Functus Officio

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Date Retrieved:	2024-04-26
CLNP Page ID:	1505
Page Categories:	Legal Principles
Citation:	Functus Officio, CLNP 1505, <https://rvt.link/9f>, retrieved on 2024-04-26
Editor:	Sharvey
Last Updated:	2023/10/31

Ramlal Hemchand v. Toronto Community Housing Corporation, 2023 ONSC 5777 (CanLII)

[13] There is no procedural unfairness arising from the LTB member realizing that he ought not have dismissed the landlord’s application on June 23, 2023, for failure to attend. The LTB member was correcting a mistake. The landlord had been notified that the hearing would be rescheduled. The landlord had not abandoned the application. The tenant would have a fresh opportunity to participate in a hearing of the landlord’s application on the rescheduled date. While the tenant may have been inconvenienced by attending at the first hearing date, it was not a breach of procedural fairness in the circumstances.

[14] The tenant suggests that he was entitled to the benefit of the error made at the first hearing, resulting in the application being dismissed. He submits that the LTB member was functus officio and therefore could not rescind the order made in error. However, the LTB member had not made a final order. On the contrary, due to the prior LTB order granting the tenant’s request to reschedule, the matter was not even properly before the LTB member on June 23, 2023. Even if the order was final, tribunals may revisit their final decisions where there has been an accidental slip or error: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at 860-861. Nor is the tenant’s appeal assisted by his reliance on res judicata and issue estoppel in the circumstances.

R. v. Malicia, 2006 CanLII 31804 (ON CA)

C. Issues

[12] There are two issues on the appeal:

(1) Was the sentencing judge functus officio and, therefore, without jurisdiction to clarify that the sentence she had imposed on the appellant was consecutive to the sentence he was already serving?

(2) If the sentencing judge was not functus officio, then did the four and a half year sentence consecutive to a three and a half year sentence already being served violate the totality principle?

D. Analysis

(1) The functus officio issue

[13] In Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, at paras. 77 and 79, Iacobucci and Arbour JJ. discussed the definition of, and rationale for, the doctrine of functus officio:

The Oxford Companion to Law (1980), at p. 508, provides the following definition:

Functus officio (having performed his function). Used of an agent who has performed his task and exhausted his authority and of an arbitrator or judge to whom further resort is incompetent, his function being exhausted. . . . . .

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.

[14] Once the doctrine of functus officio is acknowledged, the crucial question becomes: "how can we know when a judge's function is exhausted?": see Doucet-Boudreau at para. 78. In civil cases, the longstanding answer has been when the judgment is drawn up and entered: see Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186, [1934] 2 D.L.R. 239. [page777]

[15] However, the general line drawn in civil cases has not been an absolute one. There have been two exceptions, as explained by Rinfret J. in Paper Machinery at p. 188 S.C.R.:

The question really is therefore whether there is power in the court to amend a judgment which has been drawn up and entered. In such a case, the rule followed in England is, we think, -- and we see no reason why it should not be followed by this Court -- that there is no power to amend a judgment which has been drawn up and entered, except in two cases: (1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court . . .

[16] Interestingly, in criminal cases the courts, including until recently the Supreme Court of Canada, have drawn a sharper or less flexible line. Thus, in jury cases, the judge becomes functus officio when the judge discharges the jury: see R. v. Head, 1986 CanLII 8 (SCC), [1986] 2 S.C.R. 684, [1986] S.C.J. No. 76. In judge alone cases, the point of no return is after the trial judge endorses the indictment: see, for example, R. v. Roberts, [2004] B.C.J. No. 1843, 2004 BCCA 436 and R. v. J.S.P., 1997 ABCA 30 (CanLII), [1997] A.J. No. 160, 196 A.R. 151 (C.A.).

TEC-03033-20-RV-IN, RVGP 286 (ONLTB)

5. The Board issued order TEC-03033-20 on May 26, 2021. That order denied the Co-op’s request for a review. Then, on May 27, 2021, the Board issued order TEC-03033-20-RV-AM-IN which granted the preliminary review request and sent it to a hearing. These are contradictory decisions.

6. The Board may amend any of its orders on its own initiative but only if there is a clerical error to be corrected. It does not appear that there was a clerical error in this case.

7. Normally the Board is functus officio once a written decision is issued. There are exceptions. For example, when a matter is sent to a review hearing, a potential outcome is that the original order is cancelled and is replaced by a new order after a hearing de novo. Any final order may be cancelled on review.

8. Rule 26.3 of the Board’s Rules of Procedure provides that the Board may review an order on its own initiative where it considers appropriate. This is referred to as a Board-initiated review. It is the Board’s practice that a Board-initiated review be conducted by a Vice Chair. In this case, the Vice Chair who issued the review order denying the review without a hearing changed his mind and directed that the review be heard. In substance, if not in form, this was a Board-initiated review of his own decision. He essentially cancelled his own decision, which will be replaced by this decision.

