Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353 et al.

[Indexed as: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353]

98 O.R. (3d) 677

Court of Appeal for Ontario,

Simmons, Blair and Epstein JJ.A.

October 29, 2009

Employment -- Labour relations -- Labour Relations Board -- Reasons for decision -- Board having obligation to provide reasons for its decisions -- Term "decisions" in s. 114(1) of Labour Relations Act including reasons for decision but s. 114(1) not giving Board power to provide supplementary expanded reasons for decision at request of successful party -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 114(1).

The union filed a grievance on the employer's characterization of the nature of certain work. The Ontario Labour Relations Board issued a two-page decision upholding the grievance. In response to a request by counsel for the union for fuller reasons for the decision, the Board provided a second set of reasons, adding six paragraphs to the first set. The Divisional Court dismissed the employer's application for judicial review. The court found that the first set of reasons was inadequate, but held that s. 114(1) of the Labour Relations Act, 1995 permits the Board to issue supplemental reasons and that s. 114(1) is framed broadly so as to ensure that the Board is not functus once it has issued a decision. The employer appealed.

Held, the appeal should be allowed

Per Epstein J.A. (Blair J.A. concurring): The Board has an obligation to provide reasons. Section 114(1) of the LRA allows the Board to reconsider "any decision, order, direction, declaration or ruling". The term "decisions" in s. 114(1) includes the reasons for the decision. However, s. 114(1) does not give the Board jurisdiction to issue supplementary reasons in circumstances where the decision is not in play. Rather, it gives the Board power to reconsider the merits of its decision, upon receiving full submissions from the parties, in accordance with its Rules of Procedure. There is no provision in the LRA that gives the Board the power to issue supplementary reasons designed to repair deficiencies in an earlier set of reasons. Therefore, the common law doctrine of functus officio applied.

Per Simmons J.A. (concurring): The reconsideration power contained in s. 114 of the LRA does not give the Board express statutory authority to deliver supplementary reasons for a prior decision that has not been reconsidered. However, the absence of express statutory authority does not mean that the Board lacked jurisdiction to deliver supplementary reasons. The Board's authority to deliver reasons, whether original or supplementary, is ancillary to its power to make decisions and determinations, and does not require explicit statutory authority. The functus officio doctrine does not deprive the Board of jurisdiction to deliver supplementary reasons. The question of whether supplementary reasons should be considered on a judicial review application is a fairness issue. In this case, the circumstances under which the Board's second set of reasons were issued raised a concern that they might be the product of result-oriented, after-the-fact reasoning. The consideration of those r easons on the judicial review application was unfair to the employer.

APPEAL from the judgment of the Divisional Court (Cumming, Swinton and R.J. Smith JJ.) (2008), 2008 CanLII 26686 (ON SCDC), 91 O.R. (3d) 20, [2008] O.J. No. 2186 (Div. Ct.) dismissing an application for judicial review of a decision of the Ontario Labour Relations Board.

Cases referred to Canac Shock Absorbers Ltd. and International Union, United Automobile, Aerospace & Agricultural Workers of America (U.A.W.), Local 984 (Re) (1975), 1974 CanLII 585 (ON SC), 5 O.R. (2d) 648, [1974] O.J. No. 2108, 51 D.L.R. (3d) 208 (Div. Ct.); [page678] International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460, 225 O.A.C. 341, [2008] CLLC Â220-007, 158 A.C.W.S. (3d) 860, 71 Admin. L.R. (4th) 101 (Div. Ct.); R. v. Teskey, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, 2007 SCC 25, 280 D.L.R. (4th) 486, 364 N.R. 164, [2007] 8 W.W.R. 385, J.E. 2007-1147, 74 Alta. L.R. (4th) 1, 412 A.R. 361, 220 C.C.C. (3d) 1, 47 C.R. (6th) 78, 73 W.C.B. (2d) 457, EYB 2007-120453, consd Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102, 62 D.L.R. (4th) 577, 99 N.R. 277, [1989] 6 W.W.R. 521, J.E. 89-1361, 70 Alta. L.R. (2d) 193, 101 A.R. 321, 40 Admin. L.R. 128, 36 C.L.R. 1, 17 A.C.W.S. (3d) 598; Clifford v. Ontario Municipal Employees Retirement System, [2009] O.J. No. 3900, 2009 ONCA 670, 76 C.C.P.B. 184, 93 Admin. L.R. (4th) 131; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, J.E. 2003-2076, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; Etobicoke (Borough) v. Etobicoke Professional Firefighters Association Local 1137 (1982), 1982 CanLII 3243 (ON SCDC), 37 O.R. (2d) 212, [1982] O.J. No. 3300, 134 D.L.R. (3d) 374, 14 A.C.W.S. (2d) 134 (Div. Ct.); Kowalski v. Royal Ford Lincoln Mercury Sales Ltd. (c.o.b. Royal Ford Lincoln Mercury), 1993 CanLII 9131 (SK CA), [1993] S.J. No. 576, 116 Sask. R. 73, 44 A.C.W.S. (3d) 44 (C.A.); R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 2002 SCC 55, 213 D.L.R. (4th) 234, 290 N.R. 71, J.E. 2002-1232, 160 O.A.C. 271, 164 C.C.C. (3d) 385, 2 C.R. (6th) 1, 53 W.C.B. (2d) 300; R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 82 O.R. (3d) 772, [2006] O.J. No. 3676, 270 D.L.R. (4th) 280, 216 O.A.C. 252, 211 C.C.C. (3d) 449, 36 M.V.R. (5th) 1, 70 W.C.B. (2d) 844 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006; Thomson v. Canada (Deputy Minister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 S.C.R. 385, [1992] S.C.J. No. 13, 89 D.L.R. (4th) 218, 133 N.R. 345, J.E. 92-277, 3 Admin. L.R. (2d) 242, 31 A.C.W.S. (3 2006 SCC 14, 210 O.A.C. 267, 42 Admin. L.R. (4th) 104, 147 A.C.W.S. (3d) 326, EYB 2006-104056, 56 C.H.R.R. D/1; Via Rail Inc. v. National Transportation Agency, 2000 CanLII 16275 (FCA), [2000] F.C.J. No. 1685, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357, 261 N.R. 184, 26 Admin. L.R. (3d) 1, 100 A.C.W.S. (3d) 705 (C.A.) Statutes referred to Labour Relations Act, R.S.O. 1970, c. 232, ss. 91(12), 95(1) Labour Relations Act, 1995 S.O. 1995, c. 1, Sch. A, ss. 2, 48(19) [as am.], 96(6) [as am.], 99(10) [as am.], 102 [as am.], 110(16), 114, (1), 133 [as am.], 144(4) [as am.], 151(1) [as am.], 168(8) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 17 [as am.], (1) [as am.] Rules and regulations referred to Ontario Labour Relations Board, Rules of Procedure Authorities referred to Brown, Donald J.M., Civil Appeals, vol. 2, looseleaf (Toronto: Canvasback Publishing, 2009) [page679] Dreidger, E.A., The Construction of Statutes (Toronto: Butterworths, 1974) Macaulay, R.W., and J. Sprague, Practice and Procedure before Administrative Tribunals, vol. 3, looseleaf (Toronto: Thomson Canada Limited, 2004)

