registration. Typically, this communication with the administrator would be informal,
occur outside of the system and before the amendment is registered, in order to avoid the
complexities associated with routing everything through the system. In this case, I
ultimately did indicate in the conclusion of the Written Reasons that CCRL would need to
revise Amendment P-23 in accordance with my decision in the Written Reasons.
73. All of the case authorities provided by CCRL and LH on the application of functus officio to
administrative decision-makers involved very different facts from those before me on this
reconsideration decision. In our situation, the Notice of Decision consisted of only a bare
statement that I had decided to register Amendment P-23 with no reasons to support that
decision or any elaboration whatsoever. It also included an express statement that written
reasons for my decision would follow shortly. With one exception, all of the cases I have
reviewed involved a first decision with some reasons to explain the decision and the
issuance by the decision-maker of a subsequent decision, or subsequent reasons, that
expanded upon or varied the original decision or original reasons.
74. The one exception is Fédération canadienne de l'entreprise indépendante (section
Québec) c. Régie de l'énergie, 2010 QCCS 6658 () ("CFIB"), a decision of the Superior
Court of Québec. In that case, Hydro-Quebec applied to the Regie de l’energie (“Regie”), a
multifunctional regulatory body, for approval of supply agreements Hydro-Quebec
intended to enter into. The statute providing for oversight of Hydro-Quebec by the Regie
expressly required the Regie to provide reasons for its decision. The Regie ultimately
made a decision on May 26, 2008, approving the agreements. In the decision, the Regie
did not provide reasons. The Regie indicated that it was communicating its decision in
order for the parties to the agreements to rely on them for June 1, 2008, and it would set
out its reasons subsequently. The Regie issued a second decision on June 5, 2008,
apparently in response to complaints by the Quebec chapter of the Canadian Federation
of Independent Business (“QCFIB”) about the failure to provide reasons accompanying
the May 26th decision. The Regie held in that decision that it was appropriate to issue a
decision with reasons to follow. On June 12, 2008, the QCFIB applied for judicial review of
the Regie’s May 26th and June 5th decisions. On June 25, 2008, the Regie gave detailed
reasons for its May 26th decision.
75. On the judicial review application, the Court reviewed the case law on the issue of the
appropriateness of issuing a decision with reasons to follow and concluded that there is
nothing wrong in principle with the practice. The exception would be where the
circumstances would lead a reasonable person to view the subsequent reasons as a
posteriori justification rather than a statement of the reasoning that led to the decision.
The Court concluded the exception did not apply in the case before it and the fact that
the Regie issued its decision with reasons to follow did not result in non-compliance with
the Act provision requiring the Regie to give reasons for its decision. The Court then dealt
with another argument advanced by the QCFIB, namely that the Regie could not issue the
June 25th reasons as it was functus officio after making its May 26th “reasons to follow”
decision. In support of this argument, the QCFIB cited the Jacobs decision of the Ontario
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