Judgments

[1996] 3 F.C. 20

IMM-1585-95

Ahmed Zelzle (Applicant)

v.

Minister of Citizenship and Immigration (Respondent)

Indexed as: Zelzle v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Nadon J.—Ottawa, February 5 and April 12, 1996.

Administrative law — Judicial review — CRDD decision not functus officio — Upon discovering positive notice of decision pursuant to expedited hearing process in file, Convention refugee hearing adjourned — Applicant advised positive decision administrative error — At de novo hearing, CRDD concluding first panel not reaching decision as to jurisdiction; not functus officio — Second panel having authority to consider jurisdiction issue pursuant to Immigration Act, s. 67 — Functus officio principle applied flexibly to administrative tribunals — May reopen proceedings, treat decision as nullity, reconsider matter where hearing not in accord with rules of natural justice — Outside second panel’s jurisdiction to question decision validly made in conformity with Act — Application for judicial review proper procedure to challenge such decisions.

Citizenship and Immigration — Immigration practice — At Convention refugee hearing, CRDD discovering positive decision notice in file — Decision made under expedited hearing process — Hearing adjourned — Applicant later advised positive decision result of administrative error, case to proceed de novo — Whether board exceeded jurisdiction in reviewing own decision — Positive decision in conformity with Act, reviewable only upon judicial review.

This was an application for judicial review of a May 29, 1995 interlocutory decision of the CRDD that it was not functus officio. At a November 15, 1993 hearing to determine whether the applicant was a Convention refugee, a positive notice of decision was discovered in the CRDD file. That decision had apparently been made pursuant to the expedited hearing process. The hearing was adjourned. The applicant was subsequently advised that the positive decision had been signed and left in the file as a result of an administrative error and that the case would proceed de novo. At the de novo hearing, the panel concluded that the November 15 panel had reached no final conclusion on the issue of its jurisdiction and accordingly it was not functus officio (the May 29 decision). Since the applicant had not been accorded a hearing, the entering of the November 15 panel’s decision was a denial of natural justice and the proceedings were a nullity.

The issues were whether the Board exceeded its jurisdiction when it reviewed its own decision, and whether there was a breach of natural justice which would allow the Board to review its own decision.

Held, the application should be allowed.

The May 29 panel had the authority to consider the issue of jurisdiction pursuant to Immigration Act, section 67.

While the principle of functus officio favours the finality of proceedings, it is applied flexibly to administrative tribunals. Proceedings may be reopened if justice requires it. The “breach of natural justice exception” to the principle allows an administrative tribunal to reopen proceedings where the hearing of an application was not held according to the rules of natural justice. The administrative tribunal may treat its decision as a nullity and reconsider the matter.

The Board had no jurisdiction to question a decision validly made in conformity with the Act. The positive decision was properly signed and stated that the matter had been decided “without a hearing”, which the Immigration Act authorizes the CRDD to do. That decision had apparently been made in conformity with the Act. Once a decision is rendered that on its face appears valid, the procedure for challenging it is by application for judicial review.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Convention Refugee Determination Division Rules, SOR/93-45, RR. 18(3)(b), 19, 29, 30, 31, 39.

Immigration Act, R.S.C., 1985, c. I-2, ss. 65 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 55), 67 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am. idem; S.C. 1992, c. 49, s. 57), 68.1 (as enacted idem, s. 58), 69 (as am. idem, s. 59), 69.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61), 69.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 62), 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1992, c. 49, s. 73).

CASES JUDICIALLY CONSIDERED

CONSIDERED:

Gill v. Canada (Minister of Employment and Immigration), [1987] 2 F.C. 425 (1987), 27 Admin. L.R. 257; 27 C.R.R. 235; 80 N.R. 1 (C.A.).