Roy C. Filion and Laura Karabulut, for appellant. Ronald Lebi, for respondent International Brotherhood of Electrical Workers, Local 353. Leonard Marvy, for respondent The Ontario Labour Relations Board. Chris G. Paliare and Donald K. Eady, for respondent General Presidents' Maintenance Committee for Canada. Scott G. Thompson, for respondent The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario.

EPSTEIN J.A. (BLAIR J.A. concurring):

I. Introduction

[1] This appeal raises the issue of the jurisdiction of the Ontario Labour Relations Board to amend its reasons.

[2] On January 7, 2006, a fire caused extensive damage to a Petro-Canada plant. A dispute arose over the characterization of the nature of the work required to repair the plant.

[3] The dispute came before the Ontario Labour Relations Board by way of a grievance under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "LRA"). After a lengthy hearing, the Board rendered a two-page decision (the "first set of reasons"). Shortly thereafter, counsel for the successful party, the respondent, the International Brotherhood of Electrical Workers (the "IBEW"), asked the Board to provide "fuller reasons for its decision". This request was resisted by the unsuccessful party, Jacobs Catalytic Inc., on the basis that the Board lacked jurisdiction to render supplementary reasons. Notwithstanding this objection, the Board released a redrafted decision (the "second set of reasons").

[4] Jacobs' application to the Divisional Court for judicial review, on grounds that included a challenge to the Board's jurisdiction to issue the second set of reasons, was dismissed by a majority.

[5] In Jacobs' appeal to this court, a preliminary issue has been raised concerning the Board's jurisdiction to issue supplementary [page680] reasons. This issue is particularly important to the determination of this appeal as the parties agree that the Board's first set of reasons are inadequate. Accordingly, if the Board lacked jurisdiction to render the second set of reasons, Jacobs has been denied procedural fairness and the appeal must be allowed.

[6] In my view, the Divisional Court erred in finding that the Board had jurisdiction to issue the second set of reasons. Accordingly, for the reasons that follow, I would allow the appeal and send the matter back for a new hearing before a differently constituted Board.

II. Background Facts

[7] The facts leading up to the hearing before the Board are only relevant to put the issues surrounding the Board's reasons in some context. I will therefore summarize them, but briefly.

[8] Jacobs and the IBEW are bound by two collective agreements: a project agreement for maintenance, by contract in Canada applicable to the Petro-Canada site (the "GPMA") and the principal agreement.

[9] The GPMA is between Jacobs and the General Presidents' Maintenance Committee for Canada (the "GPMC"), a council of 13 building trade unions. The GPMC negotiates and administers GPMAs across Canada that bind both large maintenance contractors, such as Jacobs, and the 13 unions, including the IBEW, to a set of terms and conditions for the performance of maintenance work by union members.

[10] The principal agreement is a "provincial agreement" as defined in s. 151(1) of the LRA, between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the "ETBA") and the IBEW.

[11] A significant difference between the two collective agreements is that the GPMA provides for wage rates of $1 per hour less than the principal agreement, overtime after 40 hours per week rather than 37.5 hours per week and no interruption of work during a provincial construction strike.

[12] Jacobs took the position that the fire restoration work is maintenance work, properly falling under the GPMA. The IBEW grieved, claiming that Jacobs should have applied the principal agreement to the work in question on the basis that under the LRA, the work is construction work. The grievance was referred to the Board for arbitration pursuant to s. 133 of the LRA. The Board granted the GPMC and the ETBA intervenor status.

[13] The Board heard evidence over six days from nine witnesses and received written and oral submissions before reserving its decision. [page681]

[14] In its first set of reasons, two pages in length and released on November 15, 2006, the Board dealt with two issues: whether the work in question was maintenance or construction within the meaning of the LRA; and, if construction, whether the doctrine of estoppel should apply.

[15] The Board upheld the grievance, concluding that the work was within the definition of construction work under the LRA, that the doctrine of estoppel could not override the applicable collective agreement and that, as a result, Jacobs had violated the principal agreement and was liable for damages.

[16] In a letter dated December 1, 2006, counsel for the IBEW asked the Board to provide "fuller reasons for its decision". Jacobs objected on the ground that the Board lacked jurisdiction to redraft its reasons.

[17] On February 1, 2007, the Board provided the second set of reasons -- two and a half pages in length -- in which six paragraphs were added to the first set of reasons. In these reasons, the Board said that it had jurisdiction to expand upon its reasons. It gave no authority in support of this position.

