Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848
IN THE MATTER of an application for an
order for prohibition;
AND IN THE MATTER of the Architects Act,
being chapter A‑44.1 of the Revised Statutes
of Alberta, 1980, as amended;
AND IN THE MATTER of the Practice Review Board
of the Alberta Association of Architects;
BETWEEN
Sheldon Harvey Chandler, S. H. Chandler
Architect Ltd., Gordon Gerald Kennedy,
G. G. Kennedy Architect Ltd., Brian
William Kilpatrick, Brian W. Kilpatrick
Architect Ltd., Peter Juergen Dandyk and
Peter J. Dandyk Architect Ltd. Appellants
v.
Alberta Association of Architects,
the Practice Review Board of the Alberta
Association of Architects, Trevor H. Edwards,
James P. M. Waugh and Mary K. Green Respondents
indexed as: chandler v. alberta association of architects
File No.: 19722.
1989: January 30; 1989: October 12.
Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé and Sopinka JJ.
on appeal from the court of appeal for alberta
Administrative law -- Boards and tribunals -- Jurisdiction ‑‑ Continuation of original proceedings -- Functus officio -- Inquiry into the practices of a firm of architects -- Board conducting a valid hearing but issuing ultra vires findings and orders -- Board's findings and orders quashed -- Board failing to consider whether it should make recommendations as required by legislation -- Whether Board empowered to continue original proceedings ‑‑ Architects Act, R.S.A. 1980, c. A‑44.1, s. 39(3) -- Alberta Regulation, 175/83, s. 11(1).
Pursuant to s. 39 of the Architects Act, the Practice Review Board of the Alberta Association of Architects conducted a hearing to review the practices of a firm of architects which went bankrupt and issued a report. Although the hearing was intended to be a practice review, the Board, in its report, made 21 findings of unprofessional conduct against the firm and six of the architects, levied fines, imposed suspensions and ordered them to pay the costs of the hearing. The Court of Queen's Bench allowed appellants' application for certiorari and quashed the Board's findings and orders. The Court of Appeal upheld the decision holding that the Board lacked jurisdiction to make findings or orders relating to disciplinary matters or costs. Under s. 39(3) of the Act, the Board is simply responsible for reporting to the Council of the Alberta Association of Architects and for making appropriate recommendations.
The Board notified the appellants that it intended to continue the original hearing to consider whether a further report should be prepared for consideration by the Council and whether the matter should be referred to the Complaint Review Committee. The Court of Queen's Bench allowed appellants' application to prohibit the Board from proceeding further in the matter. The court found that the Board had completed and fulfilled its function and that it was therefore functus officio. The Court of Appeal vacated the order of prohibition. It held that s. 39(3) of the Act and s. 11(1) of the Regulations require the Board to consider whether or not to make recommendations to the Council or the Complaint Review Committee. The Board did not do so and therefore did not exhaust its jurisdiction.
Held (La Forest and L'Heureux‑Dubé JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Wilson and Sopinka JJ.: The Board was not functus officio. As a general rule, once an administrative tribunal has reached a final decision in respect of the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip in drawing up the decision or there has been an error in expressing the manifest intention of the tribunal. To this extent, the principle of functus officio applies to an administrative tribunal. It is based, however, on the policy ground which favours finality of proceedings rather than on the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. Its application in respect to administrative tribunals which are subject to appeal only on a point of law must thus be more flexible and less formalistic.
Here, the Board failed to dispose of the matter before it in a manner permitted by the Act. The Board conducted a hearing into the appellants' practices but issued findings and orders that were ultra vires. The Board erroneously thought it had the power of the Complaint Review Committee and proceeded accordingly. It did not consider making recommendations as required by the Regulations and s. 39(3) of the Act. While the Board intended to make a final disposition of the matter before it, that disposition was a nullity and amounted in law to no disposition at all. In these circumstances, the Board, which conducted a valid hearing until it came to dispose of the matter, should be entitled to continue the original proceedings to consider disposition of the matter on a proper basis. On the continuation of the original proceedings, however, either party should be allowed to supplement the evidence and make further representations which are pertinent to disposition of the matter in accordance with the Act and Regulations.
Per La Forest and L'Heureux‑Dubé JJ. (dissenting): When an administrative tribunal has reached its decision, it cannot afterwards, in the absence of statutory authority, alter its award except to correct clerical mistakes or errors arising from an accidental slip or omission. In this case, the Board was functus officio when it handed down its decision. Its function was completed when it rendered its final report. The fact that the original decision was wrong or made without jurisdiction is irrelevant to the issue of functus officio.
If the Board had discretion to consider making recommendations, and chose not to do so, it should be the end of the matter. There is no authority in the Act that permits the Board to change its mind on its own initiative. Furthermore, once a board acts outside its jurisdiction it should not be allowed to rectify the infirmities of its disposition according to its own predilections. Standards of consistency and finality must be preserved for the effective development of the complex administrative tribunal system in Canada. Either a Board is compelled to act in a prescribed manner, or it is prohibited from so acting. Allowing the Board to reopen the hearing, without an explicit provision in the enabling statute, would create considerable confusion in the law relating to powers of administrative tribunals to rehear or redecide matters. Finally, as a general rule, a tribunal should not be allowed to reserve the exercise of its remaining powers for a later date. The Board could not attempt to retain jurisdiction to make recommendations once it had made a final order, as the parties would never have the security of knowing that the decision rendered has finally determined their respective rights in the matter.
