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Human Rights (Ontario) Law
(30 September 2009)

Chapter 19 - Reconsiderations


  1. Overview and Comment
    (a) Overview
    (b) Comment
    . Background
    . Grounds
    . Inferior Procedures
    . Access to Judicial Review or Appeal
  2. Tribunal-Initiated Reconsiderations
    (a) Overview
    (b) Comment
    (c) 'Procedure' for Tribunal-Initiated Reconsideration
    (d) Orders Available on Reconsideration
  3. Party-Initiated Code Reconsiderations
    (a) Overview
    (b) Request for Reconsideration
    (c) Response to Request for Reconsideration
    (d) Criteria for Granting Requests for Reconsideration
    (e) Orders Available on Reconsideration

------------------------------


1. Overview and Comment

(a) Overview

Any party to a Code proceeding, or the Tribunal itself, may request that the Tribunal reconsider its decision within 30 days of its issuance [Code s.45.7(1,2); Rule 26.1].

The Tribunal has issued a Practice Direction on reconsiderations and I link it here for reference:

Practice Direction: Reconsideration

(b) Comment

. Background

Modern administrative proceedings have taken to adopting 'reconsideration' procedures after an application has been resolved in the normal course (ie. summary dismissal, or hearing and decision).

These amount to little more than a 'second-guessing' of the original Tribunal order by a second member, often on issues that were not frontally raised in the first hearing.

Successful requests for reconsiderations, like appeals, can (and typically do) result in the effective voiding of the earlier decision, and then, variably:
  • the ordering of a new 'de novo' hearing (as though the first had never happened);

  • a partial rehearing on specific, defined issues, normally with directions as to the conduct of the rehearing;

  • the reconsideration panel substituting its decision for that or the original panel, without any re-hearing.
The obvious civil court counterpart to a reconsideration is an appeal, but there are significant - and perhaps widening - distinctions between the two processes. These differences are discussed in turn below.
Note:
It is important when first considering reconsideration processes to distinguish between their two stages: (1) request for reconsideration and (2) reconsideration hearing. If a request for reconsideration fails, then no consideration hearing will be conducted. Some tribunals have been known in past to conflate (inappropriately merge) these two stages, for instance when they review a request for reconsideration and then immediately substitute their decision for the earlier one. Care must be taken to distinguish these two stages, which - at least as set out in the Tribunal Rules - appear to be appropriately segregated.
. Grounds

While the criteria for granting a civil court appeal is typically the presence of 'legal error' in the decision 'below', grounds for granting a reconsideration can be broader, and are often ill-defined. As well, as reconsiderations are typically heard and decided by senior members of the tribunal they can often reflect an institutional policy orientation that individual litigants resent as being based on issues that were not raised in the initial process, and that are unrelated to their substantive rights.

. Inferior Procedures

The traditional common law approach to court appeals is that the process which voids the lower court ruling must be superior (ie. heard by more experienced judges, attended with greater formality and focus).

Reconsideration processes, on the other hand, are typically inferior to the original hearing process in the sense that they are attended with fewer or poorer quality 'natural justice' procedures than attended the original hearing which it is voiding. 'Natural justice' is a term lawyers use to characterize how fair a litigation process is: ie. how attended it is with detailed procedures designed to ensure that all parties and all issues are given a full hearing on the merits of the case.

. Access to Judicial Review or Appeal

Any effort to subject a reconsideration decision to review by a court faces profound barriers.

First off, the Code - unlike most administrative tribunal parent statutes - does not provide for any statutory appeal procedure from its decisions, and there is no other appeal right from general tribunal decisions to fall back on.

Secondly, the only other available route to subject such a decision to appellate-type scrutiny is by way of 'judicial review' under the Judicial Review Procedures Act ("JRPA"). However the Code attempts to limit even this option by virtue of what is called a 'privative' clause [Code s.45.8; see Ch.20: "Judicial Review"], which purports to bar judicial review by a party unless the decision below is "patently unreasonable" (the Commission may in some circumstance seek a form of judicial review: see Ch.18, s.5 : "The Commission Role: Stating a Case to the Divisional Court"). While courts habitually disregard such clauses, or give them little weight, they are nonetheless barriers to judicial review, and reflect an odd legislative animosity to appellate-type review which is disturbing in a democracy.