III. Statutory Framework

[18] The jurisdiction of a statutory tribunal such as the Board is entirely circumscribed by statute: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14, at paras. 16, 27 and 47. It follows that the statutory framework of the Board's enabling statute, the LRA, governs the Board's jurisdiction to issue further reasons.

[19] The relevant provision of the LRA states:

114(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[20] The Board's Rules of Procedure set out the process for making a request for reconsideration pursuant to s. 114(1); the required steps include completing the prescribed forms and filing complete written submissions with the Board within the prescribed time period.

[21] Furthermore, the Board has adopted the following principles by which it is guided in determining whether to grant a reconsideration request. The General Guidelines contained in the Ontario Labour Relations Board's Information Bulletin No. 19 read as follows: [page682]

Generally, the Board will not reconsider its decision unless the requesting party has new evidence that would be practically conclusive of the case and that it could not have reasonably obtained earlier, or the party has new objections or arguments that it had no opportunity to raise earlier. Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. (See John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096.) If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision. (Emphasis in original)

IV. The Decision Below

[22] In reasons dated June 4, 2008, the Divisional Court dismissed Jacobs' application for judicial review.

[23] The Divisional Court found the first set of reasons inadequate but held, at para. 48, that s. 114(1) of the LRA permits the Board to issue supplemental reasons, stating that the provision "is framed broadly, so as to ensure that the Board is not functus once it has issued a decision". The Divisional Court relied on Canac Shock Absorbers Ltd. and International Union, United Automobile, Aerospace & Agricultural Workers of America (U.A.W.), Local 984 (Re) (1975), 1974 CanLII 585 (ON SC), 5 O.R. (2d) 648, [1974] O.J. No. 2108 (Div. Ct.) as support for the Board's power to vary or clarify a decision. It also noted that in International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460 (Div. Ct.) ("IBEW 1739"), the Divisional Court was critical of an applicant in a judicial review application who attacked the adequacy of the Board's reasons without first asking the Board for further reasons or asking for a reconsideration pursuant to s. 114(1) of the LRA. The Divisional Court acknowledged, however, that the Board in IBEW 1739 had specifically reserved the power to issue further reasons.

[24] Finally, at para. 50, the Divisional Court also provided a policy rationale in support of its decision, stating:

From a policy perspective, it makes sense to permit the Board to issue supplemental reasons in a case like this, as the provision of such reasons may be sufficient to avoid the costs and delay associated with an application for judicial review. Here, the application for judicial review had not yet been launched at the time the Second Reasons were issued, and there is no apparent prejudice to the unsuccessful party because of the issuance of these reasons.

[25] The majority went on to find the second set of reasons to be adequate and, after rejecting the other grounds upon which Jacobs relied, dismissed the application. While Smith J. dissented in the [page683] result, he did agree that the Board had jurisdiction to issue supplemental reasons pursuant to s. 114(1) of the LRA.

V. Issues

[26] In this appeal, Jacobs raises the following issues: (1) Whether the Divisional Court erred in determining that the Board, in these circumstances, was entitled to issue supplementary reasons at the request of the successful party. (2) Whether the majority of the Divisional Court erred in finding that the second set of reasons was adequate. (3) Whether the Divisional Court erred in its determination of the standard of review with respect to the Board's application of the doctrine of estoppel. (4) Whether the majority of the Divisional Court erred in determining that the Board's application of the doctrine of estoppel was reasonable.

[27] Given my conclusion that the Board did not have jurisdiction to issue the second set of reasons and the parties' agreement that in such case the appeal ought to be allowed, it is only necessary for me to address the first issue.

VI. Analysis

[28] As a preliminary matter, I start with the Board's duty to provide reasons.

[29] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, the Supreme Court established that in certain circumstances the duty of procedural fairness will include a requirement that an administrative tribunal provide reasons for its decision.

[30] In this court's recent decision, Clifford v. Ontario Municipal Employees Retirement System, [2009] O.J. No. 3900, 2009 ONCA 670, Goudge J.A. referred to Baker in explaining the process whereby the content of the duty of procedural fairness may be determined, including the obligation, if any, to give reasons. At para. 20, he said:

While acknowledging there may be other factors, Baker suggests five factors of relevance to determine the content of the duty of fairness: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme being administered; the importance of the decision to the affected individual; the legitimate expectations of the person challenging the decision; and respect for the choice of procedures made by the administrative agency itself. [page684]

[31] In this case, the decision determined significant rights of the parties and there is a right to have the decision reviewed. Furthermore, the process used was very much like a court process. The Board, like the courts, has a body of jurisprudence, regularly refers back to its own decisions and has its own official reporter series. In my view, it is therefore within the parties' reasonable expectations that they will receive reasons. These observations support the conclusion that the Board is obliged to provide reasons.

[32] But what of the Board's jurisdiction to revisit its reasons? This question introduces the concept of functus officio. Guidance on the application of functus to administrative tribunals can be found in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102, where Sopinka J. said, at p. 861 S.C.R., that:

As a general rule, once [an administrative 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., [1934 CanLII 1 (SCC), [1934] S.C.R. 186].

[33] Beyond clerical or mathematical errors, or an error in expressing the tribunal's intention, functus officio generally applies except where varied by statute. There is no suggestion in this case of a slip or error. Therefore, the Board's jurisdiction to revisit its reasons must be through the authorization of the LRA.

[34] Both the IBEW and the Board, in arguing that the Board had jurisdiction to render the second set of reasons, rely, in various ways, on the interpretation they say should be given to s. 114(1) of the LRA, policy considerations and certain jurisprudence.

1. Statutory construction

[35] Clearly, s. 114(1), the section that deals directly with the Board's authority to revisit reasons, is the governing provision. The Board points out that the section does not mention "reasons" specifically, but rather refers to "decisions, orders, directions, declarations, or rulings" and argues that the power to vary a decision must include the power to vary or supplement its reasons. The term "decisions" in s. 114(1) must include the reasons for the decision.

