2018 ONSC 673
DIVISIONAL COURT FILE NO.: 440/17 DATE: 20180201
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Varpio, Myers JJ.
BETWEEN:
SONI SANGAR
Applicant
– and –
SUPERINTENDENT, PRIVATE CAREER COLLEGES
Respondent
Soni Sangar, appearing in person
Rodney Kort, for the Respondent
HEARD at Toronto: January 25, 2018
C. hORKINS J.
overview
[1] The applicant was a student at APLUS Institute (“APLUS”) and was enrolled in a Dental Hygiene Program. APLUS is a private career college that operates under the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L (the “Act”).
[2] On October 26, 2016, the applicant was expelled from APLUS because of inappropriate behaviour. Specifically, APLUS found that the applicant had stolen a power toothbrush. APLUS advised the applicant of the evidence that was relied upon to conclude that theft had occurred.
[3] The theft complaint against the applicant was initially made orally and then confirmed in writing. The applicant was notified of the oral complaint and given a copy when the complaint was confirmed in writing.
[4] The APLUS “Dental Hygiene Program Orientation Handbook” states that a student may be “subject to expulsion at the discretion of the APLUS Institute for academic dishonesty or inappropriate behaviour”. The “Student Expulsion Policy Guide” defines inappropriate behaviour to include “theft”.
[5] The Handbook states that the student has a right of appeal from this expulsion decision. The appeal is to the Appeals Committee of APLUS.
[6] On November 4, 2016, the applicant sent APLUS a letter of appeal. In this letter, she states that she disagrees with the expulsion decision. The letter explains the basis for her appeal. First, she states that she was given no explanation for the expulsion decision. Second, she states that she was not provided with “any evidence” implicating her in any wrongdoing. Third, she states that APLUS made “a spectacle of the situation before there was any actual investigation and academic action”.
[7] On November 17, 2016, APLUS convened an ad-hoc Appeals Committee Meeting. The Minutes of Hearing confirm that the Appeals Committee reviewed the evidence and the process that led to the expulsion. The Appeals Committee concluded that “[a]ll procedures were followed and procedural fairness is evident”. As a result, the Appeals Committee denied the appeal.
[8] On December 9, 2016, the applicant filed a Student Complaint Form with the respondent. This complaint was made pursuant to s. 36(2) of Ontario Regulation 415/06 ("O. Reg. 415/06"), under the Act.
[9] Section 31 of the Act states that every private career college shall establish a procedure to resolve student complaints. Section 36(1) of the regulation sets out what the student complaint procedure shall include.
[10] If the student is not satisfied with the outcome of the complaint with the private career college, s. 36(2) of the regulation allows the student to refer the matter to the Superintendent. It states as follows:
(2) If a student is not satisfied with a private career college’s resolution of his or her complaint in accordance with the procedure set out in subsection (1), the student may refer the matter to the Superintendent and shall include in his or her application to the Superintendent a copy of the record referred to in clause (1) (h).
[11] This is the only section in the regulation that deals with the referral of a complaint to the Superintendent. There is nothing in the Act that speaks about the referral.
[12] The scope of the referral is limited by the language of s. 36(2). It deals only with whether the complaint in issue was resolved in accordance with the procedure to resolve student complaints.
[13] Page 1 of the Student Complaint Form describes the scope of the Superintendent's role in reviewing student complaints as follows:
The Ministry will review and investigate your complaint in the context of determining whether a private career college is in compliance with the Private Career Colleges Act, 2005 and regulations made under the Act.
[14] Page 2 of the Student Complaint Form reiterates under the heading, "Notice of Collection, Declaration and Consent to the Indirect Collection of Personal Information" the scope of the Superintendent's role in reviewing the complaint:
The information you have provided on this form and in other communications related to this complaint will be used by the Ministry of Training, Colleges and Universities to review and attempt to resolve the disagreement between you and the school in order to determine whether the school is in compliance with the Act and the regulations.
