Gratton-Masuy Environmental Technologies Inc. (d.b.a. Ecoflo Ontario) et al. v. Building Materials Evaluation Commission

Indexed as: Gratton-Masuy Environmental Technologies Inc. v. Building Materials Evaluation Commission

60 O.R. (3d) 245

[2002] O.J. No. 4252

Court File No. 217/02

Ontario Superior Court of Justice

Divisional Court

Lane, Lax and Power JJ.

June 18, 2002

Administrative law -- Boards and tribunals -- Authority -- Judicial review -- Procedural fairness -- Building Materials Evaluation Committee of Ontario -- Express and implied authority to amend authorizations -- Board not functus officio to amend authorizations -- Board resolutions amending authorizations quashed for breach of rules of procedural fairness -- Building Code Act, S.O. 1992, c. 23, s. 28(4).

Municipal Law -- Building Code -- Building Materials Evaluation Committee of Ontario -- Express and implied authority to amend authorizations -- Board not functus officio to amend authorizations -- Board resolutions amending authorizations quashed for breach of rules of procedural fairness -- Building Code Act, S.O. 1992, c. 23, s. 28(4).

Gratton-Masuy Environmental Technologies Inc. ("Ecoflo") and Waterloo Biofilter Systems Inc. ("Waterloo") were competitors in the business of selling wastewater treatment systems using innovative technology. Each had received authorizations for their systems from the Building Materials Evaluation Commission of Ontario ("BMEC"), which under s. 28(4) of the Building Code Act had the authority to "authorize the use, subject to any conditions that may be set out, of any innovative material, system or building design". The BMEC decided on its own initiative to reconsider the authorizations, first informing Ecoflo and Waterloo that it had identified interpretation difficulties and then later advising them of a different set of proposed amendments. On February 28, 2002, by resolutions, BMEC amended the authorizations. Ecoflo and Waterloo applied for judicial review and an order setting aside the resolutions.

Held, the application for judicial review should be granted.

Only through the mechanism of conditions attached to authorizations, did BMEC have express legislative authority to review and amend a previously granted authorization. In the immediate case, this authority was not available because BMEC did not make the findings necessary to trigger the conditions it had imposed in the authorizations. BMEC also had implied legislative authority to review and amend the authorization where public health and safety concerns warrant. BMEC was, therefore, not functus officio. In exercising its authority to amend the authorizations, however, BMEC breached the rules of procedural fairness. In the circumstances of this case, BMEC's notice and disclosure were inadequate and Ecoflo and Waterloo were deprived of a meaningful opportunity to make written or oral submissions. They were denied a meaningful opportunity to respond to a situation where their rights and privileges were seriously affected. They were entitled to a full and fair hearing before their authorizations were amended. Accordingly, the application for judicial review should be granted and the resolutions dated February 28, 2002 should be quashed with the matter remitted to BMEC for rehearing on proper notice and disclosure. [page246]

APPLICATION for a judicial review.

Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, 69 B.C.L.R. 255, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35 (sub nom. Cardinal and Oswald and R., Re); Chandler v. Alberta Assn. of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, 70 Alta. L.R. (2d) 193, 62 D.L.R. (4th) 577, 99 N.R. 277, [1989] 6 W.W.R. 521; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, 46 O.R. (3d) 736, 183 D.L.R. (4th) 193, 251 N.R. 63, 49 C.C.L.T. (2d) 1, 8 M.P.L.R. (3d) 1, 1 C.L.R. (3d) 1; Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, 18 B.C.L.R. 124, 110 D.L.R. (3d) 311, 31 N.R. 214, [1980] 3 W.W.R. 125; Mousa v. Simon Fraser Health Region, 2001 BCCA 418, 39 C.E.L.R. (N.S.) 1, 154 B.C.A.C. 300, 252 W.A.C. 300 (C.A.); Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 1997 16241 (ON CA), 36 O.R. (3d) 41 (Div. Ct.); Seven-Eleven Taxi Co. Ltd. v. Brampton (City) (1975), 1975 601 (ON SC), 10 O.R. (2d) 677, 64 D.L.R. (3d) 401 (Dist. Ct.); Webb v. Ontario Housing Corp. (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257, 93 D.L.R. (3d) 187 (C.A.)