[36] As discussed, I agree with this point, but it takes me to a different conclusion. [page685]

[37] According to the modern principles of statutory interpretation, "the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974), at p. 67; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21.

[38] As previously indicated, the Baker analysis leads me to conclude that reasons must accompany every Board decision. In other words, the Board's decisions must be reasoned decisions.

[39] Principles of statutory interpretation support the conclusion that in s. 114(1) the word "decision" must include "reasons". The LRA, periodically refers to the filing of a decision "exclusive of the reasons therefor": LRA, s. 48(19); see, also, LRA, ss. 96(6), 99(10), 102, 144(4) and 168(8). This suggests that in all other sections where the word "decision" appears alone, it must be intended to include the reasons behind the decision. It is a principle of interpretation that "[u]nless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act": Thomson v. Canada (Deputy Minister of Agriculture), 1992 CanLII 121 (SCC), [1992] 1 S.C.R. 385, [1992] S.C.J. No. 13, at p. 400 S.C.R. (per Cory J., for the majority). As a matter of interpretation, I conclude that an unqualified reference to a "decision" in the LRA, as in s. 114(1), includes the "reasons therefor".

[40] I therefore, in agreement with the submissions of the Board, start from the position that in the context of s. 114(1) of the LRA, the term "decision" means the decision and its reasons.

[41] However, the Board and I part company on the consequences of this conclusion in terms of jurisdiction to revisit reasons in the absence of a request to reconsider the decision itself.

[42] The words of s. 114(1), read "in their grammatical and ordinary sense", do not countenance the possibility that the Board has jurisdiction to issue supplementary reasons in circumstances where the decision is not in play. The relevant portion states that "the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling". This section does not mention the power to augment reasons, expand upon reasons or issue supplementary reasons. Rather, the use of the conjunctive "and" indicates that any decision by the Board to "vary or revoke" one of its decisions will be as a result of its first having reconsidered the decision. [page686]

[43] According to the Canadian Oxford Dictionary, 2nd ed., "reconsider" means "consider again, [especially] for a possible change of decision". In plain language, it means putting the result in play.

[44] Here, the IBEW did not ask the Board to reconsider its decision; indeed, a request for reconsideration emanating from the IBEW would be more than passing strange since it was successful before the Board.

2. Policy considerations

[45] The same conclusion is reached by considering the policy behind s. 114(1).

[46] Section 2 of the LRA sets out the objects of the LRA. It reads:

2. The following are the purposes of the Act:
3. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
4. To recognize the importance of workplace parties adapting to change.
5. To promote flexibility, productivity and employee involvement in the workplace.
6. To encourage communication between employers and employees in the workplace.
7. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions.
8. To encourage co-operative participation of employers and trade unions in resolving workplace issues.
9. To promote the expeditious resolution of workplace disputes.

[47] Section 114(1) seems designed to achieve the last of these objects, namely, to promote the expeditious resolution of workplace disputes. This particular objective stems from the nature of the relationship between the parties: unions and employers must be able to continue to work together despite any disputes that may arise: see IBEW 1739, at paras. 15-17.

[48] A common argument in favour of allowing an agency to reconsider its decision is that it is more time and cost effective to allow a tribunal to correct its own error rather than wait for a court to order it to correct the error following a judicial review: R.W. Macaulay and J. Sprague, Practice and Procedure before Administrative Tribunals, vol. 3, looseleaf (Toronto: Thomson Canada Limited, 2004), at p. 27A-2. As previously mentioned, the Divisional Court relied upon this policy rationale in its reasons supporting the Board's actions. [page687]

[49] This argument is convincing insofar as it provides normative support for a tribunal's reconsideration power. However, I am not persuaded by this rationale in the circumstances here, where the Board has issued reasons that are prima facie final and the successful party has requested that the Board augment those reasons. Allowing the Board to provide "fuller" reasons does not promote efficiency and timeliness; rather, it does the opposite. When a tribunal does not announce that further reasons are to come, it is fair for the parties to assume that the reasons issued are final and to arrange their affairs accordingly, including deciding whether and on what grounds to seek judicial review. Leaving a decision open to supplementary reasons invites the unnecessary consumption of resources and avoids finality -- consequences that are hardly consistent with the objective of the expeditious resolution of workplace disputes.

[50] Furthermore, supplementary reasons run the risk of giving the appearance of the Board's attempting to "cooper up" the decision: see Donald J.M. Brown, Civil Appeals, vol. 2, looseleaf (Toronto: Canvasback Publishing, 2009), at pp. 13-31 to 13-32; see, also, Kowalski v. Royal Ford Lincoln Mercury Sales Ltd. (c.o.b. Royal Ford Lincoln Mercury), 1993 CanLII 9131 (SK CA), [1993] S.J. No. 576, 116 Sask. R. 73 (C.A.), at para. 14.

[51] The consequences of such a perception have been considered in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25, at para. 18, where the majority held that:

Reasons rendered long after a verdict, particularly where it is apparent that they were entirely crafted after the announcement of the verdict, may cause a reasonable person to apprehend that the trial judge may not have reviewed and considered the evidence with an open mind as he or she is duty-bound to do but, rather, that the judge has engaged in result-driven reasoning. In other words, having already announced the verdict, particularly a verdict of guilt, a question arises whether the post-decision review and analysis of the evidence was done, even subconsciously, with the view of defending the verdict rather than arriving at it. . . . Further, if an appeal from the verdict has been launched, as here, and the reasons deal with certain issues raised on appeal, this may create the appearance that the trial judge is advocating a particular result rather than articulating the reasons that led him or her to the decision.