REFERRED TO:

M. (Q.H.) (Re), [1995] C.R.D.D. No. 81 (QL); Lugano v. Minister of Manpower and Immigration, [1977] 2 F.C. 605 (1977), 75 D.L.R. (3d) 625; 15 N.R. 254 (C.A.); Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (1990), 44 Admin. L.R. 264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.); Agbona v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 191; 21 Imm. L.R. (2d) 279 (F.C.T.D.); Camacho-Souza v. Minister of Employment and Immigration (1994), 74 F.T.R. 208 (F.C.T.D.); Chaudhry v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 104 (1994), 83 F.T.R. 81; 25 Imm. L.R. (2d) 139 (T.D.); Severud v. Canada (Employment and Immigration Commission), [1991] 2 F.C. 318 (1991), 47 Admin. L.R. 190; 91 CLLC 14,016; 127 N.R. 152 (C.A.); Woldu v. Minister of Manpower and Immigration, [1978] 2 F.C. 216 (1977), 18 N.R. 46 (C.A.); Page v. Canada (Veterans Appeal Board) (1994), 5 C.C.P.B. 75; 82 F.T.R. 115 (F.C.T.D.); Canada (Minister of Employment and Immigration) v. Nabiye, [1989] 3 F.C. 424 (1989), 8 Imm. L.R. (2d) 190; 102 N.R. 390 (C.A.); Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Posluns v. Toronto Stock Exchange et al., [1968] S.C.R. 330; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277; Grewal v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 581 (1991), 85 D.L.R. (4th) 166 (C.A.).

AUTHORS CITED

Macaulay, Robert W. and James L. H. Sprague. Hearings before Administrative Tribunals. Toronto: Carswell, 1994.

APPLICATION for judicial review of a CRDD interlocutory decision that it was not functus officio. Application allowed.

COUNSEL:

Karla D. Unger for applicant.

Brian D. Tittemore for respondent.

SOLICITORS:

Mike Bell & Associates, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Nadon J.: This is an application for judicial review by Ahmed Zelzle (the applicant) pursuant to section 82.1 of the Immigration Act (the Act)[1] of an interlocutory decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) dated 29 May 1995 [[1995] C.R.D.D. No. 81 (QL)], wherein it was determined that a previous CRDD panel had failed to render a decision, leaving the CRDD open to hear the applicant’s Convention refugee claim de novo.

The applicant seeks the following relief:

A declaration that the Convention Refugee Determination Division of the Immigration and Refugee Board has no jurisdiction in this matter, or, in the alternative, set aside the interlocutory decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated 29 May 1995 and reinstate the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated 15 November 1993.

FACTS AND BACKGROUND

This application concerns an interlocutory decision of the CRDD dated 29 May 1995 in which the CRDD (the 29 May panel) determined that it was not functus officio. The applicant made a claim for Convention refugee status on 26 November 1992. The applicant, after a number of adjournments, appeared for a hearing on 15 November 1993. At the commencement of the 15 November 1993 hearing, a positive notice of decision, duly signed and dated 10 May 1993 (the 10 May decision), was found in the CRDD file. The decision had apparently been made pursuant to the expedited hearing process. The CRDD panel at the hearing of 15 November 1993 (the 15 November panel) adjourned the matter pending an inquiry to the office of the CRDD Registrar. On 4 May 1994, counsel for the applicant received a letter from the Immigration and Refugee Board stating that the 10 May decision had been signed and left in the file as a result of an administrative error and, as such, the case would proceed de novo. At the de novo hearing on 9 January 1995, counsel for the applicant made a motion that the panel did not have the jurisdiction to hear the matter. An interlocutory decision with reasons dated 29 May 1995 was delivered to counsel for the applicant by letter dated 2 June 1995, which stated that the Board was not functus and hence had the jurisdiction to hear the applicant’s refugee claim.

DECISION UNDER REVIEW

The reasons for the decision made by the 29 May panel are concerned with two issues: the first, whether the 15 November panel made a decision with respect to its jurisdiction; and, if so, then the 29 May panel had to reopen that decision (regarding jurisdiction) “in order to examine the legal effect of the purported positive decision” dated 10 May 1993.

For ease of reference, I reproduce the text of the 10 May decision in its entirety:

CONVENTION REFUGEE DETERMINATION

DIVISION NOTICE OF DECISION

[Immigration Act, ss.69.1(9)]

                                                                 File No: T93-01640

W. Moore

Presiding Member

In the Convention refugee claim of:

Ahmed Hussein ZELZLE D.O.B. 20/04/66

This claim was determined without a hearing on the 10th day of May, 1993.

The Refugee Division determines that these [sic] claimant

IS A CONVENTION REFUGEE.