[15] In her Student Complaint Form, the applicant describes the basis for her complaint as summarized below:
(i) The procedure used to investigate the theft was deeply flawed. A written complaint was not provided to her, evidence against her was not disclosed, she was not given a copy of witness statements and cross-examination of the witnesses was not allowed
(ii) The regulation requires that the complaint be made in writing. It was not and so the expulsion is “void”.
(iii) The regulation states that the persons who will decide the complaint and their positions must be identified. The applicant states that APLUS did not comply.
(iv) The APLUS ad hoc appeals committee was “required to look afresh into the matter” and they did not do so. This committee did not provide reasons.
(v) The selection process for the Appeals Committee “lacked independence and transparency”. The members were not selected according to the “Appeal Process” of APLUS. The Appeals Committee was not properly constituted.
(vi) APLUS did not comply with the s. 36 (1) (d) of the regulation that requires APLUS to provide a description of how the process will be recorded.
(vii) APLUS has not complied with the regulation that requires APLUS to maintain a record of the complaint for three years.
[16] The Superintendent's delegate, Inspector Dina Waik (the “Inspector”), Private Career Colleges Branch, Ministry of Advanced Education and Skills Development (the "Ministry") reviewed the applicant’s complaint and materials and documentation that APLUS provided.
[17] In an email dated January 10, 2017, the Inspector notified the applicant and APLUS that she had concluded her inquiries into the complaint that APLUS had “inappropriately expelled [the applicant]”. The Inspector states that her task was to “determine if APLUS had contravened the Private Career Colleges Act”.
[18] In the email, the Inspector set out the specifics of the applicant’s complaints and APLUS’s response. She explained that some of the applicant’s complaints “are not under the purview of the Superintendent under [the Act]” (specifically complaints regarding pressuring humiliation and targeting of the applicant and complaints about the proportion of punishment (expulsion) in relation to the theft). As a result, no findings were made concerning these complaints.
[19] The Inspector listed the documentary evidence that she reviewed. She then set out her findings as follows. The applicant signed the Student Enrolment Contract and received the “Student Orientation Handbook and Expulsion Policy”. The Expulsion Policy Guide informed the student that theft was inappropriate and may lead to expulsion. Further, APLUS had the discretion to take immediate steps and if expelled the student would receive written notice of this decision. APLUS had informed the applicant of the evidence that APLUS relied upon. The decision to open the applicant’s locker in her absence was permitted if there was a reasonable suspicion of wrongdoing. APLUS gave the applicant an opportunity to write an explanation letter. The applicant was notified that she had a right of appeal and a meeting of the Appeals Committee was held.
[20] The Inspector found no evidence that APLUS had contravened the Act in its expulsion of the applicant. The applicant acknowledged receipt of APLUS’s polices at the time of enrollment. APLUS was found to have followed the policies in a timely fashion. It convened the ad hoc Appeals Committee and the membership of this committee was “according to policy”. APLUS also provided the applicant with her transcripts. Finally, the Inspector found that the applicant was not entitled to a full refund of her tuition or any other remedy under the Act.
[21] In a letter dated May 1, 2017, legal counsel for the applicant advised the Ministry that his client was not satisfied with the response and requested a fresh inquiry into the matter.
[22] In an email dated June 5, 2017, the Ministry advised counsel for the applicant that the Inspector’s findings were final and that the Act and its regulations did not contemplate an internal review, fresh inquiry or other re-consideration process.
[23] The Applicant seeks judicial review of the Superintendent’s decision and asks the court to grant the following relief:
(i) an order setting aside the order of the Superintendent;
(ii) an order that the matter be sent back to the Superintendent for a “re-inquiry” before a different inquiry officer; and
(iii) costs
[24] In oral submissions, the applicant expanded on the relief she seeks. She submits that the Superintendent has the power to consider all of her complaints. As well, she states that the Superintendent has the power to make orders that will allow her to return to APLUS, write her exams and complete her education.
the jurisdiction issue
[25] The respondent states that the decision of the Superintendent is not subject to judicial review under the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 (“JRPA”). The basis for this position is as follows.