If the Board had a duty to consider making recommendations which it failed to fulfill, it could, depending on the circumstances of the case, be directed to review the entire matter afresh, and could be required to conduct a new hearing. Any re‑examination, however, should not be construed as a "continuation of the Board's original proceedings". It would set a dangerous precedent in expanding the powers of administrative tribunals beyond the wording or intent of the enabling statute. It would also erode the protection of fairness and natural justice which is expected of administrative tribunals. In the particular circumstances of this case, a rehearing would not be appropriate.
The Court of Appeal erred in applying the principles of mandamus to the present situation.
Cases Cited
By Sopinka J.
Referred to: In re St. Nazaire Co. (1879), 12 Ch. D. 88; Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186; Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214; Re Trizec Equities Ltd. and Area Assessor Burnaby‑New Westminster (1983), 147 D.L.R. (3d) 637; Ridge v. Baldwin, [1964] A.C. 40; Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232; Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577.
By L'Heureux‑Dubé J. (dissenting)
Re V.G.M. Holdings, Ltd., [1941] 3 All E.R. 417; Re Nelsons Laundries Ltd. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 292 (1964), 44 D.L.R. (2d) 463; Lewis v. Grand Trunk Pacific Railway Co. (1913), 13 D.L.R. 152; M. Hodge and Sons Ltd. v. Monaghan (1983), 43 Nfld. & P.E.I.R. 162; Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214; Lodger's International Ltd. v. O'Brien (1983), 45 N.B.R. (2d) 342; Slaight Communications Inc. v. Davidson, [1985] 1 F.C. 253 (C.A.), aff'd [1989] 1 S.C.R. 1038; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; Cité de Jonquière v. Munger, [1964] S.C.R. 45; Re Trizec Equities Ltd. and Area Assessor Burnaby‑New Westminster (1983), 147 D.L.R. (3d) 637; Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232; Canadian Industries Ltd. v. Development Appeal Board of Edmonton (1969), 71 W.W.R. 635; Karavos v. Toronto, [1948] 3 D.L.R. 294.
Statutes and Regulations Cited
Alberta Regulation, 175/83, s. 11.
Architects Act, R.S.A. 1980, c. A‑44.1, ss. 9(1)(j.1) [ad. 1981, c. 5, s. 6], 39 [am. 1981, c. 5, s. 16].
Labour Relations Code, S.A. 1988, c. L‑1.2, s. 11(4).
National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N‑20 [formerly National Transportation Act], s. 66.
Ontario Municipal Board Act, R.S.O. 1980, c. 347, s. 42.
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "functus officio".
Jowitt's Dictionary of English Law, 2nd ed. By John Burke. London: Sweet & Maxwell, 1977, "functus officio".
Pépin, Gilles et Yves Ouellette. Principes de contentieux administratif, 2e éd. Cowansville, Qué.: Éditions Yvon Blais Inc., 1982.
APPEAL from a judgment of the Alberta Court of Appeal (1985), 67 A.R. 255, allowing respondents' appeal from a decision of the Court of Queen's Bench[1], granting appellants' application for an order for prohibition against the Practice Review Board. Appeal dismissed, La Forest and L'Heureux‑Dubé JJ. dissenting.
W. E. Code, Q.C., and B. G. Kapusianyk, for the appellants.
No one appearing for the respondents.
//Sopinka J.//
The judgment of Dickson C.J. and Wilson and Sopinka JJ. was delivered by
SOPINKA J. -- The issue in this appeal is whether the Practice Review Board of the Alberta Association of Architects was functus officio after delivering a report on the practices leading to the bankruptcy of the Chandler Kennedy Architectural Group. The Alberta Court of Appeal allowed an appeal from the decision of the Alberta Court of Queen's Bench granting the appellants' application for an order prohibiting the Practice Review Board from proceeding on the grounds that the Board no longer had jurisdiction to deal with the matter and was functus officio.
Facts
As a result of the Chandler Kennedy Architectural Group filing for voluntary insolvency in June 1984, the Practice Review Board of the Alberta Association of Architects decided on its own initiative pursuant to s. 39(1)(b) of the Architects Act, R.S.A. 1980, c. A-44.1, to undertake a review of the practice of the Group and a number of the individual members of the Group. Hearings were commenced on August 14, 1984 and continued for a total of eighteen days. Final submissions were heard on December 17, 1984 and the report of the Board was issued on March 6, 1985.
The 71-page report made 21 specific findings of unprofessional conduct against the firm and several of the partners. Fines totalling $127,500 were imposed upon six members of the firm. The same six partners were also issued suspensions from practicing architecture for periods from six months to two years. As well, the appellants were required to pay the costs of the hearing, approximating $200,000.
Proceedings in the Courts Below
The appellants filed notice of intention to appeal the decision of the Board to the Council of the Alberta Association of Architects pursuant to s. 55 of the Architects Act. However, prior to the commencement of the appeal, the appellants brought an application before the Alberta Court of Queen's Bench for an order in the nature of certiorari to quash the findings and order of the Practice Review Board. Kryczka J. granted the order requested and held that the failure to inform the appellants that they were facing any charges or allegations of unprofessional conduct offended the principles of natural justice. Kryczka J. held that the comments of the Chairman of the Board clearly indicated that the hearings were intended to be a practice review rather than an inquiry into allegations of unprofessional conduct.