Thirdly, there is a judicial review principle called 'prematurity', which purports to prevent judicial review until the decision being examined is 'final'. However much ambiguity exists as to what 'final' actually means in this context. The practical implication is that any attempt to judicially review a reconsideration decision voiding an earlier decision will likely be dismissed without being heard on its merits, the court essentially saying that the applicant should wait until the rehearing is decided be fore applying for judicial review (if it is still required): Barnes v Social Benefits Tribunal (Ont Div Ct, 2009) (argued unsuccessfully by the author).

Further, if judicial review is still sought after the rehearing it can be impeded, and even frustrated, if the order for a rehearing was not issued with any articulated reasons. In that case the order for a rehearing cannot be judicially reviewed at all, ever - effectively immunizing reconsideration hearings from judicial review in any form. This leaves administrative tribunal litigants in a far inferior legal position when contrasted with civil court litigants, who have clearly defined statutory appeal rights that apply to all decisions made in the course of their cases, both interlocutory and final. Further, as court litigants tend to be well-off corporations and wealthy individuals, while tribunal litigants are merely poor and middle class citizens, this disparity is profoundly unjust from a social class perspective.


2. Tribunal-Initiated Reconsiderations

(a) Overview

As noted above, the Tribunal itself, may request that the Tribunal reconsider its decision within 30 days of its issuance [Code s.45.7(1,2); Rule 26.1].

(b) Comment

Giving the Tribunal the ability to reconsider its own decision without party request may seem odd, even redundant - for surely the decision itself shouldn't be issued until it is fully considered. Further, such authority runs counter to the long-standing idea that courts and tribunals are above having motivations of their own other than impartiality.

Of course, allowing Tribunals to second-guess themselves is a stark object-lesson on the legally unacknowledged distinction (made earlier in Ch.7: "The Tribunal and its Powers") between the 'managing tribunal' and the 'presiding tribunal'. This authority plainly endorses the ability of the managing Tribunal to override the decisions of individual 'presiding members' in favour of its view of appropriate policy. Any consideration that Tribunal-initiated reconsiderations are undertaken by the Tribunal for the benefit of the parties is dispelled by the fact that there is no requirement that any of the parties to the original proceeding be consulted about, or consent to, the reconsideration. In fact a Tribunal-initiated reconsideration could proceed even against the wishes of the all original parties.

(c) 'Procedure' for Tribunal-Initiated Reconsideration

As noted immediately above, the Tribunal itself can initiate the reconsideration process. Of course, this is a lot like asking yourself whether you should re-upholster your chair - you can just decide on your own without any involved consultation. That being the case, to speak of a "Request for Reconsideration" with respect to the Tribunal is meaningless. There will be no practical distinction between the Tribunal's decision to seek reconsideration (from itself) and the granting of its own request [a de facto conflation to the two normal steps as is discussed in the Note at s.1(b) above].

This being the case there is no real requirement for a Rule to codify the (non-)process of a Tribunal-initiated reconsideration. However one has been created nonetheless, as follows:
Rule 26.9 The Tribunal may reconsider a decision on its own initiative where it considers it advisable and appropriate to do so.

Rule 26.10
Where the Tribunal decides to reconsider a decision on its own initiative, it will determine a procedure for rehearing all or part of the matter, which will include an opportunity for the parties to make submissions.
The language used here ["advisable and appropriate"] presumably is to weed out those otherwise 'inadvisable' and 'inappropriate' decisions that the Tribunal would be making willy-nilly but for this 'Rule'. This facade Rule was likely created to satisfy someone's instinctive reaction that any process which results in the voiding of an earlier 'full natural justice' hearing should at least have the pretense of due process. Make no mistake however, a Tribunal-initiated reconsideration is a unilateral act lacking any element of fairness or natural justice.

It is only when addressing party-initiated Requests for Reconsideration (below) that the Rules on this issue take on any substance.

(d) Orders Available on Reconsideration

The Tribunal Rules allow the following orders in the event that the Tribunal decides to reconsider its own decision [Rule 26.8]:
  • make a decision on the substance of the Request without further submissions from the parties, or

  • determine a procedure for rehearing all or part of the matter.
These are entirely in line with those available typically to other administrative tribunals as discussed in s.1(b) above. Note again that the first of them amounts to a dispensing with the conduct of a new (either full or partial) reconsideration hearing, and a simple direct substitution of the 'managing tribunal's' view for that of the original 'presiding tribunal's decision.

