Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 6834; 6836/ONHWPA
CASE NAME: 6834; 6836 v. Tarion Warranty Corporation
Appeal of a Decision of Tarion Warranty Corporation under the Ontario New Home Warranties Plan Act, R. S. O. 1990, c. O.31 to Disallow a Claim
The Appellants Appellants
-and-
Tarion Warranty Corporation Respondent
-and-
Port Union Homes Ltd. Added Party
MOTION TO REVIEW ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellants: Self-Represented
For the Respondent: Ellie Choi, Counsel
For the Added Party: Corey Libfeld, Agent
Heard in Toronto: August 28, 2014
REASONS FOR DECISION
1The Appellants bring a motion to review the order issued by this Tribunal in 6834 & 6836 v. Tarion Warranty Corporation released on November 19, 2012 ordering Tarion to carry out repairs on the Appellants’ properties. It is the position of the Appellants that Tarion has not carried out the repairs. It is Tarion’s and the Added Party’s position that they have carried out the ordered repairs and the current cause of the problems with the Appellants’ properties are unrelated to the original condition.
2The order in issue states:
The Tribunal finds as a fact that there has been water penetration of Unit 21 and Unit 23, in areas around the living room balcony doors in both units and in the Master bedroom of Unit 21. Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs Tarion to carry out the necessary steps to determine the cause of this water penetration…Tarion is further directed to ensure the necessary repairs, to correct the water penetration problems, are completed.
3The Appellants submit that the terms of the order are clear. Their complaint is that there is still water leakage in the areas identified in the order. The Appellants seek an order from the Tribunal directing Tarion to make further investigations and to fix the leakage. Tarion and the Added Party take the position that the remedy the Appellants seek is in the nature of enforcement of the Tribunal’s order. They assert that once the Tribunal has released its order it has exhausted its jurisdiction and has no further authority to deal with an issue. The Tribunal does not have authority to enforce its orders. That authority lies elsewhere. The doctrine relied on by Tarion and the Added Party bears the Latin name of functus officio.
4The doctrine of functus officio does not just apply to Tribunals. It encapsulates a policy of bringing finality to judicial or quasi-judicial proceedings. Without it, a litigant could continually return to a tribunal or court with new evidence or arguments and invite the decision maker to reconsider. Application of the doctrine has the result that, once a final decision is rendered, the role of the decision maker is fully exhausted and the decision maker cannot then revisit the same issue. It is the duty of the parties to present all of the relevant evidence and make all of the relevant submissions at the hearing instead of carrying out litigation by instalments.
5In Chandler v. Alberta Association of Architects [1989] S.C.R. 848, [1989] S.C.J. No. 102, 1989 CanLII 41, the court recognized the application of the doctrine to administrative tribunals except in cases where the enabling statute permits a tribunal to reopen a decision to carry out its statutory function. In the case of this Tribunal, the governing procedural legislation is the Statutory Powers Procedure Act R.S.O. 1990 Chap S. 22, (SPPA) and the Rules of Practice established by the Tribunal pursuant to s. 25.1 of that Act and s. 6 of Licence Appeal Tribunal Act, 1999 S.O. 1999, Chap. 12 Schedule G.
6S. 13 of the Rules of Practice addresses the Tribunal’s ability to review its decisions. The right of review is narrowly defined:
13.1 The Tribunal may at any time correct a typographical error, an error of calculation or similar error in its order or decision.
13.2 The Tribunal may at any time clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision.
7As stated in paragraph 3 above, the Appellants do not take the position that there is any misstatement or ambiguity in the original order. In fact, they assert that it is clear and they want the Tribunal to order Tarion to comply with it. Enforcement is not within the jurisdiction of the Tribunal. Rather, enforcement of the Tribunal’s orders is provided for in s. 19 of the SPPA. That being the case, the Tribunal has exhausted its jurisdiction in this matter and is functus officio.
ORDER
8The Tribunal dismisses the Appellants motion for a review of the Tribunal’s order.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Vice-Chair
Released: September 19, 2014