Statutes referred to Building Code Act, 1992, S.O. 1992, c. 23, ss. 28, 29 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 5.1(3), 6(1)

Rules and regulations referred to O. Reg. 403/97 ("Building Code Act, 1992"), ss. 8.7.3.2, 8.7.4.1

Authorities referred to Côté, P.-A., The Interpretation of Legislation in Canada, 3rd ed. (Toronto: Carswell, 2000) Sullivan, R., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994)

K. Scott McLean and Y. Monica Song, for applicants. Troy Harrison, for respondent.

Reasons for Decision

[1] BY THE COURT: -- Ecoflo Ontario ("Ecoflo") and Waterloo Biofilter Systems Inc. ("Waterloo") bring this application for judicial review to set aside and declare null and void the decision of the Building Materials Evaluation Commission of Ontario ("BMEC") made on February 28, 2002.

[2] The BMEC consists of 14 part-time members appointed by the Lieutenant Governor in Council. Its current members include engineers, designers, manufacturers, contractors, consultants and municipal regulatory officials. Their expertise covers all areas of the Ontario Building Code, which is a regulation under the Building Code Act, S.O. 1992, c. 23 as amended. The BMEC is mandated to authorize the use of innovative building materials in Ontario construction. [page247]

[3] Ecoflo and Waterloo are both in the business of selling on-site wastewater treatment systems. They are competitors in this market. Their product is an innovative technology which is particularly suitable for small or remote properties or those with difficult soil conditions. Although this is a more costly alternative to a conventional leaching bed system, both companies have developed a market niche due to the environmental benefits and the compactness of the systems.

[4] Conventional leaching bed systems are regulated under the Building Code. Regulatory approval for the applicants' systems was obtained pursuant to Authorizations issued by the BMEC on April 29, 1999 and amended respectively in 2000 (Ecoflo) and in 2001 (Waterloo).

[5] At its meeting on June 28, 2001, it was reported to the BMEC that a local building code enforcement agency had expressed concern about a lack of clarity as to the manner in which the installation of Waterloo's systems was permitted under the Authorizations.

[6] The BMEC decided on its own initiative, to reconsider the Authorizations of Ecoflo, Waterloo, and a third company with similar technology, and it identified a number of issues to be addressed. In July, it informed the applicants that due to "interpretation difficulties", it proposed to make certain amendments to the Authorizations and it provided the applicants with draft Authorizations containing the proposed amendments. The BMEC invited the applicants to make written submissions and to attend a BMEC meeting to discuss the proposed changes.

[7] In January 2002, the applicants were advised of a different set of proposed amendments. Revised draft Authorizations were provided and the applicants were again invited to make written submissions and attend a BMEC meeting.

[8] On February 28, 2002, the BMEC amended the Authorizations by way of two resolutions passed at its February 28, 2002 meeting. These resolutions are the decisions that are the subject of this application for judicial review.

Issues

[9] In general terms, the issues and our answers are:

Q.1. Does the BMEC have express legislative authority to review and amend a previously granted Authorization?

A. No, except through the mechanism of conditions attached to the Authorizations. [page248]

Q.2. Did the conditions of the applicants' Authorizations permit the BMEC to review and amend the Authorizations?

A. No, the BMEC did not make the finding necessary to trigger the conditions.

Q.3. Does the BMEC have implied legislative authority to review and amend the Authorization?

A. Yes, it has implied legislative authority and is not therefore, functus officio.

Q.4. Did the BMEC breach the rules of procedural fairness?

A. Yes.

Analysis

[10] The statutory mandate of the BMEC is found in s. 28(4) of the Building Code Act. It provides:

28(4) The Building Materials Evaluation Commission may,

(a) conduct or cause to be conducted research into and the examination of materials, techniques and building design for construction;

(b) upon application therefor, authorize the use, subject to any conditions that may be set out, of any innovative material, system or building design in respect of any building or part thereof; and

(c) make recommendations to the Minister respecting changes in this Act or the building code.

