Chandler v. Alberta association of architects, [1989] 2 S.C.R. 848 (1989)

Docket Number:19722

Chandler v. Alberta Association of Architects,

[1989] 2 S.C.R. 848

IN THE MATTER of an application for an order for prohibition;

AND IN THE MATTER of the Architects Act,

being chapter A-44.1 of the Revised Statutes of Alberta, 1980, as amended;

AND IN THE MATTER of the Practice Review Board of the Alberta Association of Architects;


Sheldon Harvey Chandler, S. H. Chandler

Architect Ltd., Gordon Gerald Kennedy,

G. G. Kennedy Architect Ltd., Brian

William Kilpatrick, Brian W. Kilpatrick

Architect Ltd., Peter Juergen Dandyk and

Peter J. Dandyk Architect Ltd. Appellants v.

Alberta Association of Architects,

the Practice Review Board of the Alberta

Association of Architects, Trevor H. Edwards,

James P. M. Waugh and Mary K. Green Respondents indexed as: chandler v. alberta association of architects

File No.: 19722.

1989: January 30; 1989: October 12.

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

on appeal from the court of appeal for alberta

Administrative law -- Boards and tribunals -- Jurisdiction -- Continuation of original proceedings -- Functus officio -- Inquiry into the practices of a firm of architects -- Board conducting a valid hearing but issuing ultra vires findings and orders -- Board's findings and orders quashed -- Board failing to consider whether it should make recommendations as required by legislation -- Whether Board empowered to continue original proceedings -- Architects Act, R.S.A. 1980, c. A-44.1, s. 39(3) -- Alberta Regulation, 175/83, s. 11(1).

Pursuant to s. 39 of the Architects Act, the Practice Review Board of the Alberta Association of Architects conducted a hearing to review the practices of a firm of architects which went bankrupt and issued a report. Although the hearing was intended to be a practice review, the Board, in its report, made 21 findings of unprofessional conduct against the firm and six of the architects, levied fines, imposed suspensions and ordered them to pay the costs of the hearing. The Court of Queen's Bench allowed appellants' application for certiorari and quashed the Board's findings and orders. The Court of Appeal upheld the decision holding that the Board lacked jurisdiction to make findings or orders relating to disciplinary matters or costs. Under s. 39(3) of the Act, the Board is simply responsible for reporting to the Council of the Alberta Association of Architects and for making appropriate recommendations.

The Board notified the appellants that it intended to continue the original hearing to consider whether a further report should be prepared for consideration by the Council and whether the matter should be referred to the Complaint Review Committee. The Court of Queen's Bench allowed appellants' application to prohibit the Board from proceeding further in the matter. The court found that the Board had completed and fulfilled its function and that it was therefore functus officio. The Court of Appeal vacated the order of prohibition. It held that s. 39(3) of the Act and s. 11(1) of the Regulations require the Board to consider whether or not to make recommendations to the Council or the Complaint Review Committee. The Board did not do so and therefore did not exhaust its jurisdiction.

Held (La Forest and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Wilson and Sopinka JJ.: The Board was not functus officio. As a general rule, once an administrative tribunal has reached a final decision in respect of 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 in drawing up the decision or there has been an error in expressing the manifest intention of the tribunal. To this extent, the principle of functus officio applies to an administrative tribunal. It is based, however, on the policy ground which favours finality of proceedings rather than on the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. Its application in respect to administrative tribunals which are subject to appeal only on a point of law must thus be more flexible and less formalistic.

Here, the Board failed to dispose of the matter before it in a manner permitted by the Act. The Board conducted a hearing into the appellants' practices but issued findings and orders that were ultra vires. The Board erroneously thought it had the power of the Complaint Review Committee and proceeded accordingly. It did not consider making recommendations as required by the Regulations and s. 39(3) of the Act. While the Board intended to make a final disposition of the matter before it, that disposition was a nullity and amounted in law to no disposition at all. In these circumstances, the Board, which conducted a valid hearing until it came to dispose of the matter, should be entitled to continue the original proceedings to consider disposition of the matter on a proper basis. On the continuation of the original proceedings, however, either party should be allowed to supplement the evidence and make further representations which are pertinent to disposition of the matter in accordance with the Act and Regulations.

