Reconsidering reconsideratons

What are the limits on decision-making when a court sends the decision back?

“We need to learn how to live with a new ‘species’ of intelligence on our planet”

Thomas Malone, speaking on AI and Human Interaction (May 28, 2025)

I am starting to prepare for a webinar on “Artificial Intelligence and Decision-Making” that I will be delivering in November. In preparation, I attended a webinar on human-AI interaction this week. Thomas Malone, a management professor at MIT likened AI to other “species” that we interact with - such as dogs. It is indeed a brave new world.

Limits on reconsideration of final decisions

The ability of a tribunal to reconsider its final decisions is limited to:

1. correcting minor errors

2. addressing fundamental changes in the landscape after the decision is issued

3. If a court orders the decision to be reconsidered, after a judicial review, in accordance with the court’s directions.

In the recent Federal Court of Appeal decision in Copyright Collective of Canada v. Bell Canada, 2025 FCA 92, the issue of the scope of a reconsideration after judicial review was canvassed by the court.

In the first judicial review application, the court ordered the Copyright Board to reconsider its decision on two points:

[82] …I appreciate that the two errors identified by this Court in assessing the adjustment to the proxy price, namely the use of an incomplete and superseded version of the payment data as well as the use of the wrong profit margin figure, are quite straightforward and do not involve a reconsideration of the overall approach implemented by the Board. At the same time, the amounts at stake are considerable, and as much as the Collectives filed with this Court (as an appendix to their factum) a calculation of the effect of correcting each error, we do not have the views of the BDUs on that issue.

…

[84] I understand that the retransmission royalty rates for the period 2014–2018 were only released in December 2018, and that the Tariff was only approved and published on August 3, 2019. We are now, in effect, reconsidering royalty rates that should have applied between three and seven years ago. This long delay is obviously of concern, and is the source of uncertainty for all the players involved. I trust that the Board will be able to amend its Tariff in conformity with these reasons in an expeditious way. In the meantime, the parties will be able to govern themselves and make whatever business decisions they may have to make in light of the adjustments that will be required as a result of this decision.

The court’s direction to the Board was short:

The application for judicial review is granted in part. The Board’s decision is set aside only to the extent of its use of the wrong pricing data in its proxy price calculation and of the wrong profit margin. The matter is therefore remitted to the Board for redetermination of the rates in accordance with these reasons. Each party shall bear its own costs.

As the court in the most recent judicial review stated, the first reviewing court “expected that the results of the redetermination would be quick and predictable enough” to permit the parties to make business decisions. However, the reconsideration was anything but expeditious - it took almost 2½ years.

In its reconsideration decision, the Board went beyond the two narrow issues identified by the court in the initial judicial review: “A conclusion that the JR Decision provided for redetermination to extend beyond those two errors is unreasonable, and smacks of goal-oriented reasoning” (para. 32).

The court identified the appropriate analysis: (1) what did the court direct on redetermination, and (2) did the Board follow those directions: ABB Inc. v. Hyundai Heavy Industries Co., Ltd., 2015 FCA 157 at para. 29.

The Board argued that it was duty-bound to correct the additional errors that it found. The court concluded that this was not a proper justification for revisiting its original decision.

The court allowed the judicial review and rather than send it back again to the Copyright Board, it set the tariff rates based on the correct numbers.

Lessons for tribunals

• Reconsiderations after judicial reviews should be conducted expeditiously and given priority over most other cases before the tribunal

• The Order of the court is the most important direction on the scope of the reconsideration - the tribunal is limited to correcting the identified errors

• The reasons of the court can inform the interpretation of the Order - but it is the Order itself that defines the scope of the reconsideration.

Engineering laws applicable to adjudication

I came across a list of software engineering “laws”, some that I was aware of, and others not. Some seemed relevant to administrative law and adjudication.

1. Parkinson’s law

Work expands to fill the available time.

2. Hofstadter’s Law

It always takes longer than you expect, even when you take into account Hofstadter’s Law.

3. Goodhart’s law

When a measure becomes a target, it ceases to be a good measure.

4. Murphy’s Law

Anything that can go wrong will go wrong.

Links of interest

The Attorney General and the Duty to Encourage Respect for the Administration of Justice

Attorneys General, like all lawyers, have a positive duty to encourage respect for the administration of justice. This includes a duty to defend judges against unfair criticism. The reality for most lawyers is that this is mostly a negative duty, i.e. a duty not to discourage respect for the administration of justice than to actively