This decision was appealed by the Alberta Association of Architects to the Alberta Court of Appeal. In the Court of Appeal (1985), 39 Alta. L.R. (2d) 320, Prowse J.A. speaking for the court, upheld the decision of Kryczka J. but on different grounds. Prowse J.A. held that the Practice Review Board lacked jurisdiction to make findings or orders relating to disciplinary matters or costs. Disciplinary powers were said to be reserved for another body within the Alberta Association of Architects, the Complaint Review Committee. Under s. 39(3) of the Architects Act the Board is simply responsible for reporting to the Council and making whatever recommendations it feels are appropriate. Therefore, the Court of Appeal dismissed the appeal on the grounds that the Architects Act did not give to the Board the powers it purported to exercise.
A month after the decision of the Court of Appeal, the Practice Review Board gave notice to the appellants that it intended to continue the original hearing in order that consideration could be given to preparing a further report to the Council of the Alberta Association of Architects and consideration could also be given to referring the matter to the Complaint Review Committee.
The appellants then brought an application before the Court of Queen's Bench to prohibit the Board from proceeding further with the continuation of the matter. Brennan J. held that the Board had completed and fulfilled the function for which it was constituted and it was therefore functus officio and lacked jurisdiction to continue its hearing. This decision was also appealed to the Alberta Court of Appeal.
The Court of Appeal (1985), 67 A.R. 255 allowed the appeal and vacated the order of prohibition. Kerans J.A. for the court held that s. 39(3) of the Architects Act and Regulation 175/83, s. 11(1) impose on the Board the duty to consider whether or not to make a recommendation. Kerans J.A. held that the Board did not consider whether to make a recommendation that the matter be referred to the Complaint Review Committee and therefore it did not exhaust its jurisdiction. Functus officio was held not to apply here as there was a failure to consider matters which were part of the Board's statutory duty. It is from this decision that the present appeal arises.
Statutory Powers of the Board
In order to determine whether the Board was empowered to continue its proceedings against the appellants it is necessary to examine the statutory framework within which it operates. The Act does not purport to confer on the Board the power to rescind, vary, amend or reconsider a final decision that it has made. Such a provision is not uncommon in the enabling statutes of many tribunals. See Labour Relations Code, S.A. 1988, c. L-1.2, s. 11(4); Ontario Municipal Board Act, R.S.O. 1980, c. 347, s. 42; and National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20, s. 66 (formerly the National Transportation Act). It is therefore necessary to consider (a) whether it had made a final decision, and (b) whether it was, therefore, functus officio.
The Board on its own initiative launched an inquiry into the practices of the appellants pursuant to s. 39 of the Act which provides:
39(1) The Board
(a) shall, on its own initiative or at the request of the Council, inquire into and report to and advise the Council in respect of
(i) the assessment of existing and the development of new educational standards and experience requirements that are conditions precedent to obtaining and continuing registration under this Act,
(ii) the evaluation of desirable standards of competence of authorized entities generally,
(iii) any other matter that the Council from time to time considers necessary or appropriate in connection with the exercise of its powers and the performance of its duties in relation to competence in the practice of architecture under this Act and the regulations, and
(iv) the practice of architecture by authorized entities generally,
and
(b) may conduct a review of the practice of an authorized entity in accordance with this Act and the regulations.
(2) A person requested to appear at an inquiry under this section by the Board is entitled to be represented by counsel.
(3) The Board shall after each inquiry under this section make a written report to the Council on the inquiry and may make any recommendations to the Council that the Board considers appropriate in connection with the matter inquired into, with reasons for the recommendations.
(4) If it is in the public interest to do so, the Council may direct that the whole or any portion of any inquiry by the Board under this section shall be held in private.
It is apparent that s. 39 does not deal with discipline but rather with practices in the profession with a view to their improvement. If, however, in the course of the inquiry into practices it appears to the Board that a matter may require investigation by the Complaint Review Committee, provision is made for referral of that matter to that Committee. Section 9(1)(j.1) of the Act empowers the Council to make regulations:
(j.1) respecting the powers, duties and functions of the Practice Review Board including, but not limited to, the referral of matters by that Board to the Council or the Complaint Review Committee and appeals from decisions of that Board;
Section 11 of Regulation 175/83 passed pursuant to s. 9(1)(j.1) provides as follows:
11(1) The Board may shall [sic] make one or more of the following directions or recommendations:
(a) make one or more recommendations to the authorized entity or licensed interior designer, the subject of a practice review, respecting desired improvements in the practice reviewed;
(b) direct that a reviewer conduct a follow-up practice review to determine whether or not the Board's recommendations have been adopted and whether they have resulted in the desired improvements being made in the practice of the entity concerned;
(c) if it considers any one or more of the following matters to be of a sufficiently serious nature to require investigation by the Complaint Review Committee, direct that the matter be referred to the Complaint Review Committee for investigation:
(i) the unco-operative manner of an authorized entity or licensed interior designer in the course of a practice review or a follow up review;
(ii) a failure to comply with the Act, Professional Practice Regulation, Code of Ethics, Interior Design Regulation or General By-laws;
(iii) a failure to adopt and implement the recommendations respecting desired improvements in the practice of the entity concerned;
(iv) any apparent fraud, negligence or misrepresentation, or any disregard of the generally accepted standards of the practice of architecture or practice of licensed interior designers;
(d) if the Board determines in the course of its practice review that the conduct of an authorized entity or licensed interior designer constitutes
(i) unskilled practice of architecture or unprofessional conduct or both, or
(ii) unskilled practice of interior design or unprofessional conduct, or both
the Board shall deal with the matter in accordance with sections 50 to 53 of the Act;
(e) indicate that it has no recommendations to make or that the practice reviewed is satisfactory;
(f) comment on a practice maintained at a high standard and with the consent of the authorized entity or licensed interior designer concerned, publicize the high standard and the persons concerned;
(g) take recommendations to the Council with a view to the establishment of new standards related to specific or general areas of the practice of architecture.