                                                                 Registrar

The 29 May panel examined the transcript of the 15 November 1993 proceedings, and noted that the refugee hearing officer, after the discovery of the 10 May decision, observed that there was no doubt to suspect that decision’s authenticity or its validity. The Presiding Member of the 15 November panel stated that he considered that the matter had already been decided (i.e. that the applicant was a Convention refugee) and that the panel had no jurisdiction to proceed “at this time”. The 29 May panel understood this to mean that the phrase “at this time” was not the language of a final decree, but of an interim step. The matter, in the view of the 29 May panel, was not fully resolved in the Presiding Member’s mind. The 29 May panel concluded that the 15 November panel reached no final conclusion on the issue of its jurisdiction and, accordingly, the CRDD was not functus officio.

The panel then considered an alternative argument, that is, if the 15 November panel had determined that it had no jurisdiction, the 29 May panel would have to reopen that decision in any event in order to examine the legal effect of the 10 May decision. In the result, the panel found that, since the applicant was accorded no natural justice in the rendering of the 15 November panel’s decision, the proceedings were a nullity. The CRDD stated that it found the ruling of the 15 November panel “fatally flawed” by virtue of, inter alia, procedural ambiguity.

In coming to this conclusion, the 29 May panel examined the power of a panel of the Convention and Refugee Determination Division to reopen a decision reached by another panel. The panel noted that it is settled law that an administrative tribunal created by statute, in the absence of express statutory authority, has no general power to set aside its own decisions.[2] The panel noted, however, that a decision may be revisited in common law where the issue which was referred to the decision-maker has not been dealt with.[3] According to the tribunal, Macaulay, in Hearings before Administrative Tribunals, notes that a decision may be re-opened where the error has affected the integrity of the decision-making process.[4] The CRDD may reopen a decision where there has been a denial of natural justice at the original hearing. This was established in Woldu,[5] as quoted in Gill,[6] where the Court held:

Notwithstanding the general principle, affirmed in the Lugano case, that an administrative tribunal does not have the power, in the absence of express statutory authority, to set aside its decision, there is judicial opinion to suggest that where a tribunal recognizes that it has failed to observe the rules of natural justice it may treat its decision as a nullity and rehear the case.[7]

The CRDD quoted my decision in Chaudhry[8] in support of the proposition that a decision may be reopened where there has been a breach of natural justice.

In the result, the 29 May panel determined that the applicant had a right to a hearing into the merits of his case which had been denied to him by the actions of the 15 November panel. The 29 May panel decided that, if the 15 November panel had reached a decision, it had failed to observe the rules of natural justice in so doing. The 29 May panel concluded [at pages 52-54 of QL]:

In making its determination it committed an egregious procedural error which deprived the claimant of the procedures created by the Act. It made its decision based on a single piece of paper whose authenticity was itself contested by an official of the Board from whose office the document emanated. The panel never concerned itself with whether the legal requirements of a domestic refugee determination under the Act—a hearing pursuant to section 69.1 or administrative positive determination in compliance with section 69.1(7.1)—had actually been complied with. The then panel’s treatment of a most serious and unusual matter, one where caution had to be exercised in the extreme, has left the claimant with his claim never heard. As a result, his status is yet undetermined, his attempt to seek landing has been thwarted.

Thus, in the alternative, if we have erred in our decision that the panel of 15 November 1993 did not rule on jurisdiction, we find their ruling fatally flawed by disregard of the statutory requisites for a domestic refugee determination, disregard for the substantial ultimate issue, and procedural ambiguity. For the reasons we have addressed above, in respect of both the substantial ultimate issue and the specific question of the status of the “Notice of Decision,” we find that the proceedings of 15 November 1993 were, if a decision were intended, so defective as to be an absolute nullity.

ISSUES

The applicant has identified two issues for determination:

1. Was the Board (the CRDD) acting within its jurisdiction when it reviewed its own decision?

2. Was there a breach of natural justice which would allow the Board to review its own decision?

STATUTORY PROVISIONS

The powers of the CRDD are set out in sections 67 [(as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 68 (as am. idem; S.C. 1992, c. 49, s. 57), 68.1 (as enacted idem, s. 58), 69 (as am. idem, s. 59), 69.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60), 69.2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 61), 69.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 62)] to 69.3 of the Act. The CRDD’s jurisdiction is set out in section 67 of the Act as follows:

67. (1) The Refugee Division has, in respect of proceedings under section 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

(2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing,

(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person’s knowledge relative to the subject-matter of the hearing and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter;

(b) administer oaths and examine any person on oath;

(c) issue commissions or requests to take evidence in Canada; and

(d) do any other thing necessary to provide a full and proper hearing.

