Friday, 26 July 2013

Functus Officio in Administrative Law

A long-running battle being waged by employees of Health Canada against their employer's drug-approval procedures gives a glimpse of the law on the reopening of administrative decisions: Chopra v. Canada (Attorney General), 2013 FC 644.
Here, the original complaint made by the employees to the Public Sector Integrity Commissioner was investigated and dismissed (though only after lengthy judicial review proceedings). A new Commissioner was appointed and conducted a review of previous investigations. A decision was made not to re-open the investigation of the applicants' complaints.

Scott J. laid out the law on the application of the functus officio principle to administrative decision-makers
[65]           Absent a legislative intent to the contrary, it is clear that an administrative tribunal may reopen a proceeding for a denial of natural justice, a jurisdictional error or a failure to address an issue fairly raised by the proceedings.

[66]           In the case at bar, the PSIC decided to have all disclosure of wrongdoing and reprisal complaint files closed between April 15, 2007 and December 19, 2010 re-examined in order to decide whether any of them should be reopened. No right of appeal exists against the PSIC’s decision to close an investigation. Neither the PSDPA nor the Public Servants Disclosure Protection Tribunal Rules of Procedure, SOR/2011-170, empowers the PSIC to reopen closed complaint files. As was noted in Kurukkal v Canada (Minister of Citizenship and Immigration), 2009 FC 695 (CanLII), 2009 FC 695 at para 60, aff’d 2010 FCA 230 (CanLII), 2010 FCA 230), legislative silence on the jurisdiction to reopen a non-adjudicative decision does not necessarily reflect Parliament’s intention to prevent it. Furthermore, the Court finds that something more than silence (i.e an express statutory intention) is required to exclude the well-recognized common law exceptions to the principle of functus officio described in Chandler, cited above [Chandler v. Alberta association of architects, [1989] 2 SCR 848]. The PSIC possesses the jurisdiction to reopen an investigation on the grounds described in Chandler.
[68]           Several of the issues identified in this passage are recognized by the case law as acceptable grounds for reopening a decision. For example, ensuring that the investigation completely addressed the issues in the original complaint falls within the “failure 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” exception from Chandler, cited above.
 In the event, though, the decision not to re-open the applicants' complaints was reasonable.

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