(2) The Board shall not impose any sanction under subsection (1)(d) unless the authorized entity or professional interior designer concerned
(a) has made representations to the Board, or
(b) after a notice under section 42 of the Act has been given, fails to attend the hearing or does not make representations.
The Board's inquiry proceeded as an inquiry into practices in accordance with the Act. The following statements made by the Chairman during the course of the inquiry aptly describe the nature of the inquiry:
The first thing that I would like to make very clear and I believe that you alluded to this in the beginning, that this is not a complaint review, this is a practice review, and as a result we are not dealing with a specific case of wrongdoing which I think you are alluding to and you are obviously experienced in the court. We are dealing with a review of the practice of the various authorized entities and that means a total review. So, as a result, the entire course of this Hearing has been to review the total practice. It has not been a process of reviewing specific points. The Board has been concerned to develop a full and as broad an understanding of the practice of the various entities as is humanly possible under the circumstances.
As a result of the review of those authorized entities, it is our responsibility and our duty to make recommendations and to make findings and we of course are going to be doing that following this.
...
Following each and every individual, we have provided an opportunity for questioning. The Board will have to take into consideration all of the evidence that has been put before it and has been spending a great deal of time in making certain it is listening and trying to understand everything that has taken place. But again, as I said to your counsel, a few minutes ago, this is not a complaint review where we are trying to find fault or guilt on specific complaints. This is a practice review, and as a result we are given the responsibility of trying to review and understand at the fullest extent possible what has taken place, and as a result of the fullest extent of which has taken place, make findings and recommendations to the profession. [Emphasis added.]
Nevertheless, when it came to issue directions and recommendations, instead of proceeding under s. 39(3) of the Act as amplified by s. 11(1)(a), (b), (c), (e), (f) or (g) of the Regulation, the Board proceeded under s. 11(1)(d) of the Regulation, a provision that the Court of Appeal in the first appeal held to be ultra vires. The Court of Appeal held that ss. 50 to 53 deal with disciplinary matters which are beyond the competence of the Board. This decision of the Court of Appeal has not been challenged. Accordingly, the result of the decision of the Court of Appeal is that the Board conducted a valid hearing into the appellants' practice but issued findings and orders that were ultra vires and have been quashed.
In view of the fact that the Board erroneously thought it had the power of the Complaint Review Committee and proceeded accordingly, it did not consider recommendations under s. 39(3) of the Act or under s. 11(1)(a), (b), (c), (e), (f) or (g), and in particular (c), of the Regulation.
Kerans J.A. based his conclusion that the Board was not functus officio on the ground that the Board had a duty to consider whether to make a recommendation. He stated, at p. 257:
While the board has, under s. 39(3) and perhaps also the regulations, a discretion whether to make any recommendation, we think that the section imposes upon the board the duty to consider whether to make a recommendation. The report does not say that the board did so. If the board did not so consider, then, contrary to the finding of the learned Queen's Bench judge, the board has not exhausted its jurisdiction.
In view of the inexplicable use of "may/shall" in Regulation 11(1), it is difficult to determine precisely what the Board was obliged to do. Certainly it would be strange if the Board were empowered to conduct a lengthy practice review and had no duty to consider making recommendations, either to the parties or to Council, or to consider a referral to the Complaint Review Committee. Therefore, I agree with Kerans J.A. that the Board had the duty to consider making recommendations pursuant to the Regulation and s. 39(3) of the Architects Act.
I am, however, of the opinion that the application of the functus officio principle is more appropriately dealt with in the context of the following characterization of the current state of the Board's proceedings. The Board held a valid hearing into certain practices of the appellants. At the conclusion of the hearing, in lieu of considering recommendations and directions, it made a number of ultra vires findings and orders which were void and have been quashed. In these circumstances, is the decision of the Board final so as to attract the principle of functus officio?
Functus Officio
The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
1.where there had been a slip in drawing it up, and,
2.where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
In Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, Martland J., speaking for himself and Laskin J., opined that the same reasoning did not apply to the Immigration Appeal Board from which there was no appeal except on a question of law. Although this was a dissenting judgment, only Pigeon J. of the five judges who heard the case disagreed with this view. At p. 589 Martland J. stated:
The same reasoning does not apply to the decisions of the Board, from which there is no appeal, save on a question of law. There is no appeal by way of a rehearing.
