DATE:
February 8, 2022
PARTIES:
Ms. M.M. (the “Student”) v. School of Graduate Studies
HEARING DATE:
December 14, 2021, via Zoom
Chair:
Professor Andrew Green
Appearances:
For the Student Appellant:
Ms. Julia Wilkes, Adair Goldblatt Bieber LLP
Ms. Marlie Earle, Adair Goldblatt Bieber LLP
The Student
For the School of graduate studies:
Mr. Robert Centa, Paliare Roland Rosenberg Rothstein LLP
The Student sought a reconsideration of a decision of a prior panel of the Academic Appeals Committee (“AAC”) which dismissed her appeal. The Student argued that materials she received from a Freedom of Information and Protection of Privacy Act (“FIPPA”) request provided evidence that the grades she received in a course were unreliable and that certain members of the School of Public Health had deliberately withheld documents and/or misled the Graduate Academic Appeals Board (“GAAB”) and the prior panel of the AAC.
Issues pertaining to jurisdiction are a question of law that must be determined by the Chair alone. The Chair of this Panel of the Academic Appeal Committee (“Panel”) needed to determine whether the AAC has jurisdiction to reconsider its prior decisions and if so, in what circumstances, and if the AAC does have jurisdiction in certain circumstances, then should the Committee do so in this case. The Chair noted that whether the AAC can reconsider its prior decisions rests on the application of the legal principle of functus officio. With certain exceptions, an administrative tribunal, such as the AAC, that makes a final decision is functus officio, meaning that its work is done and it cannot change or reconsider its decision. The Chair further noted that this principle rests on the need for finality in decision making and such finality provides certainty for the parties, allows for reliance on the decision, limits the burden on the administrative system, and allows a stable basis for judicial review or appeal. The Chair of the Committee referenced the Supreme Court of Canada’s decision in Chandler v. Alberta Association of Architects, [1989] 2 SCR 848 (“Chandler”) in his analysis of the application of functus officio to administrative decision-makers. The Chair noted that based on the discussion found in Chandler the principle of functus officio applies to administrative tribunals such as the AAC based on the need for finality of proceedings but must be applied flexibly. There are two clear exceptions to the functus officio principle which are outlined in Paper Machinery Ltd. V. J. O. Ross Engineering Corp. [1934] SCR 186 and cited by the Supreme Court in Chandler; (1) the tribunal has made a “slip” in its decision such as a minor error in wording; and (2) the tribunal made an error in expressing its “manifest intention.” The Chair noted that beyond these two exceptions, functus officio generally applies unless there is an explicit or implicit statutory power of reconsideration. The Chair stated that the AAC does not have an explicit or implicit power to reconsider its prior decisions because neither the University of Toronto’s Governing Council bylaws nor the AAC’s Terms of Reference provide the AAC with an explicit power of reconsideration. Furthermore, the Terms of Reference do not contain any procedures relating to reconsideration and emphasize that the AAC is the final decision-maker on appeals that have already been through appeal processes in different divisions.
The Student argued that in the context of court proceedings, courts have made an exception for fraud on the tribunal and such an exception to functus officio is appropriate also in the administrative law context. The Chair noted that Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351 and Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578 (Div Ct) do not find such a fraud exception in the context of an administrative tribunal, and the Federal Court of Appeal, in Canadian Association of Film Distributors and Exporters v. Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) Inc., 2014 FCA 235, stated that there should be a reluctance to find new exceptions to the functus officio rules.
The Student also pointed to a broader exception to the application of functus officio which, she argued, relates to a denial of “natural justice” or perhaps, more generally, unfairness. The Chair noted that the Supreme Court in Chandler stated that a tribunal must “start afresh” where “the error which renders the decision a nullity is one that taints the whole proceeding.” In support of this, the Supreme Court cited cases which “involve a denial of natural justice which vitiated the whole proceeding.” Furthermore, the Student provided cases that outline tribunals obtaining the power of reconsideration where there was a breach of procedural fairness. The Chair remarked that the case law seems unclear on this point. In two recent decisions of the Ontario Court of Appeal (Jacobs Catalytic Ltd. v. I.B.E.W., Local 353, 2009 ONCA 749 and Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252), the Court found that there was no power of reconsideration even though the contexts encompassed potential breaches of procedural fairness. The Chair noted that the AAC allows for a final resolution of appeals that gives parties certainty and provides a limit on the resources for any single appeal. Parties can seek judicial review of these decisions on both procedural and substantive grounds. The Chair found that the AAC has no express statutory power to reconsider its prior decisions and has very limited common law power to reconsider decisions where there is a minor error that amounts to a “slip” or where the tribunal has made an error in expressing its intent.
In deciding whether the Panel should reconsider the AAC’s original decision in this matter, the Chair noted that the Panel only needs to consider whether it has the power to reconsider the decision in this case because there was fraud or a breach of natural justice. The Panel found that (1) there was no evidence to support the allegations of fraud; (2) there was no evidence of any intent to mislead either the GAAB or the prior panel of the AAC; and (3) the proposed exceptions for the breaches of natural justice did not apply in this case. The Panel noted that the purpose of fairness is to ensure “administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at para. 22). The Panel noted that none of the materials provided under the FIPPA request change any of the basic facts nor do they demonstrate any insufficiencies in disclosure by the time of the original AAC hearing to warrant reconsideration. Furthermore, the FIPPA materials only support the conclusion that the Student received the necessary materials to make her case. The Panel noted that there may be cases where a breach of fairness is so egregious that it gives rise to a power of reconsideration, however, this is not such a case. Furthermore, fairness can clearly be raised on a judicial review application.
Given that the Panel found that this case does not fit within the very limited circumstances permitting reconsideration, it is unnecessary to deal with the other two issues (delay and the merits of this appeal). Request for reconsideration dismissed.
The Panel recommended that (1) the Division ensure steps are taken to provide students with timely and accurate information about their grades when they are appealed; and (2) the governance process be engaged to determine whether the Terms of Reference should be clarified regarding reconsiderations.