COURT FILE NO.: 513/07

DATE: 20090707

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Jennings, PARDU AND KARAKATSANIS JJ.

B E T W E E N:

CANADIAN COLLEGE OF BUSINESS AND COMPUTERS INC. and PANNISHELVAN (SHELVAN) KANNUTHURAI

Appellants

• and -

SUPERINTENDENT, UNDER THE PRIVATE CAREER COLLEGES ACT

Respondent

Julian Falconer, Sunil Mathai, for the Appellants

Fateh Salim, for the Respondent

HEARD at Toronto: May 26, 2009

KARAKATSANIS J.:

1This is an appeal of a decision of the Licence Appeal Tribunal (the Tribunal), made pursuant to the Private Career Colleges Act, R.S.O. 1990, c. P.26 (the Act) on September 28, 2007, which upheld the proposal of the Superintendent to revoke the registration of the Appellant, Canadian College of Business and Computers (CCBC).

2The appellant, CCBC, asks this court to quash the decision and to send the matter back for a re-hearing. Section 11 of the Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sch. G provides a right of appeal to the Divisional Court.

3The appellant, CCBC, submits that the adjudicator’s comments and questions created a reasonable apprehension of bias that she had pre-judged the honesty and integrity of Shelvan Kannuthurai, the owner and principle officer of CCBC. In addition, CCBC argues that missing portions of the transcript prejudice it in pursuing its appeal.

4The Superintendant submits that there is no reasonable apprehension of bias or breach of the rules of procedural fairness. She argues that the comments of the Tribunal, viewed in the context of the 25 hearing days, and against the conduct of this unrepresented litigant, demonstrate that the Tribunal was neither biased nor did she prejudge the issues.

Overview

5The appellant, CCBC, a private career college, operated under the authority of the Act between October 1996 and January 2006. Shelvan Kannuthurai was its Director and President.

6In January 2006, the Superintendent served CCBC with a proposal to revoke its registration as a private career college and immediately suspended its registration pursuant to section 7(9) of the Act. This proposal was based on three grounds:

(a) CCBC’s financial position raised concerns of whether CCBC could be expected to be financially responsible;

(b) The quality of CCBC’s vocational programs; and

(c) The conduct of CCBC and Mr. Kannuthurai gave reasonable grounds to believe that CCBC operations would not be carried out in accordance with the law and with integrity and honesty.

7As a result of the Superintendent’s proposal and immediate suspension, the Appellant commenced an appeal to the Tribunal pursuant to section 7(2) of the Act.

8The hearing took place over 25 hearing days between September 2006 and July 2007. Mr. Kannuthurai represented CCBC. He was obviously a very challenging and difficult self-represented litigant and the manner in which he conducted CCBC’s case inordinately extended the time required to hear the appeal.

9The allegations against CCBC were serious. The Tribunal found that there was overwhelming evidence to support several of the Superintendent’s claims, including that: CCBC owed refunds to 116 students from 13 different countries for a total of over half a million dollars; CCBC had misrepresented to the Superintendent that it had issued refunds to the students; some of the refund cheques were not honoured because there were insufficient funds; CCBC was a corporation that was rated as the “Highest Credit Risk” and had exaggerated the value of its assets; CCBC employed an unqualified instructor; CCBC failed to pay rent for the premises and was locked-out by the landlord resulting in disruption to student programs; and CCBC subsequently conducted its operations in a building that did not meet Ontario Fire Code requirements for a period of nearly four months. CCBC had clearly encountered financial difficulties and Mr. Kannuthurai was accepting tuition fees from foreign students that he could not repay when they were denied student visas and that exceeded the value of his bond. The decision itself was amply supported by the evidence and was not seriously challenged by counsel.

10The Tribunal concluded that CCBC’s past conduct, and its egregious failure to refund money owed to vulnerable students from poor, developing countries, established reasonable grounds that CCBC could not be reasonably expected to be financially responsible and would not act in accordance with the law and with honesty and integrity. The Tribunal ordered the Superintendent to proceed with the proposal and revoke the registration of CCBC and awarded costs in the amount of $20,000 ($800/day) to the Superintendant, the maximum allowable under the Tribunal’s Rules of Practice.

Reasonable Apprehension of Bias

11Where a tribunal’s decision is attacked on the basis of a denial of natural justice, it is not necessary for the Court to engage in an assessment of the standard of review. See: London (City) v. Ayerswood Development Corp. (2002) 2002 3225 (ON CA), 167 O.A.C. 120 at para. 10 (C.A.); Gismondi v. Ontario (Human Rights Commission) (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62 at para. 16 (Div. Ct.).