In R. v. Development Appeal Board, Ex p. Canadian Industries Ltd., the Appellate Division of the Supreme Court of Alberta was of the view that the Alberta Legislature had recognized the application of the restriction stated in the St. Nazaire Company case to administrative boards, in that express provision for rehearing was made in the statutes creating some provincial boards, whereas, in the case of the Development Appeal Board in question, no such provision had been made. The Court goes on to note that one of the purposes in setting up these boards is to provide speedy determination of administrative problems.
He went on to find in the language of the statute an intention to enable the Board to hear further evidence in certain circumstances although a final decision had been made.
I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.
Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.
Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.)
In this appeal we are concerned with the failure of the Board to dispose of the matter before it in a manner permitted by the Architects Act. The Board intended to make a final disposition but that disposition is a nullity. It amounts to no disposition at all in law. Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision. In Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 147 D.L.R. (3d) 637 (B.C.S.C.), McLachlin J. (as she then was) summarized the law in this respect in the following passage, at p. 643:
I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v. Toronto Stock Exchange et al. (1968), 67 D.L.R. (2d) 165, [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:
I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.
There is no complaint made by Trizec Equities Ltd. with respect to the hearing held on March 19th. Accordingly, while the court exceeded its jurisdiction by purporting to increase the assessments on the morning of March 17, 1982, its subsequent decision of March 19, 1982, stands as valid.
If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.
In this proceeding the Board conducted a valid hearing until it came to dispose of the matter. It then rendered a decision which is a nullity. It failed to consider disposition on a proper basis and should be entitled to do so. The Court of Appeal so held.
On the continuation of the Board's original proceedings, however, either party should be allowed to supplement the evidence and make further representations which are pertinent to disposition of the matter in accordance with the Act and Regulation. This will enable the appellants to address, frontally, the issue as to what recommendations, if any, the Board ought to make.
In the result, the appeal is dismissed, but without costs. The respondents neither appeared on the argument nor filed a factum.
//L'Heureux-Dubé J.//
The reasons of La Forest and L'Heureux-Dubé JJ. were delivered by
L'HEUREUX-DUBÉ J. (dissenting) -- I must respectfully disagree with my colleague Justice Sopinka's disposition of this appeal.
The issues which arise in this appeal are:
(1)Was the Practice Review Board ("Board") of the Alberta Association of Architects functus officio after delivering a report on the practices leading to the bankruptcy of the Chandler Kennedy Architectural Group?
(2)If the Board was not functus officio, does it have the jurisdiction to continue the original hearing against the appellants to consider making recommendations to the Complaint Review Committee?
(3)Did the Court of Appeal err in its consideration and application of the principles relating to mandamus?
The first two, closely related issues, turn on the construction of s. 39 of the Architects Act, R.S.A. 1980, c. A-44.1, and Regulation 175/83 (passed under authority of the Act), which establish the Board and define its powers.
Section 39(3) of the Architects Act provides:
(3) The Board shall after each inquiry under this section make a written report to the Council on the inquiry and may make any recommendations to the Council that the Board considers appropriate in connection with the matter inquired into, with reasons for the recommendations.
The disputed text is found in Regulation 175/83, s. 11(1):
11(1) The Board may shall [sic] make one or more of the following directions or recommendations:
. . .
(c) ...direct that the matter be referred to the Complaint Review Committee for investigation: ...
The confusion emanates from the inclusion of both the permissive, discretionary term "may", and the affirmative, mandatory term "shall", without any indication as to which prevails. However, while I shall discuss the implications of both interpretations, in my view the appeal should be allowed on either construction.
(1) Functus Officio
When the Board first undertook to reopen the hearing, appellants sought an order for prohibition, which was granted by Brennan J. In granting the order, the chambers judge of the Court of Queen's Bench stated:
Unfortunately, the Practice Review Board proceeded to set itself up as having disciplinary functions and made findings and assessed penalties. Mr. Justice Kryczka declared these Findings and Orders a nullity, which decision was upheld by the Alberta Court of Appeal.
In my view, the Practice Review Board has completed and fulfilled the function for which it was appointed and therefore it is functus officio. Such being the case, it had no jurisdiction to continue with any function. Accordingly, the application is granted for an Order to prohibit the Board from proceeding further against these Applicants, and in particular, the Board is hereby prohibited from proceeding with any further hearings on this matter.
This decision was reversed by the Alberta Court of Appeal: (1985), 67 A.R. 255. According to Kerans J.A., for the court, the Board was not functus officio, and should be allowed to "voluntarily...do the right thing" (at p. 257):
[T]he board, having mistaken[ly] decided that it had itself the power to deal directly and finally with discipline questions, too quickly rejected any consideration of making recommendations to other bodies. We think that the board, persuaded by its mistaken assumption of these other powers, made such an egregious error about the significance of its powers of recommendation that it cannot be said that it has exercised that jurisdiction.
Jowitt's Dictionary of English Law (2nd ed. 1977) defines functus officio as "having discharged his duty"; an expression applied to a judge, magistrate or arbitrator who has given a decision or made an order or award so that his authority is exhausted. The holding of Morton J. in Re V.G.M. Holdings, Ltd., [1941] 3 All E.R. 417 (Ch. D.), is well summarized in the headnote:
Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay. The only means of obtaining any variation is to appeal to a higher tribunal.