Per La Forest and L'Heureux-Dubé JJ. (dissenting): When an administrative tribunal has reached its decision, it cannot afterwards, in the absence of statutory authority, alter its award except to correct clerical mistakes or errors arising from an accidental slip or omission. In this case, the Board was functus officio when it handed down its decision. Its function was completed when it rendered its final report. The fact that the original decision was wrong or made without jurisdiction is irrelevant to the issue of functus officio.

If the Board had discretion to consider making recommendations, and chose not to do so, it should be the end of the matter. There is no authority in the Act that permits the Board to change its mind on its own initiative. Furthermore, once a board acts outside its jurisdiction it should not be allowed to rectify the infirmities of its disposition according to its own predilections. Standards of consistency and finality must be preserved for the effective development of the complex administrative tribunal system in Canada. Either a Board is compelled to act in a prescribed manner, or it is prohibited from so acting. Allowing the Board to reopen the hearing, without an explicit provision in the enabling statute, would create considerable confusion in the law relating to powers of administrative tribunals to rehear or redecide matters. Finally, as a general rule, a tribunal should not be allowed to reserve the exercise of its remaining powers for a later date. The Board could not attempt to retain jurisdiction to make recommendations once it had made a final order, as the parties would never have the security of knowing that the decision rendered has finally determined their respective rights in the matter.

If the Board had a duty to consider making recommendations which it failed to fulfill, it could, depending on the circumstances of the case, be directed to review the entire matter afresh, and could be required to conduct a new hearing. Any re-examination, however, should not be construed as a "continuation of the Board's original proceedings". It would set a dangerous precedent in expanding the powers of administrative tribunals beyond the wording or intent of the enabling statute. It would also erode the protection of fairness and natural justice which is expected of administrative tribunals. In the particular circumstances of this case, a rehearing would not be appropriate.

The Court of Appeal erred in applying the principles of mandamus to the present situation.

Cases Cited

By Sopinka J.

Referred to: In re St. Nazaire Co. (1879), 12 Ch. D. 88; Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186; Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214; Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 147 D.L.R. (3d) 637; Ridge v. Baldwin, [1964] A.C. 40; Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232; Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577.

By L'Heureux-Dubé J. (dissenting)

Re V.G.M. Holdings, Ltd., [1941] 3 All E.R. 417; Re Nelsons Laundries Ltd. and Laundry, Dry Cleaning and Dye House Workers' International Union, Local No. 292 (1964), 44 D.L.R. (2d) 463; Lewis v. Grand Trunk Pacific Railway Co. (1913), 13 D.L.R. 152; M. Hodge and Sons Ltd. v. Monaghan (1983), 43 Nfld. & P.E.I.R. 162; Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214; Lodger's International Ltd. v. O'Brien (1983), 45 N.B.R. (2d) 342; Slaight Communications Inc. v. Davidson, [1985] 1 F.C. 253 (C.A.), aff'd [1989] 1 S.C.R. 1038; Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577; Cité de Jonquière v. Munger, [1964] S.C.R. 45; Re Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster (1983), 147 D.L.R. (3d) 637; Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232; Canadian Industries Ltd. v. Development Appeal Board of Edmonton (1969), 71 W.W.R. 635; Karavos v. Toronto, [1948] 3 D.L.R. 294.

Statutes and Regulations Cited

Alberta Regulation, 175/83, s. 11.

Architects Act, R.S.A. 1980, c. A-44.1, ss. 9(1)(j.1) [ad. 1981, c. 5, s. 6], 39 [am. 1981, c. 5, s. 16].

Labour Relations Code, S.A. 1988, c. L-1.2, s. 11(4).

National Telecommunications Powers and Procedures Act, R.S.C., 1985, c. N-20 [formerly National Transportation Act], s. 66.

Ontario Municipal Board Act, R.S.O. 1980, c. 347, s. 42.

Authors Cited

Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "functus...

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