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Administrative - Reconsiderations (5). Atkinson v. Economical
In Atkinson v. Economical (Ont Div Ct, 2026) the Ontario Divisional Court allowed an appeal-JR, this from an unusual LAT (SABS) tribunal reconsideration issue - here where the applicant challenged "the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal". The case also involved a parallel HRTO application alleging discrimination in the LAT process.
The case involved the scope of administration reconsideration [SPPA s.21.2], and it's interaction with administrative (versus court) functus officio:Issue #1- The LAT’s Jurisdiction
[36] The decision under challenge on this issue is the LAT’s decision of September 12th, 2025, cancelling the LAT’s previous two decisions. The Applicant challenges the LAT’s jurisdiction to issue a second reconsideration decision more than a year after their original reconsideration decision was issued and while the decisions were the subject of both a judicial review and an appeal. Determining this issue requires consideration of both the statutory provisions and the doctrine of functus officio.
Statutory Provisions
[37] The jurisdiction of a statutory tribunal is entirely circumscribed by statute: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, (2009) 98 O.R. (3d) 677 at para. 18. As a result, the starting point in my analysis is what does the statute, and the accompanying rules permit the LAT to do in this case?
[38] Section 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) gives a tribunal the authority to review all or part of its own decision or order, and the authority to confirm, vary suspend or cancel the decision or order. This provision only applies if the tribunal has made rules under section 25 of the SPPA giving it the authority to review decisions. This power is broader than the power to correct typographical, calculation or similar type errors. The power to correct typographical errors is given to a tribunal automatically and may be exercised “any time”: SPPA, section 21.1.
[39] The LAT’s Rules of Procedure specifically set out the reconsideration process in Rule 18. Rule 18.1 sets out the fact that a request for reconsideration can be made by a party within twenty-one (21) days of the Tribunal’s decision. These reconsideration decisions “may” be heard by the same Member who heard the original case.
[40] The criteria for granting a reconsideration are set out in Rule 18.2, which states:18.2 CRITERIA FOR GRANTING RECONSIDERATION
The Tribunal shall not make an order under 18.4(b) unless satisfied that one or more of the following criteria are met:a. The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b. The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c. There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result. [41] The LAT also has the authority to review decisions on its own initiative. Rule 18.5 states:18.5 REVIEW ON OWN INITIATIVE
At the discretion of the Chair or delegate, the Tribunal may, on its own initiative, review any decision of the Tribunal. The Tribunal's review shall take place within a reasonable time after the decision or order is made.
When conducting a review on its own initiative, the Tribunal shall not make an order under Rule 18.4(b) unless it is satisfied that one or more of the criteria in Rule 18.2 are met. Before making such an order, the Tribunal will provide the parties with an opportunity to make submissions. [42] Therefore, the LAT has the authority to reconsider decisions on its own initiative, as long as it does so within a “reasonable” time. The question of what is reasonable is important to the disposition of this appeal. There is also an issue of whether the LAT can reconsider a decision a second time, given the doctrine of functus officio. I turn to those issues now.
The Scope of the LAT’s Authority to Reconsider
[43] In assessing whether the LAT had the authority to reconsider the decision when they did, the factual matrix must be remembered. The original LAT decisions had been made more than a year and a half prior to the September 12th, 2025, decision. The Appeal of the LAT’s decision had been brought at the end of 2023 and the judicial review application was brought at the beginning of 2005. By the time the LAT began the process to reconsider its’ decision for a second time, Ms. Atkinson’s appeal and judicial review application were fully perfected and ready for hearing before the Divisional Court.
[44] This factual matrix must also be considered against the backdrop of both the broad wording of Rule 18.5 and the principles of functus officio. For Courts, the general rule is that final decisions cannot be reopened. Given that the decisions of administrative tribunals are not subject to an automatic right of appeal, the rules are more relaxed for them. As the Court noted in Chandler v. Association of Alberta Architects, 1989 CanLII 41, [1989] 2 S.C.R. 848 (at pages 861-2):I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason, I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [45] These principles have been explained by this Court in Windsor (City) v. Ontario Nurses’ Association, 2019 ONSC 6883, (2019) 148 O.R. (3d) 701 at paras 11-14:[11] The doctrine of functus officio exists in order to import finality into legal proceedings. In general, a tribunal cannot revisit [page704] a case it has already decided. However, the doctrine is not absolute. It is subject to exceptions.