An editorial note added that:
This is a practice point. It is well-settled that the court can vary any order before it is passed and entered. After it has been passed and entered, the court is functus officio, and can make no variation itself. Any variation which may be made must be made by a court of appellate jurisdiction.
Black's Law Dictionary (5th ed. 1979) defines functus officio as "a task performed":
Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect.
The doctrine of functus officio states that an adjudicator, be it an arbitrator, an administrative tribunal, or a court, once it has reached its decision cannot afterwards alter its award except to correct clerical mistakes or errors arising from an accidental slip or omission (Re Nelsons Laundries Ltd. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 292 (1964), 44 D.L.R. (2d) 463 (B.C.S.C.)) "To allow adjudicator to again deal with the matter of its own volition, without hearing the entire matter `afresh' is contrary to this doctrine" (appellants' factum, at p. 19).
In Re Nelsons Laundries Ltd., Verchere J. cited Lewis v. Grand Trunk Pacific Railway Co. (1913), 13 D.L.R. 152 (B.C.C.A.), at p. 154:
The question then is, when is an award made? In my opinion, when the arbitrator has done all that he can do, namely, reduce it to writing, and publish it as his award.
In M. Hodge and Sons Ltd. v. Monaghan (1983), 43 Nfld. & P.E.I.R. 162 (Nfld. C.A.), Morgan J.A. stated that (at p. 163):
Whether or not the trial judge was in error in the first instance in declaring the proceedings a nullity, and ordering the Writ of Summons and Statement of Claim to be struck out, is not relevant to the issue now before us. The order given was, by its very nature, final, and even if made in error it could not be amended by the judge who gave it. ... Clearly then the learned judge was functus officio and without jurisdiction to hear the matter.
Treatise authors dealing with administrative law issues have been surprisingly frugal in their treatment of the functus officio doctrine. Perhaps the most concise statement of the doctrine can be found in Pépin and Ouellette, Principes de contentieux administratif (2nd ed. 1982), at p. 221:
[TRANSLATION] In the case of quasi-judicial acts, the courts have held that decisions made in due form are irrevocable. To some extent the approach taken has been that once a government body has granted or recognized the rights of an individual, they cannot be challenged by the power of review: individuals are entitled to legal security in decisions. Once the decision is made, the file is closed and the government body is "functus officio". The legislature will often also take the trouble to specify that the decision is "final and not appealable". The rule that quasi-judicial decisions are irrevocable also seems to apply to domestic tribunals. However, there may be exceptions to the rule when the initial decision is vitiated by a serious procedural defect, such as failure to observe the rules of natural justice.
In line with that doctrine, if the Board had discretion to consider making recommendations, and chose not to, that should be the end of the matter. The finality of the Board's decision can be ascertained from its own language when it made its orders. The actual report of the Board reveals that the hearings concluded on December 17, 1984. The Board members signed the report under the heading "Conclusions". Furthermore, given that the Council of the Alberta Association of Architects issued a notice of hearing of an appeal from the decision rendered by the Board, it too must have considered the hearing complete. In the actual findings of the Board, they imposed suspensions, effective immediately. The report is entitled "Report of the Practice Review Board", the rendering of which is the function of that tribunal. All these factors indicate that the Board had completed its function and had rendered its final report.
It seems to me that there is a fundamental flaw in the reasoning of the Alberta Court of Appeal. If the Board was not functus officio after handing down its decision, at what point does it become so? In this case an appeal was filed, though not heard because the original ruling was quashed. If the Board is not functus officio when the decision is handed down, it must certainly be so by the time an appeal is filed. If not, then the logical conclusion would be that the Board could sit again to redetermine a matter even after an appeal had been heard, for there is no principled basis on which to say that at some point after the decision has come down the Board becomes functus officio, and there seems no way to rationally define an exception for the rare circumstance where the Board fails to consider the exercise of a discretionary duty. In my view, this point should be fatal to the respondents.
If a tribunal has discretion, i.e. if it may consider making recommendations, and chooses not to, there is no authority in the Architects Act that permits it to change its mind on its own initiative. Furthermore, once a board acts ultra vires, it should not be allowed to rectify the infirmities of its disposition according to its own predilections. Standards of consistency, certainty, and finality must be preserved for the effective development of the complex administrative tribunal system in Canada. Either a board is compelled to act in a prescribed manner, or it is prohibited from so acting. Allowing the Board to reopen the hearing, without an explicit provision in the enabling statute, would create considerable confusion in the law relating to powers of administrative tribunals to rehear or redecide matters.
In most administrative decisions, the tribunal does not address the fact that it has considered all of its discretionary powers but has elected to invoke only a few of those powers. I agree with the holding in Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.), that a tribunal should not be allowed to reserve the exercise of its remaining powers for a later date. The Board could not attempt to retain jurisdiction to make recommendations to Council once it has made a final order, as the parties would never have the security of knowing that the decision rendered has finally determined their respective rights in the matter.
There are, of course, exceptions to the general rule that an arbitrator who has reached a final decision becomes functus officio and cannot afterwards alter his award. For example an adjudicator may correct clerical mistakes or errors arising from an accidental slip or omission (Lodger's International Ltd. v. O'Brien (1983), 45 N.B.R. (2d) 342 (N.B.C.A.); Re Nelsons Laundries Ltd., supra). However, the Board in the present case is not seeking to correct a slip or clerical error. If it had the option to consider making recommendations, and yet chose not to, that choice does not detract from the finality of the decision.