12The duty of fairness has been recognized in our courts as a flexible duty that may vary, based on all of the circumstances. It is an essential component of procedural fairness that the decision is made by an impartial adjudicator free from a reasonable apprehension of bias.

13The test for apprehension of bias which governs in Canadian courts was articulated by de Grandpré J. Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at p. 394 as follows:

The apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information ... that test is ‘what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?’

14In R. V. R.D.S. 1997 324 (SCC), [1997] 3 S.C.R. 484, at paras. 32 and 114, the Supreme Court of Canada confirmed that the reasonable apprehension of bias test will depend on the facts and noted that the presumption of impartiality on the part of decision-makers carried considerable weight.

15CCBC relies on five different instances of intervention by the adjudicator as grounds for creating a reasonable apprehension of bias:

1. Pre-determination that each student was entitled to a refund (Transcript: Sept 6, 2008 pp. 111-113);

2. Pre-determination of the Act’s applicability to fees that Mr. Kannuthurai claimed were application fees rather than tuition fees by the adjudicator’s statement that she was “amazed” that he would make such an argument (Transcript: November 27, 2006 p. 16);

3. Pre-determination of a teacher’s ineligibility to teach by suggesting that an attached résumé was not part of the form (Transcript: June 19, 2007 pp.46-48; Transcript: June 25, 2007 pp. 82-84);

4. Pre-determination of credibility by stating that Mr. Kannuthurai was “misleading the tribunal” during a lengthy questioning of him during his examination of the Superintendent (Transcript: June 19, 2007 pp. 30-41);

5. Improper questioning of Mr. Kannuthurai’s involvement with a terrorist organization (Transcript: June 27, 2007 pp. 17-21; Transcript: June 28, 2008 pp. 36-38).

16CCBC submits that these are examples of undue and one-sided interventions of Mr. Kannuthurai during his examination of witnesses.

17The respondent submits that the adjudicator was even-handed in her interventions. Counsel submits that her comments may have been unfortunate, but in the overall context of the proceedings they were intended to assist the unrepresented litigant in clarifying his position in the litigation, and to ensure that the litigation flowed smoothly and without delay. Finally, the respondent submits that a party who apprehends bias is obligated to raise the allegation at the earliest practicable opportunity and failure to do so will amount to a waiver of the right to make the allegation (R v. Curragh Inc., 1997 381 (SCC), [1997] 1 S.C.R. 537). Since some of the comments referred to by the appellant were made at the initial stages of the hearings in September 2006, the appellant ought to have raised the allegations at that time and cannot wait to see if the outcome is unfavourable before raising them.

Analysis

18Frequent interruptions by an adjudicator Tribunal during the appellant’s questioning are to be expected in administrative tribunal hearings and they do not necessarily give rise to an apprehension of bias. An adjudicator is entitled to intervene to clarify the evidence and has a responsibility to assist self-represented litigants by bringing rules of evidence and procedure to their attention. This Court has recognized that administrative tribunals are intended to be less formal and are entitled to be more active when inquiring about matters in order to clarify issues and make informed decisions (Toronto (City) v. Ng [2007] O.J. No. 1127 (Div. Ct.), at para. 19).

19Even if a comment appears unfortunate, it must be examined in context, through the eyes of the reasonable and informed person who is taken to know all of the relevant circumstances of the case, including the presumption of judicial integrity: R v R.D.S., at para. 134.

20Furthermore, we recognize that this was a lengthy hearing with a difficult and challenging self-represented litigant. The hearing took place over 25 hearing days spanning a ten month period. Mr. Kannuthurai made frequent requests for disclosure, refused to accept service of documents, conducted lengthy examinations of witnesses and attempted to lead irrelevant evidence. He was at times evasive and alleged numerous conspiracy theories and raised unmeritorious defences. The adjudicator found that he had protracted the proceedings that had been estimated to take 5 days (with counsel) and awarded the maximum costs against CCBC.

21With respect to the first ground relied upon, we do not accept that the adjudicator pre-determined that each student was entitled to a refund; the comments cited related to the adjudicator’s decision to highlight some of the files but all the files were entered as exhibits. The reasons for decision indicate that the adjudicator reviewed each of the files.

22Similarly, the second ground relied upon does not, in our view, suggest pre-judgment of the case. The adjudicator’s suggestion that she was “amazed” that CCBC would argue that the fees were application fees, rather than tuition fees, and thus not subject to the Act, does not in our view suggest that she had predetermined that Mr. Kannuthurai was not credible and that his arguments would be without merit. This particular defence appeared to be without merit and the adjudicator was entitled to give the self-represented litigant guidance in this respect in order to control the process before her.

