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Administrative - Reconsiderations (4). 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. . Adam v. Aviva General Insurance Company
In Adam v. Aviva General Insurance Company (Div Court, 2024) the Divisional Court dismissed an appeal of a LAT SABS decision "which found that she failed to demonstrate entitlement to post-104 week income replacement benefits (“IRBs”) pursuant to s.6(2) (b) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“SABS”)".
Here the court held that new leading case law did not "constitute new evidence" for reconsideration purposes:Issue 1: Did LAT err in law in finding that new binding case law, Varriano v. Allstate Insurance Company of Canada (“Varriano”), 2023 ONCA 78, is not evidence for the purpose of a request for reconsideration under LAT Rule 18.2(d)?
[5] A new decision from a higher court does not constitute new evidence that can be relied upon for a reconsideration request: see Jhajj v. Canada (Minister of Employment and Immigration), 1995 CanLII 3583 (FC), [1995] 2 FC 369, where the court rejected a similar request for reconsideration because recognizing new jurisprudence as evidence could have the effect of (1) inundating lower courts with reconsideration requests (paras. 32-34), and (2) could subject settled cases to re-litigation, contrary to established legal principles (paras. 35-37). . M.I. v. Administrator, Ontario Works Region of Peel
In M.I. v. Administrator, Ontario Works Region of Peel (Div Court, 2024) the Divisional Court considered an appeal against a SBT welfare finding that a single-parent-eligible recipient was co-habiting with her husband, assessing both a significant over-payment and a disentitlement. Appeals under the Ontario Works Act are limited to 'questions of law' [OWA s.36(1)].
The appellant obtained supportive FIPPA records of her file after a first SBT reconsideration was decided against her. On that basis, she then sought a second reconsideration which was denied with 'boilerplate reasons', which she then appealed successfully on Baker procedural fairness grounds of 'inadequate reasons':[5] The central question on this appeal is whether the Tribunal breached procedural fairness when it issued boilerplate reasons denying the second request for reconsideration. The Tribunal issued a decision with a single paragraph of substantive reasons that repeated the identical paragraph provided in response to the first reconsideration decision. The appellant submits the Tribunal erred by ignoring relevant evidence from the Ontario Works file and/or by providing inadequate reasons. She goes on to argue that, in its initial decision, the Tribunal applied the wrong legal test in determining whether the appellant’s husband was a dependant spouse and relied on discredited stereotypes and Western assumptions in assessing the appellant’s credibility.
[6] For the reasons that follow, I conclude the Tribunal breached procedural fairness by providing inadequate reasons. Because I find a breach of procedural fairness, I do not address the appellant’s submissions, nor the related submissions of the intervener, regarding the merits of the original Tribunal decision. The matter shall be remitted to the Tribunal to be determined at a de novo hearing.
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[8] For questions of procedural fairness, the court will determine whether the requisite level of procedural fairness has been accorded by considering the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
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Did the boiler plate reasons dismissing the second reconsideration request deny the appellant procedural fairness?
[9] The respondent submits the reasons on the second reconsideration decision did not deny the appellant procedural fairness. From its perspective, the appellant did not provide any new evidence that would have had a material effect on the decision, especially since the evidence could have been obtained with reasonable diligence for the original hearing. It also emphasizes that the reasons should be read in the context of the evidentiary record and that less detailed reasons may be required where the decision is apparent from the record.
[10] I disagree that the reasons were adequate in the circumstances. The duty of fairness is flexible and may vary based on all the circumstances. Baker lists the following factors to consider in assessing the requisite degree of procedural fairness in a particular case: (a) the nature of the decision; (b) the statutory scheme; (c) the importance of the decision; (d) the legitimate expectations of the person challenging the decision; and (e) the choice of procedure made by the decision-maker. As detailed below, I find that in this case, those factors weigh in favour of a decision that addressed the appellant’s new evidence and arguments on the second reconsideration request including whether and why that evidence was accepted or rejected.
Nature of the Decision and Statutory Scheme
[11] The nature of the decision and the statutory scheme do not weigh in favour of detailed reasons in all cases, though, in my view, comprehensive reasons may be required in some cases.
[12] The decision at issue was a second reconsideration request following an appeal and first reconsideration request. The Act provides for an appeal of the administrator’s decision to the Tribunal: s. 28(1). The appeal itself incorporates procedural protections at the high end of the spectrum. It involves an oral hearing at which the parties are entitled to provide written submissions and oral evidence. The Tribunal is also required to give reasons for its decision: s. 31(2). In this case, the Tribunal delivered a 13-page written decision upholding the administrator’s decision.
[13] The statutory scheme also provides for reconsideration requests, including second reconsideration requests. Section 79 of the General Regulation under the Act permits a person to file a request for reconsideration of a Tribunal decision within 30 days. The other parties are entitled to make written submissions in response to the request and the Tribunal is required to issue a decision on whether to hold a reconsideration hearing.
