An acquaintance of mine recently accused me of being an “expert” on administrative law now that I have been regularly writing on the topic. His choice of words, not mine. Correct or not, I took it as a complement. Then, based upon his misguided belief, he put an interesting question to me, which provided with some inspiration for this article.
The question related to an unspecified administrative tribunal with no statutory appeal provision and no statutory reconsideration provision. Apparently, the tribunal discovered that it had made a demonstrable and embarrassing denial of natural justice, failing to invite submissions on a jurisdictional question, resulting in the dismissal of the matter before it. In this scenario, the tribunal knew that the applicant was unlikely to request judicial review.
The question: could the administrative tribunal apply for judicial review of its own decision, or apply for standing to do so, as it is the only viable way to correct a known error? The grounds would be that a failure to rehear the matter would bring the administration of justice and the reputation of the tribunal into disrepute.
I asked my acquaintance if this was a law school exam question. I certainly seemed like a law school exam question. I was assured that it was a real world problem.
I cannot think of a case involving an administrative tribunal initiating a judicial review proceeding so that it could revisit one of its own decisions. I also cannot think of a situation in which a court would allow it to do so. Usually, the question is whether an administrative agency has standing to participate in a judicial review of its own decision, commenced by some other party. In that regard, the courts have been historically restrictive, particularly following the decision in Northwestern Utilities Ltd. et al. v. Edmonton,  1 SCR 684, although the restrictiveness of that case has been tempered by Ontario (Energy Board) v. Ontario Power Generation Inc.,  3 SCR 147. The administrative agency’s ability to participate may also be set out in its governing legislation.
At most, the only judicial process to which a tribunal can avail itself is the stated case, in which an administrative agency may ask the court to resolve a point of law that is necessary to resolve in order for the agency to determine a matter that is before it. However, an administrative agency can only ask a court to address a stated case if the agency has statutory authority to do so. Moreover, as a stated case is only meant to resolve questions of law, it would not serve as a means for a tribunal to obtain any sort of order directing it to reconsider one of its own decisions.
Otherwise, the most likely process would involve a common law right of reconsideration, especially if the tribunal’s governing statute does not have any review, reconsideration, or appeal provisions. I directed my colleague to look at Chandler v. Alberta Association of Architects,  2 SCR 848. In that case, the majority noted that absent statutory authority, the general rule is that once an administrative tribunal has reached a final decision on a matter, the tribunal cannot revisit the decision because it has changed its mind, made an error within its jurisdiction, or because there has been a change of circumstances. Otherwise, the tribunal may only do so if there has been a slip in drawing up the decision or an error in expressing the manifest intention of the tribunal. This is founded upon the policy ground that favours finality of proceedings.
However, the court stated that the tribunal’s mandate may not have expired if it makes an error because it acted outside of its jurisdiction or statutory authority, failed to discharge its duty, or otherwise fulfill its purpose. For those of you who enjoy the Law Latin1, in such cases the tribunal would not be functus officio. In Chandler, the majority found that the tribunal in that case had conducted a valid hearing, but then issued a decision that was a nullity. The court stated that, traditionally, a tribunal that makes a determination which is a nullity is permitted to reconsider the matter afresh and render a valid decision.
In Fraser Health Authority v. Workers’ Compensation Appeal Tribunal, 2014 BCCA 499, the majority followed the principles in Chander, as well as Powell Estate v. Workers’ Compensation Board, 2003 BCCA 470 and confirmed that a tribunal’s common law right to reconsider an otherwise final decision was limited to circumstances in which it had acted outside its jurisdiction. The majority said that the authority to correct a jurisdictional error did not extend so far as to allow a tribunal to reconsider its own decision based upon its own determination that the decision was patently unreasonable. (Remember, British Columbia preserved that standard of review by statute. Take that, Dunsmuir.) The majority said that the “jurisdiction” referred to in Chandler relates to what Dunsmuir referred to as a matter of “true jurisdiction”. A decision that may be patently unreasonable is not on par with a decision that exceeds a tribunal’s jurisdiction. In a very brief analysis, the majority of the SCC in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority,  1 SCR 587, 2016 SCC 25 confirmed the BCCA decision on this point.
Returning to my colleague’s question, without further detail it seems that the scenario he described fell within the circumstances described in Chandler. If the tribunal acted in a manner that denied natural justice and resulted in a decision that was an error of true jurisdiction, the whole proceeding may have been vitiated, requiring the tribunal to start anew to cure the defect. As for the defect in my colleague’s opinion of my expertise, I see no reason to cure him of the illusion.
1 I will caution those of you who do. My wife, who studied Latin for many years, finds Law Latin comically amusing, particularly the way lawyers pronounce the terms.