When a decision is rendered with nothing to be completed, there is no doubt that the adjudicator is functus officio: any further action would be entirely without authority (Slaight Communications Inc. v. Davidson, [1985] 1 F.C. 253 (C.A.), affirmed [1989] 1 S.C.R. 1038). Hence, if the Board is seen as having discretion whether or not to consider making recommendations, and the Alberta Court of Appeal decision is left undisturbed, the doctrine of functus officio would be rendered nugatory.
In Lodger's International Ltd., supra, the New Brunswick Court of Appeal dealt with a series of orders by the New Brunswick Human Rights Commission. The Commission first ordered an employer to compensate two employees. When the employer did not comply, the Commission renewed the order with a time limit for payment. Section 21(2) of the Human Rights Act provided that the orders were "final". The court held that the second order was improper and that the Commission was functus officio after the first order, because s. 21 did not authorize subsequent orders. La Forest J.A. (now of this Court), writing for the court, addressed the issue of whether the Commission was empowered to make such a series of orders and concluded that (at p. 352):
It would take strong words indeed to convince me that the legislature ever intended to give this kind of power to an administrative body, however lofty its goals and however liberally we are expected to construe the statute to facilitate the achievement of these goals.
Unlike the enabling statute in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, where the Immigration Appeal Board had statutory jurisdiction to hold a rehearing under s. 15 of the Immigration Appeal Board Act, there is no authority in the Architects Act for the Board to hold a rehearing. Cité de Jonquière v. Munger, [1964] S.C.R. 45, also supported a policy favouring the finality of decisions unless the statute dictates otherwise. Upholding the unanimous decision of the Quebec Court of Appeal, Cartwright J., for the Court, held that (at p. 48):
I am satisfied that the council had the right to interpret the award but not to amend it. This does not mean, however, that it did not have the right to correct a simple clerical error. Anybody having quasi-judicial powers must have such a right, otherwise the consequences of a simple slip in drafting an award might be disastrous.
Furthermore, I agree with the holding in M. Hodge and Sons Ltd., supra, that the fact that the original decision was wrong or made without jurisdiction is irrelevant to the issue of functus officio (at p. 163):
The order given was, by its very nature, final, and even if made in error it could not be amended by the judge who gave it.
(2) The Board's Jurisdiction to Rehear
The Alberta Court of Appeal interpreted the Architects Act, and Regulation 175/83, as imposing a duty on the Board to consider whether to make a recommendation to the Governing Council or Complaint Review Committee.
Despite the ambiguous language, my colleague, Sopinka J., concludes that the Act imposes a duty on the basis that "it would be strange if the Board were empowered to conduct a lengthy practice review and had no duty to consider making recommendations (p. 000)". Given that "the Board conducted a valid hearing until it came to dispose of the matter" (p. 000), my colleague suggested that "[o]n the continuation of the Board's original proceedings . . . either party should be allowed to supplement the evidence and make further representations which are pertinent to the disposition of the matter" (p. 000). Hence, while it would provide for the presentation of supplementary evidence, the rehearing itself would not be conducted afresh, but rather as a "continuation of the Board's original proceedings".
This analysis does have a certain intuitive appeal: given that a Practice Review Board does exist, and has a certain function to fulfill, it should be allowed, or rather required, to perform that function. However, the issue here is precisely that the Board did exercise that function, albeit illegally.
There is no dispute that when making the final orders it did, the Board clearly exceeded its jurisdiction. The Chairman of the Board himself set out the Board's functions and explicitly recognized that:
[T]his is not a complaint review where we are trying to find fault or guilt on specific complaints. This is a practice review, and as a result we are given the responsibility of trying to review and understand at the fullest extent possible what has taken place, and as a result if the fullest extent of which has taken place, make findings and recommendations to the profession.
Following this introduction, the Board embarked on an adjudicatory path which the courts found to be wholly ultra vires. If it had a duty to consider whether to make a recommendation to the Complaint Review Committee, it did not do so.
Even though the Board was wrong in its initial decision, the question is whether that precludes the Board from now attempting to correctly carry out its function. According to my colleague, as the Board's disposition was a nullity, it amounts to no disposition at all in law: "a tribunal which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision" (p. 000) (emphasis added), relying on Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 147 D.L.R. (3d) 637 (B.C.S.C.), where McLachlin J. (now of this Court) wrote, at p. 643:
I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (B.C.S.C.); Posluns v. Toronto Stock Exchange et al. (1968), 67 D.L.R. (2d) 165, [1968] S.C.R. 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v. Baldwin, [1964] A.C. 40 at p. 79, where he said:
I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid. [Emphasis added.]
These precedents distinctly indicate that whenever special circumstances do warrant reconsideration by an administrative tribunal, such is to take place "afresh", not merely as a continuation of the tainted process now sought to be corrected.
Furthermore, Re Trizec dealt with a procedural error by the Court of Revision. While acting wholly within the domain of its substantive jurisdiction, the Court of Revision increased an assessment against a taxpayer before allowing the taxpayer to be heard. Two days later, at the request of the taxpayer, the court reconvened and a hearing was conducted. Hence, this case is distinguishable on at least three grounds:
(1) the court in Re Trizec was instructed to consider the matter afresh and conduct a proper hearing; the Alberta Court of Appeal in Chandler allowed the Board to continue its original proceeding;
(2) the court, acting within its jurisdiction, made a procedural error which it subsequently corrected; the Board in Chandler was not empowered at the substantive level to make any of the findings it did; and
(3) the taxpayer itself requested a hearing, whereas the Board in Chandler reopened the proceedings on its own initiative.