9. I therefore find that the Board is not functus officio with respect to this matter.

TNL-99817-17-RV (Re), 2018 CanLII 48253 (ON LTB)

3. The Tenant submits that the Member’s decision to reconvene is unfair and discriminatory. It is not discriminatory or unfair to reconvene the hearing. The Member had not issued a final order (written) therefore he was not functus officio (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, 1989 CanLII 41 (SCC). The decision to reconvene is reasonable. When the Landlord returned to the hearing room it became apparent that the Landlord had not abandoned the application. The Landlord was likely to be granted a new hearing if she requested a review of the decision to abandon the application.

4. The Tenant submits that Member erred in proceeding with the reconvened hearing in her absence. The Member considered a medical note dropped off at the Regional Office by the Tenant’s friend 11 days before the hearing. The Member assessed the medical note and gave reasons for his decision to proceed. The Member’s decision is reasonable.

TST-64688-15-RV (Re), 2019 CanLII 87008 (ON LTB)

1. An original order issued on May 4, 2016 was reviewed by the Tenants. The request for review was granted and an interim order, TST-64688-15-RV-IN issued on January 4, 2017.

2. Member Rodrigues was seized of the hearing de novo, but became functus officio at the Board in April, 2018. The parties agreed that a new member could resume the hearing and listen to the hearing tapes of the previous testimony and that has been done.

3. The review order issued on January 4, 2018 determined the central issue of the Board’s jurisdiction and sets out the factual context for the applications.

Pacuk v Afif, 2018 CanLII 44843 (ON SCSM)

One issue before me is do I have the jurisdiction to vary my earlier decision. A significant precedent with respect to this issue is Beard Winter LLP v Shekhdar, 2015 ONSC 4517. In that decision the Divisional court judge wrote the following:

Issue 1. Did Master Short err in law by varying paragraph 111 of his April 2, 2014 Reasons for Decision with respect to the payment of the various outstanding costs orders?

[28] In my view, the Master did not have the jurisdiction to vary the earlier order for two reasons. First, I agree that he was clearly functus officio with respect to his purported variation of the April 2, 2014 order in his December 31, 2014 order. Second, the Master did not have jurisdiction to vary or amend the earlier costs orders made by superior court judges and thus, they cannot stand. I will deal with these in turn.

Functus Officio

[29] The essential elements of the doctrine of functus officio as well as its exceptions were set out by Sopinka J. in the Supreme Court of Canada’s decision in the case of Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 at page 860 as follows:

The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal 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.

[30] The fundamental policy rationale behind the functus officio doctrine is that for the due and proper administration of justice, there must be finality to a proceeding to ensure procedural fairness and the integrity of the judicial system. As was noted by the Supreme Court of Canada in the case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 S.C.R. 3:

It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal. 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 (para79).

[31] If a court is permitted to continually revisit or reconsider final orders simply because it has changed its mind or wishes to continue exercising jurisdiction over a matter, there would never be finality to a proceeding.

[32] The principle of functus officio ensures that subject to an appeal, parties are secure in their reliance on the finality of superior court decisions.

[33] Although prior case law dealing with the application of the doctrine of functus officio has generally held that in order for the doctrine to apply, the relevant order must have been “taken out” (that is to say, signed and entered), a very recent case of the Divisional Court has cast doubt on that proposition.

[34] In the case of Brown v. The Municipal Property Assessment Corp., 2014 ONSC 7137 (CanLII) the Divisional Court dealt with an appeal from an order in which the motion judge varied the terms of an earlier order that he had made in which he dismissed the plaintiff’s action. The variation permitted the plaintiff to file an amended statement of claim against the appellant only and also provided that the amended pleading was to be prepared by a lawyer. In discussing the doctrine of functus officio in the context of the original order which was never ‘taken out’, the Divisional Court noted the following at paras. 18-19:

There is one further salient fact that needs to be mentioned in order to fully understand the factual background to this matter. The order that the motion judge made on September 25, 2013 was never taken out. That is, the order was never signed and entered. If it had been, the motion judge would have been functus officio in terms of that order. He would have then been precluded from making any variations to that order except through the express authority given to a judge under the Rules of Civil Procedure. The two rules that the motion judge referred to are the principal rules that permit a judge to vary an order s/he has made after it is signed and entered. However, the motion judge, in this case, found that neither of those rules applied. Consequently, had the order been signed and entered, there would have been no authority for the motion judge to grant the relief to Mrs. Brown that he did. Rather, it appears that the motion judge relied on his inherent authority to change the order that arose from the fact that the order had not been signed and entered.