[14] The Tribunal’s Practice Direction on Reconsideration Requests recognizes the grounds on which a reconsideration hearing may be granted, including jurisdictional error, a violation of the rules of natural justice or procedural fairness, serious errors of law and new evidence that is material and was unavailable. The practice direction also recognizes the possibility of subsequent requests for review, stating that they will not be granted absent “exceptional circumstances.” This could include where “a failure to grant a subsequent reconsideration would result in serious procedural or substantive unfairness to a party.”
[15] Where a second reconsideration request is granted, I agree with the respondent that the Tribunal is not required to give reasons. Barnes v. Ontario (Social Benefits Tribunal), [2009] O.J. No. 3096 (Div. Ct.) explains why there is good reason for the Tribunal not to provide reasons when granting a request for reconsideration. As the Court stated at para. 31, in that situation, reasons would inevitably touch on the substance of the request, which could influence the member who eventually presided at the hearing.
[16] But this reasoning does not apply to the denial of reconsideration requests, where there is no subsequent re-hearing and where the appellant’s rights are finally determined (subject to appeal). In Barnes, at para. 31 the Court also noted that it was the Tribunal’s practice to provide very brief reasons for denying an application for a reconsideration hearing. I agree this will be appropriate in many cases. A reconsideration request is a subsequent procedural option available to an appellant who has already had a full hearing before the Tribunal. It occurs in writing. Given the Tribunal’s substantial case load, there is a benefit to the Tribunal being able to deal with these matters expeditiously. In many cases, particularly where the submissions on the reconsideration mirror arguments made at the original hearing or the first reconsideration request comprehensive reasons will not be necessary.
[17] However, the requirements of procedural fairness must be determined on a case-by-case basis. Given that a party may be alleging serious procedural or substantive unfairness on the second reconsideration request and that the denial of a reconsideration request finally determines the party’s rights, procedural fairness requirements are higher than where a reconsideration hearing is granted. In some cases, procedural fairness may require more comprehensive reasons.
Importance of the Decision
[18] The decision in this case was important. It finally determined the appellant’s rights to what was described as “last resort income assistance” serving some of the most vulnerable people in our province. In this case, although the Tribunal questioned the appellant’s relationship with her husband, there is little doubt that she suffered violence in the relationship given the police involvement in Vancouver, which restricted her husband’s contact for two years. She moved to Toronto on her own with three children.
[19] It should be noted that by the time of the Tribunal hearing, the appellant’s husband had moved into her apartment and was working as an Uber driver. The appellant testified before the Tribunal that the situation was “complex.” She said he still gambles and refuses treatment for a mental health condition that has resulted in multiple suicide attempts over the years. She submits before this Court that his return after the cancellation of her income assistance should not be used against her since it “reinforces the sad reality that legal errors entrapped [her] with her abuser.” The Tribunal did not make any findings on the reasons for the appellant’s husband being added by the landlord to the lease. But there is little doubt that the appellant is vulnerable. A decision to cancel her last-resort income assistance and charge her an overpayment of more than $95,000 is very serious.
Legitimate Expectations of the Appellant
[20] There is no express requirement in the Act or its regulations for the Tribunal to provide reasons for dismissing the second reconsideration request. However, given the importance of the decision, it was reasonable for the appellant to expect reasons and indeed it appears to be the Tribunal’s practice to provide at least brief reasons. The degree to which those reasons need to be comprehensive will depend on the specific circumstances of the case.
Choice of Procedure Made by the Tribunal
[21] The Tribunal’s choice in this case was to provide very brief reasons that repeated the reasons responding to the first reconsideration request. Deference to this choice of procedure will not always be warranted. The Tribunal’s practice direction allows for the possibility of appellants bringing forward new evidence that would have a material effect on the decision. The practice direction also recognizes that serious procedural or substantive unfairness may need to be rectified on reconsideration. In these circumstances, procedural fairness may require more comprehensive reasons. At paras 22-35 the court applies the case facts to the Baker procedural fairness test, set out above:Application to this Case
[22] In this case, the new evidence and submissions on the second reconsideration request were highly material and had the potential to impact the outcome. The evidence was material to two issues: (1) the Tribunal’s negative assessment of the appellant’s credibility; and (2) the appellant’s evidence that her husband did not live with her. The brief reasons the Tribunal provided did not meet procedural fairness requirements in the context of this additional evidence.
[23] Turning to the first issue, the evidence was material to assessing the appellant’s credibility. The Tribunal’s negative assessment of the appellant’s credibility arose from her testimony about the nature of her relationship with her husband and what she had previously told the administrator about that relationship.
[24] The appellant testified before the Tribunal that she continued to be legally married to her husband but was not “religiously married” and that her marriage would not be viewed as valid in her Muslim religion. She explained that she did not know when her husband would be in Canada but when he came, he would stay with her for maximum less than a month. She stated that she had always been honest with the administrator regarding her marital situation. She also alleged the administrator told her to apply for benefits as a single person.