[52] While Teskey is a criminal case, the rationale applies here. When an adjudicator purports to issue the final reasons for a decision and later issues supplementary reasons, without explaining why the supplementary reasons did not form part of the initial reasons, a reasonable person may apprehend that the adjudicator engaged in results-based reasoning in order to shore up the decision. If the adjudicator had relied on the content of [page688] the supplementary reasons in arriving at the decision, those reasons should have formed part of the first set of reasons.

[53] Finally, and in my view, significantly, interpreting the LRA so as to prevent the provision of revised reasons in these circumstances encourages focused decision-making that is clearly and fully explained at the outset.

3. Jurisprudence relating to functus officio

[54] In my view, the jurisprudence upon which the IBEW relies to overcome the application of functus does not support its arguments.

[55] Both the Divisional Court and the IBEW cite Canac Shock Absorbers (Re) and IBEW 1739 as supporting the conclusion that the Board has the power to provide supplementary, clarifying reasons despite the doctrine of functus officio.

[56] In Canac Shock Absorbers (Re), the Board initially decided that the two corporate entities in question must be treated as one employer for the purposes of the LRA. The parties disagreed about the effect of this decision. The union applied to the Board, requesting clarification. After hearing submissions from the parties on the issue, the Board agreed to clarify the decision pursuant to its powers under then s. 95(1) of the LRA [R.S.O. 1970, c. 232], which is identical to the current s. 114(1). Although the traditional prerequisites for the Board to exercise its reconsideration power were not met, the Board granted the request for two reasons. First, the proceedings had already been protracted, and it would be preferable to avoid the multiplicity of proceedings that would result from attempting to implement the decision in accordance with the union's interpretation. Second, at the time, the issue was a "matter of virtually first instance" and, as a result, there was a deart h of precedent to guide any tribunal that might be required to interpret the Board's decision. As a clarification, the Board added one sentence to its reasons, explaining the effect of its decision.

[57] The Divisional Court concluded that regardless of whether the Board's alteration was a variation or a clarification, the Board did not exceed its jurisdiction, since s. 91(12) (now s. 110(16)) gives the Board the power to determine its own practice and procedure.

[58] In my view, the clarification of the decision in Canac Shock Absorbers (Re) resulted from ambiguity, not insufficiency. Macaulay and Sprague treat ambiguities and clarifications as inseparable from the common law exception to functus of "clerical error, accidental slip or omission" on the grounds that "one [page689] assumes that the decision-maker did not want to be ambiguous": p. 27A-34.

[59] In IBEW 1739, the Divisional Court was critical of an applicant in a judicial review application who attacked the adequacy of the Board's reasons without first asking the Board for further reasons or asking for a reconsideration pursuant to s. 114(1). In that case, the Board had issued brief written reasons and stated that further reasons might follow. The vice chair also noted that he "remained seized to deal with any difficulties in implementing this award": para. 33. The union then sought judicial review on the basis of, among other things, insufficiency of reasons. The Divisional Court noted that in the interests of achieving its labour relations objectives, the Board is often required to give "bottom line" decisions and to release reasons quickly after expedited proceedings. The court also noted [at para. 83] that "where one of the parties is unsatisfied with either the result or the reasoning, it has a legislated right to ask for reconsideration as expressly contemplated in s. 114(1) of the Act".

[60] The decision in IBEW 1739 is of no assistance for the simple reason that in the instant case the Board did not remain seized to give further reasons. When an arbitrator or tribunal remains seized of an issue, the doctrine of functus officio, by definition, does not apply. Black's Law Dictionary, 7th ed., defines "functus officio" as being "without further authority or legal competence because the duties and functions of the original commission have been fully accomplished". Retaining jurisdiction over an aspect of a case is generally acceptable only where that aspect has not been fully addressed; a tribunal cannot arbitrarily reserve for itself extended jurisdiction over a completed aspect of a case. It is important to note that the inquiry as to when a tribunal has completed its commission must be contextual: "[t]he nature of the mandate of an agency is important in determining whether an agency has the authority to reserve jurisdiction on a matter in issuing a decision": Macaulay and Sprague, at p. 27A-36.

[61] In IBEW 1739, the immediate need for a resolution necessitated an expedited procedure and prompted the vice chair to reserve jurisdiction to provide fuller reasons in the future. In this case, jurisdiction to revisit the reasons was neither reserved nor warranted.

[62] While, in my view, Canac Shock Absorbers (Re) and IBEW 1739 can be distinguished on these grounds, I would add that to the extent that they can be interpreted as standing for the proposition that the Board's jurisdiction to determine its own practice and procedure is expansive enough to allow it to clarify [page690] previous decisions, they were wrongly decided. The power to control a tribunal's own procedure does not extend to post-judgment jurisdiction. Indeed, the Divisional Court, in Etobicoke (Borough) v. Etobicoke Professional Firefighters Association Local 1137 (1982), 1982 CanLII 2182 (ON SC), 37 O.R. (2d) 212, [1982] O.J. No. 3300 (Div. Ct.) cautioned against labour arbitrators reserving to themselves powers that were not clearly provided for within the relevant statutory scheme.

[63] None of the other cases relied upon by the respondents are germane to the case at bar in that they do not touch on whether "reconsideration" is broad enough to include the power to revisit the reasons separate from the decision itself.

VII. Conclusion

[64] The text of s. 114(1) allows the Board to reconsider "any decision, order, direction, declaration or ruling". In my view, this means the Board has the power to reconsider the merits of its decision, upon receiving full submissions from the parties, in accordance with its Rules of Procedure. There is no provision in the LRA that gives the Board the power to do what it did in this instance, namely, issue supplementary reasons designed to repair deficiencies in an earlier set of reasons. If the Board was to have such jurisdiction, the statute would have made it clear. Therefore, the common law doctrine of functus applies.

[65] Moreover, I cannot accept that the Board has the power to rewrite its reasons in the absence of a reconsideration on any other basis. Such a conclusion would introduce an element of unfairness to the system.