Subsection 69.1(7.1) provides for determinations without hearings:

69.1 …

(7.1) Notwithstanding subsections (1) and (2), where the Minister does not, at any time within the period prescribed by rules made under subsection 65(1), notify the Refugee Division that the Minister intends to participate in accordance with subsection (5) at any hearing into a person’s claim to be a Convention refugee, a member of the Refugee Division may, in accordance with any rules made under paragraph 65(1)(d), determine that the person is a Convention refugee without a hearing into the matter.

The Convention Refugee Determination Division Rules[9] (the Rules) govern the CRDD’s practice and procedure. These Rules are made pursuant to the rule-making authority granted to the Chairperson of the Immigration and Refugee Board pursuant to section 65 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 55] of the Act. Any rules so made are subject to the approval of the Governor in Council. Rule 19 allows for determinations without hearings:

19. (1) Where a member receives a file pursuant to paragraph 18(3)(b),[10] the member, before determining that the person concerned is a Convention refugee without a hearing into the matter, shall verify that

(a) the Minister has not given notice of the Minister’s intention to participate at the hearing within the periods referred to in subrule 8(2); and

(b) the information with respect to the claim that is provided by the person concerned is sufficient to enable the member to determine that the person concerned is a Convention refugee, without a hearing into the matter.

(2) Where, after verification of the matters in subrule (1), a member determines that the person concerned is a Convention refugee, the member shall forthwith render the member’s decision and shall send the file to the registrar;

(3) Where a member decides that the person concerned cannot be determined to be a Convention refugee without a hearing into the matter, the member shall send the file to the registrar so that a date for a hearing may be fixed.

Rules 29 to 31 deal with decisions of the CRDD:

29. In the event of a split decision on an interlocutory matter, the presiding member shall have the deciding vote.

30. The registrar shall sign all notices of decisions of the Refugee Division and shall forthwith serve the Minister and the person concerned with a copy of all such notices.

31. A request made to the Refugee Division pursuant to paragraph 69.1(11)(b) or 69.3(7)(b) of the Act for written reasons for a decision shall be in writing and filed at the registry.

Finally, Rule 39 provides the CRDD with jurisdiction over its own procedures:

39. These Rules are not exhaustive and, where any matter that is not provided for in these Rules arises in the course of any proceeding, the Refugee Division may take whatever measures are necessary to provide for a full and proper hearing and to dispose of the matter expeditiously.

DISCUSSION

A.        APPLICANT’S POSITION

1.         Jurisdiction of the CRDD

The applicant notes that the CRDD’s jurisdiction is set out in subsection 67(1) of the Act. The Act, according to the applicant, does not expressly authorize a reconsideration of a decision of a panel of the CRDD. Once a decision on the law, facts or jurisdiction has been made, the Act provides for judicial review of that decision pursuant to subsection 82.1(1) of the Act. The applicant submits that if the CRDD is of the belief that there has been an error of fact or law in the decision or order of a panel, it cannot simply instruct the Registrar to disregard its earlier decision and set the matter down for a new hearing. The CRDD must look to what is expressly stated in its enabling legislation. The only route available in the event the Minister does not concur with the 10 May decision is to request leave to review the decision in the Federal Court.

The applicant asserts that a tribunal exercising adjudicative powers may not retry a matter after it has disposed of that matter in accordance with the governing legislation, unless it is expressly authorized to do so by that governing legislation.[11] This is the principle of functus officio.[12] Both the 15 November panel and the 29 May panel, according to the applicant, were functus officio, since a final decision had been rendered by the CRDD on 10 May 1993. Both panels were therefore without jurisdiction.

