Court File and Parties

CITATION: Hu v. Canadore College of Applied Arts and Technology, 2016 ONSC 7430

DIVISIONAL COURT FILE NO.: 62/14

DATE: 20161130

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Hu v. Canadore College of Applied Arts and Technology

BEFORE: Justices Swinton, C. Horkins and Emery, JJ.

COUNSEL: Glenroy Bastien, for the Applicant Craig R. Lawrence, for the Respondent

HEARD AT TORONTO: November 28, 2016

E N D O R S E M E N T

The Court:

[1] The applicant seeks judicial review of two decisions of the respondent, Canadore College of Applied Arts and Technology, dated February 11, 2010 and February 28, 2011. The second decision extended the initial Notice of Trespass for two years. It barred the applicant from the College unless he met three conditions: providing a psychological assessment showing that he did not provide a threat to staff or students, that he agree to comply with the College’s policy on creating a respectful student community, and that he undergo counselling.

[2] The application for judicial review was launched on February 7, 2014, almost three years after the second Notice. The College submits that the application for judicial review should be dismissed for delay. In the alternative, it argues that the applicant’s right to procedural fairness has been respected by the College.

[3] Judicial review is a discretionary remedy, and the courts have dismissed applications for delay. When doing so, the court considers the length of the delay, whether there is a reasonable explanation for the delay, and whether prejudice has been suffered by the respondent or a third party because of the delay (Gigliotti v. Conseil d’administration du Collège des Grands Lacs, 2005 23326 (Div. Ct.) at para. 28).

[4] In the present case, the delay of almost three years in bringing the application for judicial review is lengthy. The application was not perfected until March 2015, and the application was not heard until late November 2016.

[5] No reason or evidence has been provided to explain the delay. The applicant was in receipt of complete disclosure of the documents in the College’s possession in 2012.

[6] There is inevitably prejudice to the College because of the delay. The memories of the actors involved will have faded, since the incidents underlying the application began in the 2009-10 academic year. President Taylor, a key participant, has been retired for a number of years.

[7] Furthermore, it appears that the Notice of Trespass issued in 2011 has expired, as the letter sent to the applicant informing him of the Notice stated that the Notice would be effective for two years.

[8] The conditions set out in that letter governing the applicant’s readmission appear to be reasonable, although it is unclear whether those conditions are still in force. In any event, it appears that the applicant has taken no steps to comply with the conditions or to engage in a dialogue with the College about readmission, as the letter seems to invite him to do.

[9] In these circumstances, the application for judicial review is dismissed because of delay.

Costs of the application to the respondent are fixed at $5,000.00 all in.

Swinton J.

C. Horkins J.

Emery J.

Released: November 30, 2016