23The exchanges in the third area relied upon, relating to the teacher’s qualifications, are unfortunate in that they go beyond clarification and appear to challenge both Mr. Kannuthurai, and his witness, Mr. Rajnauth, who provided evidence supporting CCBC’s position. The adjudicator appeared to have formed a view that the résumé was inaccurate and that it should not be considered as part of the form to which it was attached; the questioning appears designed to support that view. The issue of the teacher’s eligibility to teach, although not nearly as significant as the other issues before the Tribunal, related to one of the grounds of the proposal to revoke the licence. However, we would not hold that the questioning rises to the level of creating a reasonable apprehension of bias on the appeal.

24The adjudicator’s comment, as noted in the fourth ground, that the Appellant was “misleading the Tribunal” is more troubling in its particular context. It may suggest that the Tribunal had prejudged the issue of the appellant’s credibility prior to reaching a decision on the appeal, especially since it was made during a lengthy one-sided questioning of Mr. Kannuthurai as he was examining the Superintendant. Such an open disbelief by the adjudicator in front of a key witness undermined Mr. Kannuthurai’s ability to examine that witness.

25Furthermore, while the adjudicator’s questions regarding Mr. Kannuthurai’s links to a terrorist organization were justified on June 27, 2007, her ‘cross-examination’ of him on that same issue on June 28, the following day, was entirely inappropriate and improper.

26The adjudicator’s questions on June 27 regarding Mr. Kannuthurai’s links to a terrorist organization may be characterized as an attempt to clarify a suggestion that Mr. Kannuthurai first raised himself. He explained that he was detained in Sri Lanka for 25 days. The adjudicator asked him why he had been detained and he advised that he was suspected of being a terrorist; the adjudicator then asked him if he was ever associated with the Tamil Tigers, to which he replied no. These comments appear to have been intended to clarify Mr. Kannuthurai’s evidence. Later that day, he advised that he believed that the RCMP, and perhaps CSIS, was following him. The adjudicator asked him if he thought they still considered him to be a Tamil Tiger; he replied that he could not know what they consider (Transcript: June 27 pp.17-21 and 58-64). While the adjudicator intervened frequently and at length, and the question of whether he was a Canadian citizen appears to have no relevance, I am satisfied that the questions were enquiries to clarify evidence raised by CCBC and do not give rise to a reasonable apprehension of bias on June 27.

27However, the questions on the next day are different in nature. On June 28, 2007 (pp. 28-29), the adjudicator asked Mr. Kannuthurai why he had focused on students from Africa and not his native Sri Lanka (although the relevance of that question also appears unclear). Mr. Kannuthurai replied that he had tried to reach out to his Sri Lankan community:

You know my community well, so when you try to reach out to them and you are interfering with the Tigers’ agenda, and from the, from the Tigers’ perspective, you’re making, you’re doing things that you have to have their blessings to do anything. From the Sri Lankan perspective, you’re a Tamil, therefore you’re a Tiger. And from the government of Canada’s perspective, if you’re trying to help the Tamils or the Sinhalese then you have, what’s in it for you?

So, so this is, you know, you’re wheeled by three different authorities with some agenda. So it’s best to walk away sometimes, and sometimes you can build your own credibility elsewhere....

28The adjudicator returned to the issue after Mr Kannuthurai commented that he had been working with the Ontario government department for more than 20 years (Transcript: June 28, pp. 38-40):

CHAIR: And I would like to ask you one thing.

MR. KANNUTHURAI: Yes.

CHAIR: Is there any information on you and any dealings of you with the Tamil Tigers in Canada?

MR. KANNUTHURAI: Not at all. Not at all.

CHAIR: But yet you were detained by the authorities in Sri Lanka for a period of 25 days.

MR. KANNUTHURAI: Yes

CHAIR: On the basis of what?

MR. KANNUTHURAI: Suspect. Everybody is, if you are a Sikh, you in Khalstan –

CHAIR: Not any more, sir

MR. KANNUTHURAI: Not any more. But there was a time, if you’re Irish, you’re in IRA.

CHAIR: Have you ever supported the Tamil Tigers?

MR. KANNUTHURAI: Not at all, I was the last person they would ever, I would ever support, I don’t –

CHAIR: Do you have membership with the organization?

MR. KANNUTHURAI: No, Madam Chair. I adhere to non-violence.

CHAIR: Okay. All right.

MR. KANNUTHURAI: And –

CHAIR: Okay. All right. Those are all my ---

MS GHANDI: Madam Chair, I just wanted to say for the record that those, those are not our concerns. We’re not dealing with that at all.