[66] First, jurisdiction to rewrite reasons in circumstances such as these would expose the losing party to new reasons without access to the procedural protections provided in the Board's Rules of Procedure.

[67] Second, it would create a problem of uncertainty. If the Board were to have ongoing authority to augment its reasons, the parties would never know when the reasons actually become final. After the second set of reasons? After the third?

[68] Third, it would allow for manipulation of the decision that is being judicially reviewed. If the reasons are inadequate, the parties will always be at odds over what reasons ought to be reviewed. The unsuccessful party will want them to remain unchanged so it can argue inadequate reasons on the judicial review. The successful party will seek to have the reasons rewritten.

[69] I return where I began -- with the observation that the Board is a creature of statute. While tribunals may be entitled to exercise certain powers to fill in gaps left by the legislators that [page691] are necessary to fulfill their mandate, that is not what happened in this case. Section 114(1) specifically addresses the issue of further reasons. Its wording and clear parameters, together with the Board's Rules of Procedure, address the policy issues upon which the IBEW relies and provides fairness to all parties.

[70] Here, the IBEW did not seek further reasons under s. 114(1) for obvious reasons. That section, as I have said, provides for a reconsideration, a process that brings the result into play -- something a successful party such as the respondent is not likely to want. IBEW wanted the Board to improve upon its reasons -- favourable in the result but deficient in their content -- to immunize them from review. That is neither provided for by the LRA, nor fair.

VIII. Disposition

[71] As Jacobs has been denied procedural fairness, I would allow the appeal and remit that matter back for a new hearing before a differently constituted Board.

[72] Upon the agreement of the parties, the IBEW will pay Jacobs its costs of this appeal in the amount of $9,500.

SIMMONS J.A. (concurring):

I. Introduction

[73] I have had the benefit of reading the reasons of my colleague Epstein J.A. I agree with my colleague's conclusion that Jacobs Catalytic Ltd. was denied procedural fairness because of the failure of a panel of the Ontario Labour Relations Board to deliver adequate reasons. Accordingly, I too would allow the appeal and send the matter back for a new hearing before a differently constituted Board.

[74] However, I reach this conclusion for somewhat different reasons than my colleague, which I will try to explain briefly.

[75] Like my colleague, I would accept Jacobs' submission that the reconsideration power contained in s. 114 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A ("LRA"), does not give the Board express statutory authority to deliver supplementary reasons for a prior decision that has not been reconsidered.

[76] However, in my view, the absence of express statutory authority does not mean that the Board lacked jurisdiction to deliver supplementary reasons. As I see it, the Board's authority to deliver reasons, whether original or supplementary, is ancillary to its power to make decisions and determinations, and does not require explicit statutory authority. [page692]

[77] Further, I am not persuaded, for several reasons, that the functus officio doctrine deprived the Board of jurisdiction to deliver supplementary reasons. Rather than a jurisdictional issue, in my opinion, the question of whether the supplementary reasons should be considered on a judicial review application is a fairness issue and is governed by the principle set out in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, [2007] S.C.J. No. 25.

[78] Applying the Teskey principle, I conclude that the Board's supplementary reasons should not have been considered on the judicial review application and that a new hearing is required because of the inadequacy of the Board's first set of reasons.

II. Background

[79] I agree generally with my colleague's summary of the facts and with her description of the decision of the Divisional Court. Accordingly, I will refer to these matters only briefly to put my reasons in context.

[80] As my colleague has explained, the proceeding before the Board arose out of a grievance by the International Brotherhood of Electrical Workers concerning which of two collective agreements governed wage rates to be paid for fire restoration work performed at a Petro-Canada plant. Following a lengthy hearing, the Board issued a two-page decision on November 15, 2006 in which it upheld the union's grievance. Later, on February 1, 2007, and in response to a request from the union for more fulsome reasons, the Board delivered re-drafted and somewhat amplified reasons consisting of about two-and-a-half pages in which it arrived at the same result.

[81] On an application for judicial review brought by the employer (Jacobs), the majority of the Divisional Court agreed that the Board's first set of reasons was inadequate but concluded that the supplementary reasons were adequate and dismissed the remaining grounds for judicial review. In doing so, the majority held that s. 114 of the LRA provided the Board with authority to issue supplementary reasons.

[82] On appeal, all parties agree that the Board's first set of reasons was inadequate. I, too, agree, essentially for the reasons expressed by the majority of the Divisional Court. However, in this court, Jacobs, supported by the General Presidents' Maintenance Committee, renews its preliminary objection that the Board lacked jurisdiction to issue supplementary reasons.

[83] In particular, Jacobs contends that the reconsideration provision contained in s. 114 of the LRA does not empower the Board to issue supplementary reasons where it has not reconsidered a prior decision and that, absent authority under that [page693] provision, the Board lacked jurisdiction to issue supplementary reasons because it was functus.

III. Discussion of Issues

(1) Interpretation of s. 114 of the LRA and the Board's power to deliver reasons

[84] As I have said, I agree that the reconsideration power contained in s. 114 of the LRA does not provide the Board with express statutory authority to deliver supplementary reasons for a prior decision that has not been reconsidered.

[85] Section 114 of the LRA is an expansive provision that describes the Board's exclusive jurisdiction and the final nature of its decisions. In addition, it gives the Board broad statutory authority to reconsider its decisions. The reconsideration provision empowers the Board to "reconsider any decision" and to "vary or revoke any such decision":

114(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. (Emphasis added)

[86] The reconsideration power contained in s. 114 makes no reference to issuing reasons, or supplementary reasons, for a decision made previously. On a plain reading of the provision, it applies only where the Board is asked, or is contemplating, changing a prior decision in some respect. As was noted by my colleague, the IBEW in this case specifically did not ask the Board to reconsider its decision. It was successful before the Board; why would it do so?

