hearing could have unfolded that way and if it had, it could have been unfair, but I do not accept that it did unfold that way. On the transcript, it is apparent that the Board immediately reversed itself and continued to hear evidence about the possessions and their value including inviting the landlord to make submissions on that issue, and I find that on the basis of the transcript and the process that happened that the landlord could not have possibly misunderstood that the Board had reopened the issue and was considering evidence and arguments on the point.
[29] Taking everything into account, I see no error in law in the process followed by the Board and no unfairness resulting to the landlord as a result of the Board making an interim ruling and then immediately reversing itself in the middle of the hearing. . Warren v. Licence Appeal Tribunal
In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered whether a tribunal member reconsidering their own ruling was procedurally unfair (it wasn't):[10] This court has found that in the human rights regulatory context, it is not a breach of procedural fairness, and does not raise a reasonable apprehension of bias, where a tribunal member reconsiders his or her own decisions. In both Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at paras. 15-17 and Taucar v. Human Rights Tribunal of Ontario, 2017 ONSC 2604 at paras. 90-99, this court dismissed challenges to the Human Rights Tribunal of Ontario's reconsideration process which, like the LAT's, also involves members reviewing their own decisions.
[11] In Decosse v. Miklos, 2019 ONSC 6034, this court similarly found that reconsideration by members of their own decisions at the Landlord and Tenant Board does not breach procedural fairness or raise a reasonable apprehension of bias, holding at paras. 25-26:The LTB receives many thousands of applications each year and is required to adopt the most expeditious method of determining the questions arising in a proceeding that affords to all parties an adequate opportunity to know and address the issues being heard. To that end, s. 25.0.1 of the Statutory Powers Procedure Act gives the LTB the power to determine its own procedures and practices and to establish its rules.
...
Given the nature of a review, that there is a right of appeal from the LTB (albeit restricted to questions of law) and the LTB’s ability to establish rules to ensure that reviews are handled expeditiously, we see no breach of procedural fairness or natural justice in having an LTB Member review her own decision… [12] The practice of members reconsidering their own decisions is a familiar feature in the administrative law landscape. Along with the Human Rights Tribunal of Ontario and the Landlord and Tenant Board, similar practices are followed by the Information and Privacy Commissioner of Ontario, the Ontario Labour Relations Board, the Workplace Safety Insurance Board, the Workplace Safety and Insurance Appeals Tribunal, the Financial Services Tribunal and Health Services Appeal and Review Board.
[13] Having members reconsider their own decisions contributes to the goal of efficiency and expeditiousness since the adjudicators know the file and are therefore best placed to assess the issues raised in a reconsideration request. Reconsideration under the LAT Rules is not a hearing de novo or an appeal: it is a corrective mechanism which allows an adjudicator to correct overriding errors or fundamental evidentiary concerns. I agree with Aston, J. in Landau v. Ontario (Minister of Finance), 2012 ONSC 6926 at para. 16: “The mere fact that an adjudicator determines a request for reconsideration of his or her own decision does not, in and of itself, create a reasonable apprehension of bias in the context of this legislative scheme.” This is consistent with Bagherian v. Aviva Insurance Company at para. 12.
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