[12] Some of these exceptions are identified in Chandler v. Assn. of Architects (Alberta), 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102. For example, the court cites the ability of an adjudicator to "correct clerical mistakes or errors arising from an accidental slip or omission": para. 22. It also recognizes statutory provisions that permit a tribunal to reconsider its decision: para. 76.
[13] The court in Chandler also adopted the exceptions set out in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186, [1934] S.C.J. No. 6, in which the court realized "some matter which should have been dealt with in the reasons has been overlooked" as an exception to the doctrine of functus officio: para. 76.
[14] Furthermore, the Chandler court recognized the ability of a court to reopen a decision "where there was an error in expressing the manifest intention of the court": para. 75. This exception to the functus officio rule was applied in N.S.G.E.U., at para. 41. [46] When these principles are considered, I am of the view that the LAT did not have jurisdiction to reconsider this decision a second time for two reasons.
[47] First, the statute requires the LAT to initiate a reconsideration decision within a “reasonable” time period. In this case, the LAT did not initiate a reconsideration decision for a year and a half after it had made the original decision. The time in this case was not a “reasonable” time period.
[48] The term reasonable must be read in conjunction with the twenty-one-day period that parties have in order to bring a reconsideration application. While the LAT does not have such a tight and specific timeline, this twenty-one day period informs the magnitude of the “reasonable” time period that the LAT has to reconsider a decision. The LAT’s rules intend for reconsideration applications to be brought promptly after the decision is rendered and the expectation is that it would generally be weeks.
[49] Second, permitting the LAT to review a decision a second time, after appeal and review proceedings have been launched in this court, without any direction from this court that it may do so, would be contrary to the doctrine of functus officio. The LAT argues that the decision in Plante represented a change in the law and gave the LAT the jurisdiction to reconsider the decision in this case. I disagree. In my view, the LAT’s reconsideration decision interferes with the principle of finality that underpins the doctrine of functus officio in administrative decisions. In CBC v. Manitoba, 2021 SCC 33, [2021] 2 S.C.R. 785, the Court underscored the importance of finality in decision-making, observing that if decision makers could constantly change their decisions, then the appeal record would be written on “shifting sands” and would preclude effective review. Although the Manitoba decision was decided in the course of a court process, that same principle applies in this case.
[50] More generally, the common law is constantly evolving. From time to time, appellate courts will change the law. The effect of those changes on previously decided cases are matters for the parties and the appellate court to work out. They are not matters that the original decision maker can fix.
[51] The LAT’s decision exceeds their jurisdiction as it breaches the finality principle. A tribunal modifying its decision in the shadow of an impending appeal or judicial review raises the “shifting sands” concern that the Supreme Court had in Manitoba. It would be difficult for this Court to effectively review an administrative decision if the decision-maker had the jurisdiction to change their decision in the weeks before the Court hearing. The proper course for the LAT, in all the circumstances, was that taken by the HRTO: to advise the parties that the LAT took the position that the decisions should be quashed by this court and then to consent to that relief in this court.
[52] The LAT’s approach in this case also engages some of the concerns that were present in Jacobs. In that case, the Ontario Labour Relations Board issued supplementary reasons at the request of the successful party and after a judicial review application had been launched. The Court of Appeal found that, where a tribunal had made a final decision with reasons, it did not have the jurisdiction to provide supplemental reasons. The parties were entitled to arrange their affairs on the basis of the final decision, including deciding whether to commence an appeal or seek judicial review. In addition, the Court found that providing supplementary reasons in these circumstances ran “the risk of giving the appearance of the [OLRB]’s attempting to ‘cooper up’ the decision.” (at para. 49).
[53] For these reasons, the September 12th, 2025, reconsideration decision of the LAT must be quashed as being beyond the LAT’s jurisdiction.
Conclusion
[54] Since the LAT did not have the jurisdiction to issue its second reconsideration decision (the September 12th, 2025 decision), then the original and first reconsideration decisions denying benefits continued in force until this panel quashed them at the hearing in November 2025. The parties all agreed that the original LAT decision and the first reconsideration decision could not stand, and I would accept that concession.