I do not believe that the motion judge had the jurisdiction to proceed in the manner that he did but, even if that jurisdiction existed, it was not properly exercised in this case. In my view, the mere fact that the technical requirements for the finality of the earlier order are missing, because the order was not signed and entered, does not permit a judge to vary that order in whatever manner s/he happens to consider to be appropriate at a later date. The principle of finality, that underlies the functus officio principle, weighs against that scope of authority and that type of alteration. Parties have a right to expect that once a matter is determined by a judge, it is over. Our rules of procedure do not envisage that parties will be allowed to reargue matters, except in very narrow circumstances.

[35] Regardless of whether a formal order was ever taken out with respect to the Master’s April 2, 2014 Reasons for Decision and regardless of whether the technical requirements of the doctrine of functus officio have been met, the plaintiff Beard Winter submits that the case law clearly establishes that Master Short only had the jurisdiction to vary the terms of those reasons in two limited circumstances: to correct a technical error (e.g. a type-o or an arithmetic error) or to avoid a miscarriage of justice.

[36] The same conclusion was reached by the Divisional Court in the Brown case, supra, at paras. 20-22, wherein on that issue, the Divisional Court held the following:

I acknowledge that there is a fairly broad power, in a judge, to change an order after it has been announced but before it has been signed and entered. Any such change should only be made, however, if it is either technical (e.g. to correct an arithmetic error) or it is necessary to avoid a miscarriage of justice: Clayton v. British American Securities Ltd., 1934 CanLII 229 (BC CA), [1935] 1 D.L.R. 432 (B.C.C.A.) at pp. 440-441. Even then, if a change is to be made, it must be fully explained to ensure that the authority is not abused. The concern that arises from changes being made by a judge to an order, that has already been pronounced, has been expressed in other cases. For example, in Montague v. Bank of Nova Scotia (2004) 2004 CanLII 27211 (ON CA), CanLII 27211 (ON CA), 69 O.R. (3d) 87 (C.A.), Goudge J.A. said that, notwithstanding the very wide discretion a judge has to change his or her judgment before it is entered, that discretion had to be exercised cautiously and for very good reasons. He commented, at para. 40:

Any change to a judgment once given, no matter how soundly based, runs the risk of evoking suspicions of abuse on the part of those adversely affected. It is at the least disquieting, and to that extent can put a cloud over the administration of justice. A judge exercising this discretion bears a significant onus to explain the change.

The onus on a judge to clearly explain the basis for a change to an order already given was repeated in 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125 (CanLII), [2014] O.J. No. 697 (C.A.) where Gillese J.A. said, at para. 73:

A clear explanation for the change to the order was required so that the parties, and this court on review, could know the reason for the change. It was an error to fail to give that explanation.

In addition to these principles, it is also clear that the discretion to re-open a matter is one that should be resorted to “sparingly and with the greatest care”: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983 at para. 61; Clayton v. British American Securities Ltd. at p. 440.

[37] This decision in my view illustrates the rationale behind the functus officio principle. Beard Winter had brought a motion to strike Mr. Shekhdar’s defence in the 2007 action on the basis of non-payment of costs awards. It was unsuccessful in obtaining this relief, but it did obtain an order that the costs would be payable upon the “final determination” of the claims asserted in its 2007 action (the Fee Recovery Action). Clearly, Beard Winter determined that a motion to discontinue was a sensible course to take and did so in part in reliance on the April order that provided that the costs would be payable upon such discontinuance as a “final determination.”

[38] The essence of Mr. Shekhdar’s submissions on the Beard Winter appeal reflected his grounds of appeal in his own appeal: that the Master should not have discontinued the Beard Winter action to begin with. He noted repeatedly that the Master had been assuming that the matter would be going to trial, as had all the parties themselves until fairly recently. This was not a basis that could have justified refusing the motion to discontinue. While prejudice to the parties is a consideration in a motion to discontinue, there was no prejudice against him resulting from the dismissal as he was no longer in any jeopardy of paying the fees sought in the Fee Recovery Action: see Simanic v. Ross, 2004 CanLII 66337 (ON SC), 71 OR (3d) 161 (2004) (ONSC). In addition, his Negligence Action remains. is, however, no basis to such an argument and the Master did not err in granting leave to discontinue.

[39] It may well be, however, that the Master varied the costs order in his December reasons to reflect the fact that he had not, in making his order in April 2014, anticipated that this matter, which had been so hard fought for so long, would be discontinued. That does not change the fact that the costs order was made and the parties were entitled to rely on it, particularly in the absence of any notice that the Master was inclined to make a different order as a term of the discontinuance. Neither party appealed the order.

In the circumstances of this case my final order was made, it is my conclusion that I have no authority and no basis for my reopening the decision. There was no mathematical error or technical error and thus the Functus Officio principle prohibits me from varying my order

References