CHAIR: Yes. Yes, I know. But the, the thing is that, Ms. Ghandi, as this applicant is alleging a lot of things, that all this happened because there was somebody out there to, to get him. And the tribunal has to know, is there something, as he mentioned yesterday, he is being stalked, you know, he is being followed around by the, by our authorities.

MS GHANDI: Right.

CHAIR: So the tribunal has one.

MS GHANDI: You’re just exploring his conspiracy theory.

CHAIR: Absolutely. Absolutely.

MS GHANDI: I see.

CHAIR: You know, that, why the people were out to get him, is there anything more, you know?

29While the adjudicator may well have been motivated to make such enquiries as a result of Mr. Kannuthurai’s conspiracy theories, a reasonable, well-informed person would likely have concluded that the persistent questions reflected the adjudicator’s concerns about the reasons for his detention in Sri Lanka and reflected her uncertainty about the truth of his answer on the preceding day. The adjudicator introduced the question of why Mr. Kannuthurai had focussed on African communities and not his own Sri Lankan community. Nothing in his evidence justified cross-examination of Mr. Kannuthurai in this manner. After receiving his answer that he had no such ties on June 27, 2007, her unprompted questions the next day about his association with a terrorist organization, could reasonably suggest that she did not believe him.

30In most respects, the adjudicator afforded Mr. Kannuthurai a generous and fair opportunity to present his case and was obviously at pains to assist an unrepresented party. Perhaps the comments of June 19, 2007 and June 28, 2007, if taken separately and in isolation, would not have been sufficient in the context of this difficult 25 day hearing, to raise a reasonable apprehension of bias. However, the adjudicator intervened frequently and at length, including during Mr. Kannuthurai’s examination of witnesses. We have concluded that the interventions on June 19 and June 28, 2007 taken together in the context of these proceedings as a whole, give rise to a reasonable apprehension of bias.

31These comments cannot fairly be characterized as the adjudicator’s attempt to clarify the evidence or to bring rules of evidence and procedure to the attention of a self-represented litigant. The adjudicator told Mr. Kannuthurai that he was misleading the Tribunal in the course of her lengthy questioning of Mr. Kannuthurai during his examination of a key witness; she cross-examined him about his possible ties to a terrorist organization despite his evidence that he did not have any such ties and despite the fact that this was not a basis of the proposal to revoke his licence. The comments and questions were irrelevant, inappropriate and improper in this context. An informed and reasonable observer would likely conclude that the adjudicator had pre-judged Mr. Kannuthurai’s credibility. His honesty and integrity were central to the issue before her. A reasonable person may have concluded that the Tribunal had already determined that Mr. Kannuthurai would not operate CCBC in accordance with the law, with integrity and with honesty.

32The fact that the adjudicator also intervened extensively at times during the Superintendant’s case does not negate the nature of the comments or questions that raise an apprehension of bias.

33Finally, we find no merit in the submission that Mr. Kannuthurai waived his right to allege bias by failing to raise the allegation at the earliest practicable opportunity. While as a general rule bias allegations should be made directly and promptly, the most egregious comments arose on the twenty third day of a twenty five day hearing. His failure to raise concerns about comments made so late in the hearing does not reflect adversely on the genuineness of the apprehension of bias in these circumstances. The litigant was self-represented and there is no suggestion that he held back as a tactic or to avoid an explanation by the adjudicator. As well, given that the allegations arise solely from the record, a decision of the adjudicator on this issue would not shed additional light on the facts that form the basis of the allegations.

34Although there are some missing portions of the transcripts, mostly in relation to submissions, there are eight volumes of transcript filed and the record is sufficient to permit the court to consider the merits of this application and an appeal. As well, the Tribunal issued a detailed 24 page decision outlining the evidence. Furthermore, there was no specific suggestion about a significant omission or that the appellant was prejudiced. We do not give effect to this ground in the application.

35We are obviously concerned about the demands on scarce adjudicative resources that will be made by referring this matter back to be re-heard, as well as the financial demands this will place upon the parties. As we have said, the Superintendent’s case was very strong. In our opinion the appellant has established a reasonable apprehension of bias. That finding on its own constitutes a miscarriage of justice and trumps any probability that the result of a re-hearing will be the same. The reasonable apprehension of bias means that the appellant was denied the procedural fairness to which it was entitled. If CCBC wishes a re-hearing, it should have it.

36For these reasons, the appeal is allowed, the decision is set aside and the matter is sent back to be re-heard by the Tribunal. We do not find this to be an appropriate case for costs. The Respondent did not cause the problem and indeed counsel made efforts to distance herself from the comments of the adjudicator on the record at the time. Particularly given the strength of this case, we do not feel that costs are appropriate in the circumstances of this case.

Karakatsanis J.

Jennings J.

Pardu J.