[11] In accordance with s. 28(4)(b) of the Act, the BMEC issued the applicants' Authorizations subject to conditions. The conditions attached to the 2000 Ecoflo Authorization are as follows:

6-B-4. The BMEC may amend or revoke this Authorization where it determines that:

(a) any change has been made to:

(i) the material, system or building design that is the subject matter of this Authorization;

(ii) the address of the applicant specified in Part 1 of this Authorization; or

(iii) the ownership of the applicant specified in Part 1 of this Authorization.

(b) the use of the material, system or building design authorized herein:

(i) does not comply with the Building Code Act, 1992 or any relevant legislation as they may be amended or re-enacted from time to time; or[page249]

(ii) provides an unsatisfactory level of performance, in situ.

(c) the Applicant, or the material, system or building design that is the subject matter of this Authorization, has failed to comply with any of the terms and conditions set out in this Authorization; or

(d) any Ontario Building Code provision relevant to this Authorization has been amended or remade,

The conditions in s. 6-B-3 of the 2001 Waterloo Authorization have slightly different wording, but the same effect.

Express legislative authority to amend or revoke

[12] The language of s. 28(4)(b) of the Building Code Act gives the BMEC the statutory authority to grant authorizations "subject to any conditions". Accordingly, the BMEC has the power to make any authorization it grants subject to conditions of amendment or revocation. It follows that the BMEC may include conditions that permit reconsideration of the authorizations it grants if it determines that they are no longer consistent with the purpose of the Act. The respondent submits that this is the effect of the conditions contained in the subject Authorizations.

[13] Both sets of conditions here are subject to a determination by the BMEC that there has been a change to the circumstances described in s. 6-B-4 of the Ecoflo Authorization and in s. 6-B-3 of the Waterloo Authorization. The conditions set out specific situations giving rise to amendment or revocation. However, the BMEC made no determination nor did it come to any conclusion that there was a change to any of the circumstances described in either Authorization. Nor could such a determination have been made as there is no evidence that any of the described circumstances had in fact occurred on or before February 28, 2002. Although the BMEC could have included conditions with broad powers to amend or [revoke], we do not agree that these conditions can be interpreted as the respondent contends. The BMEC is therefore unable to rely on the language of the conditions as statutory authority to amend the Authorizations.

Implied legislative authority

[14] The applicants rely on the decision of the Supreme Court of Canada in Chandler v. Alberta Assn. of Architects for the [^1] proposition that an administrative tribunal cannot revisit a [page250] decision except in limited circumstances, which it submits do not apply here.

[15] In Chandler, the Supreme Court considered the doctrine of functus officio in the administrative law context and concluded that it applied to proceedings of tribunals. In that case, the Practice Review Board of the Alberta Association of Architects conducted a hearing to review the practices of a firm of architects. Although the hearing was a practice review, the Review Board took disciplinary action against a firm and six architects. Subsequently, the Board notified them that it intended to continue the original hearing to consider whether a further report should be prepared for consideration by the Council of the Alberta Association of Architects and whether the matter should be reviewed to the Complaint Review Committee. The architects opposed a continuation of the proceeding on the basis the Board was functus officio.

[16] The original foundation of the rule of functus officio was based on the policy ground that favours finality of proceedings. The rule was developed with respect to formal judgments of a court whose decision was subject to a full appeal. However, in the less formal administrative law setting where decisions may be subject to either a limited or to no appeal, it was the opinion of Mr. Justice Sopinka, writing for the majority, that the application of the rule should be more flexible. He stated at p. 862 S.C.R.:

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.

[17] It follows from this that the questions we should ask ourselves are: (1) what is the function committed to the BMEC by its enabling legislation? (2) are there indications in the Building Code Act that its decisions can be reopened?

[18] The purpose of the Building Code Act is to protect the health and safety of the public. [^2] The BMEC is a specialized expert tribunal that is established under the Act to conduct [page251] research into innovative technologies, to advise the Minister on amendments to the Act, and upon application, to authorize the use of innovative technologies that would not otherwise be permitted under the Code. In view of this, the BMEC has an important administrative role as a regulator of public health and safety.

