‘Tis the season for brumation…
Reconsiderations, functus and inconsistent decisions - case roundup
brumation (n.) wintertime sluggishness, a semi-dormant decrease in activity during the winter months [1965; < Lat., bruma, 'winter']
I had a busy week of radio shows, including a lengthy conversation with Charles Gordon, Canadian humourist and newspaperman. I’ll be putting together shows of seasonal jazz music over the next week and preparing for shows in early January, looking back at 2024.
I’m now on Bluesky - @adjudicatethis.bsky.social. It’s certainly more pleasant than “the other place”, but time will tell, plus my social media skills are rusty. Why don’t you try it out?
Cases of note
Conflicting decisions not a concern where more than one reasonable outcome possible
In London Civic Employees Union Local 107 v. Corporation of the City of London et al, 2024 ONSC 6625, the court dismissed a judicial review of a labour arbitrator’s decision and made the following points about consistency in decisions:
[21] …Vavilov reminds us that arbitrators and other administrative decision-makers are not bound by internal precedent in the same manner as courts. Some conflicts between administrative decisions are the “price to pay” for independence of decision-making:
As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision-making freedom and independence” given to administrative decision-makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law; p. 800 [of Domtar Inc. v. Quebec (commission d’appel en matière de lésions professoinnelles), 1993 CanLII 106 (SCC), [1993] 2 S.C.R. 756].
[22] Reviewing courts should still be concerned with the general consistency of administrative decisions. If an arbitrator departs from longstanding practice or established internal decisions, the departure must be justified: Vavilov, at para. 131 In this case, there was only one other recent decision, not an established precedent. In any event, Arbitrator Anderson explained his departure from Arbitrator Bendel’s decision. …
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[24] The departure from Arbitrator Bendel’s decision was clearly explained. Arbitrator Anderson reached his decision on an argument not put to Arbitrator Bendel. The nature of reasonableness review is that, in most cases, there can be more than one reasonable outcome. Arbitrator Anderson’s conclusion was within a range of possible, acceptable outcomes that was justified in respect of the facts and the law: Vavilov at para. 86. I do not find this case to be of the type referenced in para. 124 of Vavilov where there is only one reasonable interpretation of the collective agreement. As a result, it is not appropriate for the court to intervene.
No requirement to request reconsideration before applying for judicial review
In Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board, 2024 ONSC 6839, the school board argued that the judicial review application was premature because a reconsideration was not first requested. The court disagreed:
[64] While this Court clearly has the discretion to dismiss an application for judicial review because the applicant has not sought reconsideration, the Supreme Court of Canada has held that reconsideration is not an absolute prerequisite to judicial review Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 57.
[65] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, [2019] O.L.R.B. Rep. 691, the Divisional Court refused to dismiss an application for judicial review as premature because the applicant had not sought reconsideration. In doing so the Court noted that reconsideration is a discretionary rather than a mandatory part of the Board’s processes and that historically the Board has only granted reconsideration requests in very limited circumstances. The Divisional Court found at para. 41:
There may be cases in which it is appropriate to require reconsideration before an application for judicial review is brought; for example, where there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue. Similarly, reconsideration may be an adequate alternative remedy where the Board made an error in a step in the administrative decision-making process. However, given the limited scope for review, there is no basis for finding that parties before the Board should generally request a review by the Board before seeking judicial review. [citations omitted.]
[66] As put by the ETBA in its reply factum, its “application alleges that the Board failed to give proper effect to the province-wide bargaining regime under the Act. This is not a ‘policy issue’ as defined in the case law.” I agree. Further, there are no conflicting decisions involving an issue that the Board ought to have a chance to reconcile. Finally, ETBA is not alleging that the Board made a procedural error in its process.
[67] In The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153 at para. 22, the Divisional Court found that the Board is likely to reject a request for reconsideration that it regards “as an attempt to reargue the case.” In its reply factum, the ETBA acknowledges that it “is essentially making the same representations to this Court that it made before the Board but is contending that the Board’s conclusions about those representations were unreasonable.”
[68] I find that in this case reconsideration would not be an adequate alternative remedy and, therefore, the application should not be dismissed as premature.
Tribunal “functus” and without jurisdiction to re-open final decision
The Ontario Physicians and Surgeons Discipline Tribunal revoked a doctor’s certificate of registration in 2021, due to misconduct (upheld on judicial review). The doctor sought to reopen his hearing to admit fresh evidence, over two years later, after he was acquitted following a criminal trial in relation to the same conduct. The proposed fresh evidence involved alleged inconsistencies between the patient’s testimony at the criminal trial and before the Tribunal.
The Chair of the Tribunal determined that Rule 13.3.1 of the Tribunal’s Rules of Procedure, which sets out when the Tribunal may vary, suspend, or cancel a Tribunal order “that continues in effect”, did not provide a statutory exception to the doctrine of functus officio. The court in Tan v. Ontario Physicians and Surgeons Discipline Tribunal, 2024 ONSC 6609 agreed:
[26] In relation to an administrative tribunal, the doctrine of functus officio provides that, as a general rule, once a final decision by the tribunal is made, the tribunal has no power to revisit its decision because the tribunal has changed its mind, made an error within jurisdiction, or there has been a change of circumstances. The general rule is subject to limited exceptions including, where there has been a slip in drawing up the decision, to correct an error in expressing the manifest intention of the tribunal, or if there is specific statutory authority to do so: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861.