The issues in Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (B.C.S.C.), relied upon in Re Trizec, were almost identical. A teacher was dismissed on three grounds of misconduct, yet was heard on only two of those grounds. He was then heard on the third ground and the dismissal was upheld.
The suggestion that the Board's original proceedings be continued is especially disturbing. It would set a dangerous precedent in expanding the powers of administrative tribunals beyond the wording or intent of the enabling statute. Furthermore, it would erode the protection of fairness and natural justice which every citizen of this country has a right to expect from administrative tribunals. The original hearing was conducted under the mistaken belief by the Board that it could make certain orders, despite the Chairman's introductory words. The Chairman's comments, reproduced above, clearly indicated that the hearings were intended to be a practice review rather than an inquiry into allegations of unprofessional conduct.
Kryczka J. of the Alberta Court of Queen's Bench held that, given the failure to inform the appellants that they were facing any such discipline charges or allegations, "it is difficult for me to conceive how the eventual result could be characterized as anything other than a travesty of justice". It might be that the appellants would have entered into a different course or line of defense at the hearing had they suspected that they were being investigated with respect to matters entirely outside the scope of the Board's jurisdiction. Unaware and not informed of the discipline charges that were in fact contemplated by the Board, appellants were not legally in a position to prepare a full defense to the allegations and orders ultimately made against them.
Appellants further contend that, if upheld, the decision of the Alberta Court of Appeal must be taken as overturning the judgment of the same court in Canadian Industries Ltd. v. Development Appeal Board of Edmonton (1969), 71 W.W.R. 635, cited with approval in Grillas, supra, at pp. 588-89. Canadian Industries dealt with a board that held a hearing without giving notice to the appellant who was entitled to such notice as an interested party. The Board then held a rehearing of which proper notice was given, and decided, after hearing submissions, that its previous order should not be changed. Johnson J.A., for the Court of Appeal held that both orders had to be set aside. The first was a nullity as the appellant was not notified. The second was a nullity as well in the absence of clear statutory authority to conduct a rehearing.
As mentioned previously, there is no clear statutory language enabling the Board to conduct a rehearing. If the Board has a duty which it failed to fulfill, it can, depending on the circumstances of the case, be directed to review the entire matter afresh, and can be required to conduct a new hearing. Re Trizec and Lange, supra. However, if it sets out to do one thing and winds up doing something entirely different, any reexamination should not be construed as a "continuation of the Board's original proceedings".
I would like to briefly address the prima facie apprehension that a direction to the Board to conduct a new hearing is tantamount to "double adjudication". That would be a valid concern if the Board is seen as having discretion. It would then be making orders subsequent to its being rendered functus officio. However, if it has an imposed duty, a rehearing would only be required if the original hearing is determined to be a total nullity, and the case so warrants. In that case, the apprehension of allowing a tribunal to make a series of orders, Lodger's International Ltd., supra, would not arise. In the particular circumstances of this case, a rehearing would not be appropriate in my view.
Mandamus
As the Court of Appeal twice referred to the principles of mandamus, I will address them as well. However, I agree with appellants that these principles have nothing to do with this appeal.
Laidlaw J.A. set out the requirements for mandamus in Karavos v. Toronto, [1948] 3 D.L.R. 294 (Ont. C.A.), at p. 297:
Before the remedy can be given, the applicant for it must show (1) "a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced" . . . ; (2) "The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief . . . "; (3) That duty must be purely ministerial in nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers"; (4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy . . . .
Hence, mandamus appears to be a remedy that would apply against a tribunal or authority, and not one to be invoked by it. If the Board declined to exercise jurisdiction, then mandamus would lie. However, that is not the case here. Quite the contrary; the Board took it upon itself to exercise more jurisdiction than in fact it had. That alone would undermine the Court of Appeal's application of mandamus to this case. Furthermore, if we are to follow the requirements set out above, none appear to be satisfied by the facts here:
(1) There is no clear legal right in issue.
(2) The Board may have had discretion whether or not to make recommendations.
(3) Whether or not the Regulation confers discretion upon the Board is still an open question, and if the Board has a duty to consider making recommendations, it certainly has discretion whether or not to make them, and which ones to make, if any.
(4) There has been no demand by the appellants or refusal by the Board to perform, as is required by mandamus.
Conclusion
On either interpretation of the ambiguous language in the Regulation, I am of the view that the appeal should succeed. If the Board had discretion, and decided to act in a certain manner, it is now functus officio. If it had an imposed duty which it did not perform, it cannot continue with a tainted hearing. For the reasons discussed above, mandamus is not a controlling factor in this appeal.
Therefore, I would allow the appeal, vacate the order of the Court of Appeal and restore the judgment of Brennan J. prohibiting the Board from acting any further in this matter, the whole with costs throughout.
Appeal dismissed, LA FOREST and L'HEUREUX‑DUBÉ JJ. dissenting.
Solicitors for the appellants: Code Hunter, Calgary.