[19] The respondent submits that the BMEC is constituted as a policy making/legislative tribunal exercising powers as a surrogate of the Minister. We are urged to view the BMEC on the spectrum between political decision making and judicial decision making as "close to the extreme political/legislative end of the spectrum", see Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission) (1997), 1997 16241 (ON CA), 36 O.R. (3d) 41 at p. 47 (Div. Ct.), leave to appeal refused, September 10, 1997.

[20] The applicants submit that the BMEC has a limited two-fold advisory jurisdiction under s. 28(4)(a) and (c) and a limited adjudicative jurisdiction under s. 28(4)(b). They note that the latter jurisdiction is non-exclusive as the Minister has a parallel jurisdiction in s. 29 of the Act to approve of innovative materials, systems or building designs in other circumstances and also has broad legislative powers. We are asked to conclude that the BMEC does not fulfil a legislative or policy function in its adjudicative role and therefore has no implied statutory authority to review, reconsider and re-open a previously granted authorization.

[21] We do not view the BMEC's powers as so broadly legislative as the respondent submits, nor so narrowly adjudicative as the applicants contend. Along the spectrum, its jurisdiction falls somewhere in between.

[22] In fulfilling its adjudicative role, the BMEC must be alive to issues of public health and safety, as this is the purpose of its enabling legislation. It seems almost axiomatic that a tribunal that is concerned with innovative materials, systems, or building design must be able to respond to new information that may subsequently become available and to act on this information where the protection of public health and safety warrants. This would logically have to take place not only where it is determined that the technology is performing unsatisfactorily, but also where a potential danger to the public arises.

[23] As one of the functions of the BMEC is to authorize innovative technologies, limitations on the ability of the BMEC to amend existing authorizations would have a chilling effect on innovation. Without this jurisdiction, the BMEC would be reluctant to authorize the use of a new technology until its technical merit had been established beyond any possibility of doubt. [page252] Obviously, this would defeat the purpose of the BMEC, which is to foster innovation in building technologies in Ontario and to provide an expeditious vehicle for the approval of innovative materials, systems and designs.

[24] In Chandler, Justice Sopinka noted that a rigid and formalistic application of the rule of functus officio in the administrative law setting may be inappropriate where the decisions of the tribunal are subject to appeal only on a point of law. In this case, there is not even a limited right of appeal.

[25] In undertaking a review of the applicants' authorizations, the BMEC was motivated by the potential health and safety risks associated with the applicants' systems and the need to maintain the public health and safety objective of the Act. We do not accept the submission of the applicants that the BMEC exhausted its discretion to review a previously granted Authorization once it issued the Authorizations subject to the conditions it imposed. This is inconsistent with the BMEC's statutory mandate. We note that the courts have been reluctant to recognize that even a vested right permits the holder to act in a manner that may be contrary to public health and safety. [^3] Although the specific conditions within the Authorizations themselves do not apply to the circumstances of the case at bar, they do reflect an understanding that the decisions of the BMEC are not necessarily final.

[26] As well, the decision under consideration in Chandler arose in an adversarial discipline proceeding where there was a lis. The BMEC does not render a decision between adversarial parties and its function is inherently different. It does not hold formal hearings. Its process is interactive and iterative. Draft authorizations are forwarded for comment. An applicant is invited to attend a regularly scheduled meeting of the BMEC to discuss proposed amendments. The decisions of the BMEC are not by their nature final judgments and the applicants have acknowledged this. Before the present controversy, the BMEC had proposed on its own initiative to amend the Authorizations without any opposition from the applicants.