[25] The Tribunal found the appellant’s assertion that she had been honest about being married and that she was told to apply as a single person “less than believable.” The Tribunal member stated at para. 27 of her reasons:The Tribunal finds this assertion less than believable and not supported by any credible and compelling evidence. The evidence shows the Appellant had clearly represented herself as being “separated” and denied the existence of any dependant living elsewhere during contact with the Administrator. [26] The second way in which the additional evidence was material relates to the appellant’s evidence that her husband did not live with her. The Tribunal member rejected the appellant’s evidence that her husband only stayed with her sometimes for less than a month, stating at para. 33:The Tribunal finds the Appellant’s claim that IB [the appellant’s husband] was not her spouse because they were separated, and IB only stayed with her sometimes for less than a month at a time to be less than credible given the other, more compelling, and consistent evidence establishing otherwise. [27] The Tribunal relied on Ministry of Transportation records in which the appellant’s husband had been reporting his primary residence as the appellant’s apartment. She also relied on the appellant’s CRA information in which she had consistently indicated her husband was her spouse.
[28] The additional evidence submitted by the appellant on the second reconsideration request was directly material to these two points. The appellant filed case worker notes that she submitted corroborated her oral testimony that she had told her caseworker she was married and her situation with her husband was complex. The notes provide direct evidence of her disclosing they were married, that he was away in Pakistan and that he resided outside Canada. They also reference the complexity of the situation due to his mental illness. The caseworker notes include the following:. A note from March 8, 2016 stating: “Client declared that her spouse suffers from mental illness and has severe depression and has attempted suicide. Currently spouse is in Pakistan due to his illness to be close to his family. Client declared that she herself feels very anxious.”
. A note from September 29, 2016 stating: “She has lived through the traum[a] of her spouse trying to commit suicide 5 times while raising their 3 children. He now resides outside Canada.”
. A note from August 12, 2019 stating: “Client submitted a hand written note to indicate that her spouse is not currently in Canada, however, on December 31, 201[8] he was in the country. She further states he uses her address. Client submitting a note indicating she is not divorced and therefore still considers herself as married. She states that her spouse is not in the country.”
. A handwritten note estimated to be from 2020 in which the appellant states that she is still legally married but her husband spends most of his time out of the country: “Since we do not communicate often I am not aware of his actual address. To the best of my knowledge, he is residing in Pakistan. He occasionally return [sic] to Canada but spends majority [sic] of his time out of country and I am not aware of his plans to return. He last resided in Canada in September 2019.”
. The appellant had filled out an Ontario Works form entitled “Pursuit of Support from Absent Person” documenting efforts to pursue support from her husband. [29] The evidence also included documents that the appellant said demonstrated she lived in her apartment alone with her three children and without financial support from, or dependence by her husband. The evidence included the following documents only in her name: her apartment lease; utility, water, and wastewater bills; two bank accounts and a mutual fund RESP family plan; and credit card statements. The bank statements only in her name showed withdrawals for Bell Canada and Enbridge bills.
[30] In short, the submissions on the second reconsideration request do not simply repeat or provide a minor variation on what the Tribunal heard at the first hearing. They provide substantial new documents potentially demonstrating her sole financial responsibility for the apartment. They also provide documents demonstrating specific information provided to the caseworker about her marital status and her husband’s whereabouts that could be material to the Tribunal’s adverse credibility findings.
[31] In the context of these submissions, the substantive reasons of the Tribunal on the second consideration request repeat the same brief, generic paragraph as the decision dismissing the first reconsideration request:It is the responsibility of the SBT member to reach a decision based on the oral and written evidence presented at the hearing. In my view, the decision is both correct and in accordance with the legislation and relevant case law. The member’s reasons are clear and complete and there is no need to repeat them here. Therefore, it is not my view that a reconsideration hearing is warranted in this matter. [32] These reasons do not advert in any way to the additional evidence and submissions. Given the impact of the decision on the appellant and the materiality of the evidence in her second reconsideration submissions, these reasons were inadequate.
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[35] The Tribunal’s practice direction on subsequent reconsiderations recognizes the possibility of a second reconsideration hearing where the failure to grant it would result in serious substantive unfairness. The new evidence here is highly material, was never considered by the original adjudicator, and relates in part to the appellant’s credibility. In my view, the new evidence raises a sufficient prospect of serious substantive unfairness that the matter should be remitted to the Tribunal for a hearing de novo.
Disposition
[36] The appellant raised additional submissions contesting the merits of the Tribunal’s original decision. She has asked the court to overturn the cancellation of her benefits and rescind the overpayment assessed against her. She views an order remitting the matter to the Tribunal as an alternative remedy. Given my conclusion that the Tribunal breached procedural fairness, the most appropriate remedy is to remit the matter to the Tribunal to give it an opportunity correct the procedural error. The new information raises sufficiently serious concerns that it is appropriate for the court to determine on the written record that a de novo hearing should be ordered for the Tribunal to fully address the evidence. The matter is therefore remitted to the Tribunal for a new hearing. As agreed by the parties, there shall be no order for costs.
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