2.         Breach of natural justice

Even though the principle that a tribunal may not review its own decision unless expressly authorized by statute is well-established in law, certain exceptions to this rule have arisen in the case of administrative tribunals. The first exception to this principle occurs where the governing statute adds a non-adjudicative function to the adjudicative function.[13] The applicant submits that this exception is not applicable to the case at bar since the function of the CRDD is purely adjudicative.

A second exception to this rule arises where there has been a breach of natural justice. An administrative tribunal may declare its own decision a nullity in such a case. This exception, according to the applicant, may only be used to the benefit of the person who has been denied natural justice by the administrative tribunal, and who has been harmed by that denial. In such a case, the tribunal may cure its own defect by rehearing the claim.[14] The applicant submits that there has been no breach of natural justice that would necessitate the invocation of this second exception. Even though the applicant was not given a hearing, the 10 May decision did not result in harm being brought to the applicant. The panel of the CRDD which issued the positive notice of decision dated 10 May 1993 treated the applicant fairly, according to the applicant’s submissions. The applicant had the right to a hearing, to unbiased adjudication, to fair procedure and a reasonable opportunity to present his case.

B.        RESPONDENT’S POSITION

1.         Jurisdiction

The respondent submits that the 29 May panel did not err in determining that the 15 November panel did not make a final disposition regarding the applicant’s Convention refugee claim. The respondent observes that the evidence before the 29 May panel, which included the minutes from the 15 November 1993 hearing, indicated that the 15 November panel doubted that it had jurisdiction to hear the applicant’s claim but decided to adjourn the matter. As such, the 29 May panel, in the respondent’s submission, properly concluded that the panel on 15 November had made no conclusive decision on the issue of its jurisdiction and therefore it was not functus officio and could consider the purported decision dated 10 May 1993 and the applicant’s Convention refugee claim.

The respondent further submits that the evidence before the 29 May panel supports the findings of fact made by the CRDD in rendering its decision. In particular, the evidence supports the CRDD’s conclusions that a true decision respecting the applicant’s Convention refugee claim had not been made on 10 May 1993 or otherwise, that the 15 November panel adjourned the applicant’s hearing, and that the 29 May panel had the jurisdiction to proceed with the applicant’s claim.

2.         Breach of Natural Justice

The respondent submits that the 29 May panel did not err in finding that if the 15 November panel did finally dispose of the applicant’s claim, then the applicant was denied natural justice. The 29 May panel therefore had jurisdiction to reopen the matter. A tribunal may reopen or rehear a matter where the tribunal recognizes that it has failed in according a claimant natural justice. A tribunal may consider a previous decision a nullity and reconsider the matter if the hearing resulting in the previous decision was not held according to the rules of natural justice.[15] Given that the 29 May panel found that the notice of decision had been placed on the applicant’s file in error and that no hearing had been held into the merits of the applicant’s claim, the panel, according to the respondent, properly concluded that, if the 15 November panel disposed of the applicant’s claim, then the applicant’s Convention refugee application had never been dealt with. As a result, the 29 May panel correctly found that the applicant had been denied a fair procedure by the previous panel, in that the effect of the panel’s action was to cast the applicant into “legal limbo” regarding his status in Canada, without having had an opportunity to bring evidence and make his case.

C.        ANALYSIS

In the case at bar, it is clear that the 29 May panel had the authority to consider the issue of jurisdiction, pursuant to subsection 67(1) of the Act. The panel’s decision is somewhat confusing: the 29 May panel first concludes:

We find that the panel on 15 November 1993 made no conclusive decision. It did not reach the conclusion Counsel suggests. It reached no final conclusion on the issue of its jurisdiction. Accordingly, the CRDD is not functus officio, and can consider the purported positive decision dated 10 May 1993. (At page 13 (QL) of the CRDD’s reasons; page 14 of the applicant’s record.)

The panel then continues:

If we have erred in our interpretation of the effect of the hearing on 15 November 1993, and the panel did then determine that it had no jurisdiction, it would be necessary to reopen that decision in order to examine the legal effect of the purported positive decision dated 10 May 1993. We turn now to a consideration of the facts upon which that decision was based and our jurisdiction to review it. Because the law in regard to this jurisdiction is technical it is necessary to deal with the factual background prior to deciding whether or not we have jurisdiction to set aside the decision. With these facts in mind we will return to the question of whether or not there is jurisdiction to examine the decision and declare it null and void. (At page 13 (QL) of the CRDD’s reasons; page 14 of the applicant’s record.)