[27] Mr. Justice Sopinka recognized in Chandler the need to balance finality with flexibility. We also note the following comments of Professor David Mullan, a respected and learned administrative law scholar: [page253]

[T]he prohibition on reconsiderations or rehearings was in the past explained as functus officio, res judicata, or estoppel by record. However, the rule applicable to administrative authorities is much more flexible than the doctrine of functus officio in regular court proceedings. Rather, it is more a general operating principle or rebuttable presumption. Finality in administrative proceedings is in general desirable but that may have to give way to other indicators either in the statutory language, the nature of the process, or derived from the considerations of justice. [^4]

[28] Neither the purpose nor process of the BMEC commends an inflexible application of the doctrine of functus officio. We conclude that there is an implied legislative authority to reconsider its decisions where public health and safety issues warrant.

Procedural fairness

[29] The concept of a duty of fairness is eminently variable and its content is to be decided in the specific context of each case. [^5] In this case, there is a factual dispute about whether the amendments result in more onerous conditions than are imposed on conventional leaching bed systems and if they do, whether their effect is tantamount to a revocation of the Authorizations. The applicants hold valuable Authorizations already issued by the BMEC. This does not entitle them to operate in a manner that jeopardizes public health and safety. Nor does it preclude the BMEC from reviewing the Authorizations if new information raises concerns about potential health and safety issues. It does entitle the applicants to a significant degree of procedural fairness with respect to a decision of the BMEC to alter the terms and conditions of their Authorizations.

[30] Initially, the applicants were informed that the July 2001 proposed amendments were to clarify certain "interpretation difficulties" presented by the wording of the Authorizations. In response to the applicants' attempts to obtain further disclosure regarding the information upon which the amendments to the Authorizations were based, the BMEC noted in letters to the applicants dated August 30, 2001 that upon "review of the BCC decision, it was clear that some municipalities were having difficulties interpreting the existing BMEC authorizations as they pertained to septic system installations. I believe you are aware of the issues that arose at the BCC hearing." [page254]

[31] The BMEC was referring to a decision of the Building Code Commission following a hearing that took place on June 14, 2001. The hearing was scheduled to resolve a dispute that had arisen between Waterloo and a local public health department. The Building Code Commission ruling confirmed that in the case of the installation of the Waterloo system in a raised configuration, installers could appropriately cut into and modify the grade of the native soil to "engineer" the flow of effluent on the 15-metre mantle that is required in raised installations. However, the proposed July 2001 amendments increased the thickness of the permitted sand layer and imposed a new loading rate requirement in certain circumstances. The BMEC's explanation did not clarify the information upon which it was basing its decision to impose a 15-metre mantle and an associated loading rate on practically all Ecoflo and Waterloo installations in Ontario. The proceedings and ruling of the Building Code Commission appear to be unrelated to the amendments proposed by the BMEC.

[32] Subsequently, on January 31, 2002, the applicants were informed that new amendments were being considered. Without explanation, the July 2001 amendments were abandoned.

[33] The BMEC wrote to the applicants on January 31, 2002, attaching a copy of the new proposed amended Authorizations and stating that the amendments were reflective of certain provisions of the Building Code [O. Reg. 403/97] (ss. 8.7.4.1 and 8.7.3.2). However, these provisions deal with loading rates on conventional leaching bed systems. As the applicants' systems are not conventional leaching beds regulated under the Building Code, this provided no further elucidation of the evidence and reasons behind the proposed amendments.

[34] The BMEC also attached a copy of a paper authored by E.J. Tyler dealing with hydraulic rates as well as excerpts from the State of Arizona's Regulations. In the case of Waterloo, an additional document entitled "Buzzards Bay Project" dated November 1, 2001 was referred to but not provided. The Waterloo system was one of the systems examined in the "Buzzards Bay Project", but the relationship between the proposed amendments to the Authorizations and the Arizona, Tyler and Buzzards Bay documents was not explained. Nor was it explained why the Buzzards Bay document was referred to only in relation to the Waterloo Authorization, as the proposed amendments to the Ecoflo Authorization are identical.

[35] Despite several requests made by each of the applicants for further particulars as to the concerns and evidence that gave rise to the January 2002 amendments, the BMEC did not respond. It appears to have taken the position that the applicants' requests [page255] for information were disingenuous and that they were deliberately feigning ignorance of the basis for the proposed amendments. The BMEC appears to have believed that providing the documents they did and inviting the applicants to a meeting to discuss the proposed amendments was sufficient. For their part, the applicants were not prepared to attend a meeting unless and until they received appropriate information on which to base a response in order to participate in a meaningful discussion with the members of the BMEC.