[87] However, in my view, the absence of express statutory authority to issue supplementary reasons does not mean the Board lacked jurisdiction to issue them.

[88] There was no express statutory authority for the Board to deliver its original reasons in this case; yet no one questions that the Board had jurisdiction to do so. Similarly, there is no express statutory authority for the Board to reserve the right to deliver supplementary reasons. Again, no one questions that it can do so.

[89] In my opinion, the power of a tribunal to give reasons, or supplementary reasons, is ancillary to its jurisdiction to give a decision. Moreover, in a labour relations matter such as this one, the power to give reasons is reinforced by the common law duty [page694] to give adequate reasons: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39; and Via Rail Inc. v. National Transportation Agency, 2000 CanLII 16275 (FCA), [2000] F.C.J. No. 1685, [2001] 2 F.C. 25 (C.A.).

[90] In the end, I see no basis for holding that express statutory authority is required to permit the delivery of supplementary reasons.

(2) Doctrine of functus officio

[91] The next question is whether the doctrine of functus officio applies so as to preclude the delivery of supplementary reasons in this case. In my view, it does not.

[92] It is helpful to begin the discussion of the functus officio doctrine with reference to the Supreme Court's decision in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, [1989] S.C.J. No. 102, at p. 860 S.C.R., where Sopinka J. set out the essential elements of the doctrine as well as its exceptions:

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 CanLII 1 (SCC), [1934] S.C.R. 186. (Emphasis added)

[93] However, at least three questions arise from this statement of the rule. First, given that the rule arose in civil cases, at what point does the presiding officer become functus in other types of cases? [See Note 1 below] Second, does the rule apply to reasons for [page695] decision as well as to decisions? Third, what is covered by the two exceptions? [See Note 2 below]

[94] No doubt because of the need to address the substantive issues on appeal, the parties did not address these questions in any detail. In my view, the answers to the first and second of these questions are particularly important to this appeal.

[95] Chandler provides assistance with both questions. After explaining the general rule and its exceptions, Sopinka J. discussed the application of functus officio in the administrative law context, at pp. 860-61 S.C.R. Although what follows below are some rather lengthy quotations, in my view, they are significant because they make three important points.

[96] First, provisions such as s. 114 of the LRA are designed to avoid the application of the functus officio doctrine where the legislature deems that appropriate in the context of the work of the particular administrative tribunal [at pp. 860-61 S.C.R.]:

In Grillas v. Minister of Manpower and Immigration, 1971 CanLII 3 (SCC), [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 . . . :

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. (Emphasis added)

[97] Second, the mischief at which the functus officio doctrine is primarily directed is the subsequent reconsideration of a decision that has already been made. Sopinka J. explained this in a passage immediately following the quotation set out above [at p. 861 S.C.R.]:

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 [page696] 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 the Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. (Emphasis added)

[98] Third, in relation to administrative tribunals, the functus officio doctrine should be applied in a flexible way [at p. 862 S.C.R.]:

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 . . .

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 allowed 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. (Emphasis added)

[99] In my opinion, the quotations from Chandler suggest that the finality concerns that underlie the functus officio doctrine do not support restricting a tribunal from issuing supplementary reasons, at least where the tribunal has a reconsideration power.

[100] In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, at para. 79, Iacobucci and Arbour JJ. highlighted the importance of the functus officio doctrine in promoting finality of judgments in order to set the stage for appeals:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, 1990 CanLII 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if the court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. (Emphasis added) [page697]

[101] However, where the legislature has seen fit to give an administrative tribunal a reconsideration power, the existence of that power signals that other considerations trump the importance of finality in relation to the work of the tribunal.

[102] Moreover, as was explained by the majority of the Divisional Court, at para. 50 of their reasons, concerns about efficiency and expense justify permitting the Board to deliver supplementary reasons where there is no prejudice to the parties:

From a policy perspective, it makes sense to permit the Board to issue supplemental reasons in a case like this, as the provision of such reasons may be sufficient to avoid the costs and delay associated with an application for judicial review.

[103] Although it is undoubtedly generally desirable that reasons be given before an appeal or application for judicial review is launched, unlike the absence of a decision, neither the absence of reasons nor the delivery of supplementary reasons create insurmountable problems to rights of appeal or judicial review. If that were not so, courts and tribunals would not have the power to reserve the right to deliver reasons at the time of giving a decision.

[104] In that regard, it is clear that the functus officio doctrine does not restrict the right to reserve the power to give reasons, or further reasons, after a decision is rendered and an appeal is launched: see R. v. Teskey, supra.

[105] In Teskey, the trial judge reserved the right to give written reasons after finding the accused guilty. Although Charron J., speaking for the majority, held that the written reasons should not be considered on appeal in the particular circumstances of that case, she acknowledged that it was sometimes necessary for a court to deliver reasons for a decision after the decision was made and did not question the power of a court to reserve the right to do so. I see no reason why this principle should not apply to an administrative tribunal such as the Board.

[106] If the functus officio doctrine does not restrict the right to reserve the power to give reasons after a decision is rendered and even after an appeal is launched, I fail to see what policy considerations justify interpreting the doctrine to deprive a tribunal that has a reconsideration power of jurisdiction to issue supplementary reasons just because the tribunal did not explicitly reserve the right to do so.

[107] Significantly, the result in Teskey makes it clear that appellate courts are well-positioned to guard against the risks associated with after-the-fact reasons without the need to apply the functus officio doctrine. [page698]

[108] In my opinion, the Teskey principle is a preferable tool for assessing whether supplementary reasons should be considered on judicial review as compared to the blunt instrument of a bright-line application of the functus officio doctrine.

[109] Turning to the quotation from Chandler set out at para. 25, I note that Sopinka J.'s comments are directed at the issue of reconsideration; they do not address the delivery of reasons or supplementary reasons. Accordingly, I question whether the functus officio doctrine even applies to supplementary reasons.