[27] Where a final decision of a court or tribunal is susceptible of appeal, as is the case here under s. 70(1) of the Code, functus officio promotes finality, which is a “practical necessity for the system of justice as a whole”, and effective appellate review: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at para. 34.
[28] Section 21.2(1) of the SPPA authorizes a tribunal – if its rules permit – to “review all or part of its own decision or order” and, if so, to “confirm, vary, suspend or cancel the decision or order.” Under s. 21.2(2) of the SPPA, any review must take place within a reasonable time after the decision or order is made.
[29] The Chair was alert to important differences in the wording between s. 21.2(1) of the SPPA and Rule 13.3.1. Unlike s. 21.2(1), Rule 13.3.1 does not use the word “review.” While s. 21.2(1) refers to reviewing a decision or an order, Rule 13.3.1 refers only to the ability to vary, suspend, or cancel an order. Under s. 21.2(1), the tribunal may confirm the decision or order; Rule 13.3.1 does not use the word “confirm.” Having regard to these differences, it was reasonable for the Chair to conclude that Rule 13.3.1 is not an implementation of the review power contemplated by s. 21.2(1) of the SPPA.
[30] Rule 13.3.1 requires that only an order that “continues in effect” can be varied, suspended, or cancelled. The Chair rejected Dr. Tan’s argument that a revocation continues in effect because the Code prevents him from applying for reinstatement for five years. As the Chair explained, Dr. Tan’s interpretation would result in a general review power and render the words “continues in effect” meaningless because “[n]early every order has a lasting effect, at least those leading to an entry on the public register identifying the misconduct.”
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[33] The Chair identified the principle of finality as “the most important context here” and cited the Supreme Court of Canada’s explanation for the principle: “If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court. The appeal record would be written on ‘shifting sand’, ultimately inhibiting effective review”: Canadian Broadcasting, at para. 34. The principle of finality is recognized in s. 21.2(2) of the SPPA, which requires that any review must take place within a “reasonable time” after the decision or order is made. The Chair concluded, reasonably, that a provision allowing review of a decision with no time limits on the request – the position advocated for by Dr. Tan – would be contrary to s. 21.2(2).
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[35] In detailed, clear, and internally coherent reasons, the Chair identified and applied the correct interpretative principles. His interpretation of Rule 13.3.1 and his dismissal of Dr. Tan’s motion based on no jurisdiction were reasonable.
Links of interest
Courts warn of 'critical' budget pressures as immigration cases delayed
"At a minimum, cases will take longer to be heard, and modernization efforts will be slowed down or stopped, to the detriment of litigants and access to justice," the Courts Administration Service (CAS) said in a statement to CBC News. The arm's-length federal body serves the Federal Court and Canada's three other federal courts, the Federal Court of Appeal, the Court Martial Appeal Court of Canada and the Tax Court of Canada.
Guiding the use of the notwithstanding clause
The CBA calls for safeguards to address the growing reliance on Section 33 to shield legislation from constitutional scrutiny in cases where its use may undermine fundamental rights and freedoms.
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The CBA previously adopted a resolution in 2020 recommending the following guidelines for the use of the notwithstanding clause:
It must not be used pre-emptively, i.e., without prior consideration by the courts.
It must not be invoked without meaningful and transparent public consultation.
A two-thirds majority vote in the legislature or Parliament should be required to invoke it.
In its recent submission to the federal government, the CBA recommends a fourth: that any invocation of Section 33 should include a preambular statement explaining why it is necessary. Such a requirement would compel legislatures to give voters a clear and transparent justification for the use of the notwithstanding clause.
Courts can't save us from the notwithstanding clause; politics can
But in general, efforts to have the courts invent new limits on the notwithstanding clause or to somehow invalidate legislation despite the clear effects of s. 33 should be seen as arguments in favour of dramatic and radical judicial overreach.
The improper uses of the notwithstanding clause need to be fought in the political arena. Governments need to be punished electorally for violating rights. I recognize in some cases this political battle will be extremely tough, especially when the rights of unpopular minorities are at stake. But if our political culture is so eroded that we can’t muster that battle, then we are too far gone for creative judicial reasoning to save us anyway.
Coffee drinkers face price rises as costs on global markets hit record high
Your morning caffeine hit could become even pricier in the new year after the cost of coffee beans on international commodity markets soared to a record high.
Can AI Mediation Help Bridge Political Divides?
Artificial intelligence (AI) may offer a means of helping hostile citizens find common ground, according to new research published in the journal Science. In a series of experiments with over 5,000 UK participants, a team from the British-American AI research lab Google DeepMind found that an AI mediation program was more successful than human mediators at helping groups reach consensus on hot-button topics.
Med-Arb Revisited - use of an opt-out feature
Mediation offers strategic flexibility for disputes with complex dynamics but may not reach a resolution of a dispute. The opt-out feature allows the parties to continue with the original mediator as arbitrator or retain a different arbitrator to complete the process. This option provides an opportunity for reevaluating the neutral’s role, ensuring both parties are comfortable proceeding. It also maintains a sense of control and confidence in the transparency of the process.