[36] The BMEC provided no further information in relation to the January 2002 proposed amendments upon which the applicants might base submissions. In essence, the applicants were told no more than the fact that the BMEC intended to amend their Authorizations, what those changes would be and provided with an academic paper, a scientific report, regulations from another jurisdiction and extracts from the Building Code. They were essentially told to figure it out for themselves.

[37] The information the applicants received was not enough to explain the reasons, the concerns, or the new circumstances that gave rise to the decision. They were not provided with any other reports, memoranda, minutes of subcommittee and BMEC meetings or summaries which were used in the development of the proposed amendments. Yet, the Record of Proceedings of the BMEC shows that there were sub-committee meetings. It also shows that Dr. Arlani, a professional engineer and manager in the Ministry of Municipal Affairs and Housing, was present for the Building Code Commission hearing on June 14, 2001. He reported on the hearing to the BMEC meeting on June 28, 2001. The applicants were not provided with his comments. In the context of a written hearing, this is insufficient. [^6]

[38] In the circumstances of this case, the BMEC's notice and disclosure to the applicants were inadequate and they were deprived of a meaningful opportunity to make written or oral submissions. They were denied a meaningful opportunity to respond in a situation where their rights and privileges were being seriously affected. The applicants were entitled to a full and fair hearing before their Authorizations were amended. The BMEC's actions amount to a denial of procedural fairness. [^7] [page256]

[39] The BMEC is not an adversarial tribunal, but it is required to ensure that the applicants are provided with enough information so that they have knowledge in more than general terms about the essential issues being decided by it. The notice must be sufficient to give those whose rights may be affected knowledge of the allegations made against them, the grounds upon which it is relying in its decision, the nature of the evidence in support of the decision, and adequate time to fairness respond. [^8] The opportunity to be heard is meaningless unless information is provided upon which a meaningful response can be based. [^9] Only then are the applicants afforded a truly meaningful opportunity to respond to "the case to be met". The BMEC failed to provide enough information to make the notice meaningful and the applicants were justified in refusing to respond until this occurred.

Disposition

[40] The resolutions of the BMEC dated February 28, 2002 are therefore quashed. The matter is remitted to the BMEC for a rehearing on proper notice and disclosure.

[41] If costs are not agreed within 14 days of the release of this decision, the parties may file written submissions to the court within 30 days.

Order accordingly.

[^1]: 1989 41 (SCC), [1989] 2 S.C.R. 848 at p. 861, 62 D.L.R. (4th) 577. [^2]: Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298 at p. 317, 183 D.L.R. (4th) 193. [^3]: Mousa v. Simon Fraser Health Region (2001), 2001 BCCA 418, 39 C.E.L.R. (N.S.) 1 at paras. 16 and 39 (B.C.C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 462; P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed.) (Toronto: Carswell, 2000), pp. 160 and 174; R. Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), p. 533. [^4]: Canadian Encyclopedic Digest, 3rd ed. (Toronto: Carswell, 1995)"Administrative Law", p. 400 at para. 436. [^5]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at p. 837, 174 D.L.R. (4th) 193 at p. 211. [^6]: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 5.1(3). [^7]: Cardinal v. Director of Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643 at p. 657, 24 D.L.R. (4th) 44; Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 at p. 1113, 110 D.L.R. (3d) 311; Webb v. Ontario Housing Corp. (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257 at p. 265, 93 D.L.R. (3d) 187 (C.A.). [^8]: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 6(1); Re Seven-Eleven Taxi Co. Ltd. v. Brampton (City) (1975), 1975 601 (ON SC), 10 O.R. (2d) 677, 64 D.L.R. (3d) 401 at p. 405 (Dist. Ct.). [^9]: Pembroke Civic Hospital v. Ontario (Health Services Restructuring Commission), supra, at pp. 48-49 O.R.