[55] Briefly put, in this case the LAT Member who originally heard this appeal, and heard the reconsideration application, made the same error of law as was made in Plante and his decisions cannot stand. Given that the September 12th, 2025, decision was beyond the jurisdiction of the LAT, the doctrine of mootness does not arise, and this Court was required to intervene in order to correct the previous two decisions. . Ashurova v. Canada (Attorney General) [s.30 CRBA reconsideration is de novo, and defeats fresh law argument against gov't]
In Ashurova v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, here brought against a JR decision that upheld a "Canada Revenue Agency (CRA) officer" decision that the appellant was "ineligible for the Canada Recovery Caregiving Benefit (the CRCB)" - a COVID-era federal income support program operated in concert with the CRB and the CERB.
Here the court notes that s.30 of the CRBA allows the the "authority to conduct a de novo review of a first-level decision at the request of a claimant authority to conduct a de novo review of a first-level decision at the request of a claimant", which it then applies to defeat (what appears to be) the appellant's 'fresh law' [my term] argument against the CRA:[15] .... As explained to the appellant during the hearing before this Court, the doctrine of functus officio does not apply to limit the CRA from providing reasons in its November 20, 2023 decision that were different from those it provided in earlier decisions. Section 30 of the CRBA provides authority to conduct a de novo review of a first-level decision at the request of a claimant authority to conduct a de novo review of a first-level decision at the request of a claimant. The appellant requested such a review. An additional review was conducted thereafter by agreement following the settlement of a previous judicial review application the appellant brought. That review led to the November 20, 2023 decision (which was the final CRA decision) and was a de novo review. This final CRA review cured any breaches of procedural fairness that might have previously occurred: Higgins v. Canada (Attorney General), 2018 FCA 49 at para. 17; McBride v. Canada (National Defence), 2012 FCA 181 at paras. 41–45. . Wilson v. Intact Insurance Company
In Wilson v. Intact Insurance Company (Ont Div Ct, 2025) the Ontario Divisional Court allowed an insured's joint appeal/JR, this from a LAT SABS ruling that denied them catastrophic impairments benefit.
Here the court considered the function of a reconsideration, here in a LAT SABS context:[36] In his initial decision, the Adjudicator found that Dr. Gallimore’s analysis was incomplete because he did not specify whether the medications were masking the impairments resulting from the accident, as opposed to causing further side effects. He therefore found that there was an insufficient basis to rate the applicant under this category and gave an assessment of 0% under this heading.
[37] On reconsideration, the applicant argued that this was an error of law because the Adjudicator failed to take into account the evidence of Dr. Farhadi regarding medications. Dr. Farhadi, who is a neurologist, also assigned 2% for the medications Ms. Wilson was on as a result of the accident. At the hearing, Dr. Farhadi testified that the combination of medications Ms. Wilson was taking since the accident may have “synergistic effects” on her including fatigue, dizziness, sleep/wake disturbances, and “other potential neurologic side effects.”[14] This evidence is relevant and determinative and was not taken into account by the Adjudicator.
[38] On reconsideration the Adjudicator refused to change his assessment, relying on the failure of counsel for the applicant to specifically direct him to the evidence of Dr. Farhadi in closing submissions on this point. The Adjudicator reasoned that he, therefore, committed no error himself. He held that the reference to Dr. Farhadi’s evidence in the reconsideration request was “new submissions being made for the first time” and stated that “a request for reconsideration is not an opportunity to re-litigate the case with new arguments.”
[39] This is an unreasonable decision in light of the evidence that was before the Adjudicator both in the first instance and on reconsideration. It cannot stand. This is an enormous record covering thousands of pages of material, some of it quite complex. It is understandable that some material can be overlooked, particularly if the Adjudicator was not specifically directed to it. However, Dr. Farhadi also testified on this issue and was cross-examined on it. It was important and determinative evidence and it should not have been disregarded, even in the original decision.