In addition to being a violation of the common law principle of res judicata [see s.1(b)] (which any reconsideration grant is), the direct substitution of the managing tribunal's view over that of the presiding tribunal's is also a blatant violation of the equally venerable common law rule of 'they who hear shall decide'.


3. Party-Initiated Code Reconsiderations

(a) Overview

As noted above, the term "Request for Reconsideration" only has meaning with respect to party-initiated reconsiderations (Rule 26 implicitly acknowledges this), as Tribunal-initiated reconsiderations are effectively unilaterally granted without party input [see s.2 above].

(b) Request for Reconsideration

A Request for Reconsideration must be served on all parties to the original proceedings, and filed, using [Rule 26.2]:

Form 20: Request for Reconsideration

The Request for Reconsideration must include (this will be called for in the Form) [Rule 26.3]:
  • reasons for the request, including the basis upon which the Tribunal is asked to grant the request for reconsideration;

  • submissions in support of the request; and

  • remedy or relief sought.
(c) Response to Request for Reconsideration

The Rules on Responses to Requests for Reconsideration are oddly structured, and I hope I have interpreted then correctly. I invite alternative views on their interpretation.

They starts out by stating that no respondent's Response is required unless the Tribunal so directs, adding that IF a Response is so required then it, and "complete written submissions in support of its position", must be filed (and only filed: ie. there is no service requirement) in the following form [Rule 26.4]:

Form 21: Response to Request for Reconsideration

The Rules then continue to add that:
  • "the Tribunal shall not grant a Request for Reconsideration without providing the parties an opportunity to make submissions" [Rule 26.6]; and

  • "the determination of the Request for Reconsideration shall be conducted by written submissions unless the Tribunal decides otherwise" [Rule 26.7].
The Rules are apparently making a distinction between submissions and a formal Form 21 Response. As best I can tell these provisions combine to grant the Tribunal the power to waive the need for a formal Form 21 Response by a respondent, but also give the parties (all of them) a right to "make (written) submissions" (other than in Form 21) on the reconsideration Request nonetheless if it so desires. This seems an odd result, why not just allow all respondents to make Responses (Form 21) in the normal course?

In any event, the absence of any requirement that a Response (or written submissions for that matter) - if any are made - be served on the other parties, is an additional reflection of the lack of natural justice content (ie. the unilateral nature) of the reconsideration process, as already discussed in ss.1 and 2(a,b) above. The Rule 26.6 right to make submissions on the Request for Reconsideration can only have meaning for the other parties if they are given a copy of the requesting party's "complete written submissions in support of its position".

(d) Criteria for Granting Requests for Reconsideration

Before granting a Request for Reconsideration the Tribunal must be satisfied that at least one the following was or is the case [Rule 26.5]:
  • Fresh Evidence

    "there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier";

  • Lack of Hearing Notice

    "the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing"; or

  • Legal Error or Conflict with Tribunal Procedure

    "the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance";

    "Conflict with established jurisprudence" amounts to that universal ground of appeal otherwise known as 'legal error'. That this Rule then goes on to treat "conflict ... with Tribunal procedure" in the same breath and in the same class as legal error reflects the self-importance with which the managing Tribunal views its micro-managing of Code procedures.

  • Other Factors

    "other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions."

    This is just the Tribunal reserving unto itself the ability to order a reconsideration on any other grounds that it wants to, just in case they are not already captured by those criteria already noted (above).
(e) Orders Available on Reconsideration

In s.1(a) above I review the orders that can typically result from reconsideration processes used in other administrative tribunals, and as well take pains to distinguish between the 'request' stage and the 're-hearing' stages of reconsiderations and how they can sometimes (almost unconsciously) merge.

The Tribunal Rules allow the following orders in the event that it decides to reconsider its own decision [Rule 26.8]:
  • make a decision on the substance of the Request without further submissions from the parties (what I call "direct substitution"), or

  • determine a procedure for rehearing all or part of the matter ("full or partial re-hearing").
These orders are entirely in line with those typically available to other administrative tribunals facing reconsideration requests as discussed in s.1(b) above. Note again that the first of them amounts to a dispensing with the conduct of a new (either full or partial) reconsideration hearing, and a simple direct substitution of the 'managing tribunal's' view for that of the 'presiding tribunal's decision.

In addition to being a violation of the common law principle of res judicata [see s.1(b)] (which any reconsideration grant is), the direct substitution of the managing tribunal's view for that of the presiding tribunal's is also a blatant violation of the equally venerable common law rule of 'they who hear shall decide'.

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