[110] In this regard, it is important to remember that, just as there is a distinction between a court's reasons for judgment and its judgment, there is a distinction between a tribunal's decision and its reasons for decision.

[111] In my view, s. 17(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 makes it clear that there is a distinction between a decision and the reasons for a decision in an administrative law context. More importantly, s. 17(1) demonstrates that the functus officio doctrine may not be in play.

[112] Section 17(1) of the SPPA requires that "[a] tribunal . . . give its final decision . . . in writing" and, also, that the tribunal "give reasons in writing therefor if requested by a party".

[113] On a plain reading of s. 17, there is a distinction between the decision of a tribunal and the tribunal's reasons for its decision. Accordingly, even if it is the practice of the Board to issue its decision or order and its reasons for the decision in the same document, it is necessary and important to distinguish between the two.

[114] Significantly, although a party may obviously request reasons in advance, s. 17(1) appears to contemplate reasons being given after the fact. Section 17(1) places no restrictions on a party's right to request reasons after a decision is made. As a matter of common sense, one would think that would be the more frequent use of this section. But obviously, an after-the-fact request would not be possible if the functus officio doctrine precludes absolutely the delivery of reasons after a decision has been made.

[115] Finally, given the result in Chandler, I question whether the functus officio doctrine prevents a tribunal that has delivered inadequate reasons from delivering supplementary reasons in any event.

[116] In Chandler, the tribunal exceeded its jurisdiction by making findings and issuing orders it was not authorized to make. The Supreme Court of Canada held the tribunal was entitled to continue the original proceedings in order to fulfill its proper function but on terms that the parties could call further evidence and make further submissions. [page699]

[117] Accordingly, where a tribunal fails to fulfill its common law obligation to deliver adequate reasons, why would it be precluded, under the functus officio doctrine, from completing its proper function?

[118] I turn now to the appropriateness of considering the Board's supplementary reasons on the judicial review application in light of R. v. Teskey.

(3) Application of Teskey

[119] Although I am not persuaded that the Board required express statutory authority to issue supplementary reasons in this case and although I am not persuaded that the functus doctrine precludes them, I nonetheless conclude that the circumstances under which those reasons were issued raise a concern that they may be the product of result-oriented, after- the-fact reasoning. For that reason, the supplementary reasons should not have been considered on the judicial review application.

[120] In Teskey, the majority of the Supreme Court of Canada concluded that written reasons for decision delivered more than 11 months after guilty verdicts were entered by the trial judge should not have been considered on appeal. They reached this conclusion because of the following factors, which demonstrated that a reasonable person would apprehend that the reasons constituted after-the-fact justification for the verdicts already delivered rather than an articulation of the reasons that led to the verdict: -- as evidenced by several adjournments of the decision date, the trial judge had obvious difficulty in arriving at a verdict in the months following the completion of the evidence; -- in his oral reasons, the trial judge made a "bare declaration of guilt without any indication of the underlying reasoning"; -- after concluding, in error, that he had overlooked affording the accused a right of allocution, the trial judge expressed willingness to reconsider the verdicts immediately after their announcement; -- by its nature, the evidence in the case called for a detailed consideration and analysis; -- the trial judge failed to respond to repeated requests for his reasons; -- reference in the reasons to post-verdict events; [page700] -- the 11-month delay in delivering written reasons and the absence of any explanation.

[121] Although perhaps not as egregious, in my view, several features of this case are sufficient to demonstrate that a reasonable person would believe that the Board's supplementary reasons reflect after-the-fact result-driven reasons rather than a true reflection of the reasoning process that led to the Board's decision: -- the Board's first set of reasons is conclusory and insufficient to meet the standard of adequate reasons; -- at the time of delivering its first set of reasons, the Board gave no indication of an intention to deliver supplementary reasons; -- the Board's supplementary reasons, consisting of only two- and-a-half pages and very few entirely new paragraphs, was delivered two months after the request for more fulsome reasons; -- in the words of the majority of the Divisional Court, the Board's supplementary reasons are "far from the thorough and careful reasons that are generally issued by members of this Board" -- indeed, in my view, if the Board's supplementary reasons do meet the test of adequacy, they just get over the line; -- the Board's supplementary reasons provide no explanation of why the Board considered it necessary or appropriate to issue supplementary reasons.

[122] Particularly because of the inadequacy of the Board's first set of reasons and the Board's failure to reserve the right to deliver additional reasons, an explanation was required to assuage concerns that the supplementary reasons were the product of a result-driven, after-the-fact justification process. In the absence of an explanation and taking account of all the circumstances, I conclude that the Board's supplementary reasons should not have been considered on the judicial review application.

III. Disposition

[123] Based on the foregoing reasons, I would allow the appeal and remit the matter for a new hearing before a differently constituted Board. I agree with my colleague's proposed disposition of costs.

Appeal allowed.

Notes

[See Note 1 below] The lonstanding rule in criminal jury cases was that the jury's verdict could not be corrected after the jury was discharged. In R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, the Supreme Court of Canada relaxed this rule where the error to be corrected does not require the jury to reconsider its verdicts or continue its deliberations and where an inquiry fails to disclose any reasonable apprehension of bias (or taint). At para. 48, Major J., speaking for the majority, said "the administration of justice would be brought into dispute by barring the court from correction a recorded verdict where there is no perceptible injustice to the accused and no reasonable apprehension of bias." A similar approach was adopted by this court in R. v. Malicia (2006), 2006 CanLII 31804 (ON CA), 82 O.R. (3d) 772, [2006] O.J. No. 3676 (C.A.), a criminal jury case in which a correction [was] made after the trial judge had endorsed the indictment.

[See Note 2 below] For example, see the discussion in R. v. Burke, supra, concerning the scope of the accidental slip or clerical error exception.