[40] While the original error by the Adjudicator is understandable, the position he took on reconsideration is not. One of the primary purposes of reconsideration is error correction. It is far easier for the Adjudicator to correct errors at this stage rather than forcing the parties into the judicial system to accomplish that purpose, not to mention considerably faster and more cost-effective. A trier of fact has an obligation to consider the whole of the evidence in reaching a conclusion. Here, the Adjudicator has acknowledged not taking into account the relevant and determinative evidence of Dr. Farhadi and seeks to excuse it on the basis that counsel did not specifically refer him to that evidence on this point. Again, he seeks to emphasize that he was not the one who made the mistake, and therefore there is no basis to change his position. This is completely without regard to the underlying purpose of the hearing, which is to make a fair decision based on the whole of the evidence. This should have been a simple issue of correcting an oversight. It is fundamentally unreasonable for the Adjudicator to refuse to change his position because counsel failed to direct him to specific relevant testimony that was on point. The reconsideration process is not about critiquing the thoroughness of the Adjudicator and holding him to account. It is about reaching the right result for the parties. When a mistake is discovered, an answer by the Adjudicator that it was not his fault completely misses the point of the reconsideration. Again, this is a decision that cannot stand. . Rocca v. Bayer [administrative reconsideration as final v interlocutory]
In Rocca v. Bayer (Ont Div Ct, 2025) the Ontario Divisional Court considers cross-appeals, these from an "order granting the request for review" of a costs order of a Normal Farm Practice Protection Board decision.
Here the court considers that reconsideration decisions can be final and interlocutory, depending on the circumstances:[27] In support of their position that the vice-chair’s order was final, the Bayers rely on 2541005 Ontario Ltd. v. Oro-Medonte (Township), 2023 ONSC 5569 (Div. Ct.). In that case, on a motion for leave to appeal to this court from a decision of the chair of the Ontario Land Tribunal granting a request for review, the motion judge held that the decision was final. However, Oro-Medonte is not and should not be taken as authority for the proposition that all orders granting a request for review are final. In fact, in Oro-Medonte, the motion judge said, at para. 32: “This court is not prepared to say that every Review Decision or Review Order will be final. There may well be circumstances that make the Chair’s decision/order interlocutory. This is not one of those circumstances.”
[28] In Oro-Medonte, the township had passed a zoning by-law amendment that restricted the growing of cannabis and industrial hemp crops to two industrial zones and did not permit such activities in agricultural zones. 2541005 Ontario Limited appealed the by-law amendment to the Ontario Land Tribunal. Following a hearing, the tribunal ordered the repeal of the by-law.
[29] The township then requested a review of the hearing decision under s. 23 of the Ontario Land Tribunal Act. Under rule 25.2 of the Tribunal’s Rules of Practice and Procedure, requests for review are considered by the Tribunal chair. Under rule 25.6, the chair has discretion to dismiss the request for review, order a motion to consider the request for review or grant the request for review in whole or in part.
[30] However, rather than simply granting the request for a review of the order, or ordering a motion to consider the request, the chair ordered that the order repealing the bylaw be “set aside and rescinded”, and that the appeal be reheard by a new panel. The basis of the order to set aside and rescind the order, rather than to simply allow the request for review, is unclear. Under rule 25.10 of the Tribunal rules, it is the Tribunal member or panel conducting the review hearing that has jurisdiction to “confirm, rescind, change, alter or vary” any order made by the Tribunal. Under rule 25.2, in order to provide for a rehearing under rule 25.10, it was unnecessary for the chair to set aside the original order. However, despite having said that the order was set aside and rescinded, the chair clarified that he did not intend to “prejudge in any way what outcome will result from the rehearing.” It would therefore appear that he did not intend to deal in any way with the merits of the appeal.
[31] On the motion for leave to appeal the chair’s order to this court, the motion judge found that it was final because it went “to the very heart of the matter. It overturned a lengthy Tribunal Hearing on its merits.” It was not “related to a procedural or collateral issue.” “It “went to the very foundation of this entire matter.” It dispose[d] of a substantive issue in the proceedings.”
[32] In my view, the present case may easily be distinguished. In Oro-Medonte, at the time of the motion for leave to appeal, no decision, approval or order remained extant which the new panel could confirm, rescind, change, alter or vary.
[33] Conversely, in the present case, Vice-Chair Neil did not purport to set aside or rescind the Board’s order. Rather, she granted the request for review, ordered a new costs hearing to take place in writing, and provided a timeline for the parties’ submissions. Accordingly, all that has happened so far is that a vice-chair has exercised her discretion to order a review of the costs order. The decision to confirm, vary, suspend or cancel the order will be made by a new panel of the Board. If the new panel confirms the existing costs award, there will be nothing for the Bayers to appeal.
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