In the result, the panel finds that, since the applicant was accorded no natural justice in the rendering of the 15 November panel’s decision, the proceedings were a nullity. The CRDD states:

Thus, in the alternative, if we have erred in our decision that the panel of 15 November 1993 did not rule on jurisdiction, we find their ruling fatally flawed by disregard of the statutory requisites for a domestic refugee determination, disregard for the substantial ultimate issue, and procedural ambiguity. For the reasons we have addressed above, in respect of both the substantial ultimate issue and the specific question of the status of the “Notice of Decision”, we find that the proceedings of 15 November 1993 were, if a decision were intended, so defective as to be an absolute nullity. (At pages 53-54 (QL) of the CRDD’s reasons; page 41 of the applicant’s record.)

It is trite law that once a tribunal has rendered a final decision, that tribunal’s jurisdiction ceases and the tribunal becomes functus officio. In the case of administrative tribunals, however, Mr. Justice Sopinka of the Supreme Court of Canada observed in Chandler that “[j]ustice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal”.[16] The “breach of natural justice exception” to the principle of functus officio was established to allow an administrative tribunal to reopen proceedings where, if the hearing of an application has not been held according to the rules of natural justice, the administrative tribunal may treat its decision as a nullity and reconsider the matter.[17] The “natural justice exception” has usually been invoked by unsuccessful refugee claimants where, for example, the CRDD has failed to consider evidence of changed country conditions.[18] Neither party brought any case law to my attention in which the CRDD invoked the natural justice exception on behalf of a claimant where the claimant himself or herself did not invoke it.

The leading case on the principle of functus officio is the Supreme Court of Canada’s decision in Chandler. In Chandler, the Court reviewed the application of the principle. Sopinka J. stated:

Functus Officio

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. where there had been a slip in drawing it up, and,

2. where there was an error in expressing the manifest intention of the court.[19]

Sopinka J. went on to say that, in the case of administrative tribunals, a different rule may apply. He stated:

In Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577, Martland J., speaking for himself and Laskin J., opined that the same reasoning did not apply to the Immigration Appeal Board from which there was no appeal except on a question of law. Although this was a dissenting judgment, only Pigeon J. of the five judges who heard the case disagreed with this view. At page 589 Martland J. stated:

The same reasoning does not apply to the decisions of the Board, from which there is no appeal, save on a question of law. There is no appeal by way of a rehearing.

…

I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.[20]

Sopinka J. continued:

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.

Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task.[21]

While the principle of functus officio favours the finality of proceedings, its application is flexible in the case of administrative tribunals. Proceedings may be reopened if justice requires it. I am of the opinion that, in the instant case, the CRDD discharged the function committed to it by its enabling legislation by issuing the 10 May decision, a decision which is valid on its face.

In the case at bar, the real issue to be canvassed, in my view, is whether or not the 29 May panel erred in law by considering the 10 May decision an “administrative error”. Put another way, can the Board question or investigate the making of a decision which, on its face, appears to be valid? As noted above, the decision was properly signed, and stated that the matter was decided “without a hearing”. The governing statute enables the CRDD to make decisions without hearings. It appears that a decision in the applicant’s case was made without a hearing. A notice of decision was duly signed by the Registrar indicating that the claim was determined without a hearing on the 10th day of May 1993, and that the applicant was determined to be a Convention refugee. The 10 May decision appears to be a valid decision, made in conformity with the provisions of the Act. The 29 May panel exceeded its jurisdiction in looking beyond that decision and determining that it was an administrative error. The Board had no jurisdiction to question a decision validly made in conformity with the Act. Once a decision was made, however it was made, both the 15 November and the 29 May panels were functus officio, since a decision with respect to the applicant’s Convention refugee status had been made. If the Minister had concerns regarding the legitimacy of the 10 May decision, the proper method by which to address those concerns would have been by way of an application for judicial review of the decision. Once a decision is rendered that on its face appears valid, the procedure for challenging it is by way of an application for judicial review.

For the foregoing reasons, this application for judicial review is allowed. As the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated 29 May 1995 was made without jurisdiction regarding the applicant’s claim, the decision must be quashed.

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