[26] Subsection 36(2) of the regulation is a discretionary complaint referral mechanism. It provides the student with an opportunity to refer her complaint to the Superintendent. The Student Complaint Form states that the Superintendent will review and investigate to determine if the private career college was compliant with its statutory and regulatory duties under the Act regarding its policies and practices in handling student complaints.
[27] Depending on the results of the inquiry, the Superintendent may attempt to mediate to try and resolve the disagreement between the student and the private career college. The decision whether to take any action regarding the referred complaint is entirely discretionary and not contemplated by the Act or its regulations.
[28] The Inspector's determination that APLUS was not in breach of the Act or its regulations is a discretionary administrative determination, not a statutory power of decision. The Act and its regulations at issue in this Application, provide no permissive or mandatory statutory authority for how a referred complaint should be reviewed or assessed by the Superintendent.
[29] Lastly, the applicant’s relationship with APLUS is governed by the contract. The issues between them are private and private law remedies.
[30] In her factum, the applicant makes no submissions on the issue of jurisdiction. In oral submissions, she states that under s. 2(2) of the Act, the Superintendent is directed to exercise the powers and perform the duties assigned to the Superintendent under the Act. The section states:
(2) The Superintendent may exercise the powers and shall perform the duties conferred or imposed upon him or her by or under this Act.
[31] The applicant argues that s. 2(2) gives the Superintendent the power to make orders and his designate, the Inspector, failed to do so. She argues that this section gave the Inspector the power to consider all of her complaints and to make whatever order was required to remedy the alleged breach of natural justice and procedural unfairness.
[32] For the reasons that follow, I find that the Superintendent is not subject to judicial review under the JRPA.
analysis
[33] Section 1 of the JRPA defines a statutory power of decision as follows:
“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,
and includes the powers of an inferior court.
[34] Subsection 2(1) of the JRPA, directs when a court can grant relief on an application for judicial review:
2 (1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[35] The Inspector’s email that set out the results of her inquiry was not a statutory power of decision. There is nothing in the Act or the regulation that conferred a power or right on the Superintendent to make a “decision” concerning the complaint referral. This was simply an inquiry into a complaint referral. The regulation limited the focus of the inquiry to the question of whether APLUS followed the student complaint procedure.
[36] The determination that the Inspector’s email was not a statutory power of decision is not the end of the analysis. As stated in Setia v Appleby College, 2013 ONCA 753 at para 32, “the jurisdiction provided by s. 2(1)1 of the JRPA turns on whether the expulsion decision is the kind of decision that is reached by public law and therefore a decision to which a public law remedy can be applied.”
[37] In Setia v Appleby College, a private school expelled a student, who then issued an application for judicial review of the expulsion decision. The issue in that case was whether the decision to expel the student was an exercise of a statutory power of decision for the purposes of the JRPA.
[38] The Setia decision provides a road map for this court. The Court of Appeal considered when it is appropriate for courts to review the actions of a decision maker that is not exercising a statutory power of decision. It is recognized that under s. 2(1) of the JRPA, that judicial review is not restricted just to decision makers that exercise a statutory power of decision. As Goudge J.A. noted in Setia, at para. 30: “The public law remedies giving relief in the nature of the prerogative writs are not dependent on the presence of a statutory power of decision.”
[39] In Setia, at para 33 the Court of Appeal adopted the approach of Stratas J.A. in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605 (C.A.), to assess if the decision was sufficiently public in nature so as to clothe the court with jurisdiction to review the decision. The court states:
33 The assessment of whether a particular decision is subject to public law and its remedies requires a careful consideration of the relevant circumstances of the particular case informed by the experience of the caselaw. I agree with the approach of Stratas J.A. in Air Canada v. Toronto Port Authority, 2011 FCA 347. He said this at para. 60:
There are a number of relevant factors relevant to the determination whether a matter is coloured with a public element, flavour or character sufficient to bring it within the purview of public law. Whether or not any one factor or a combination of particular factors tips the balance and makes a matter "public" depends on the facts of the case and the overall impression registered upon the Court.
[40] Consideration of the factors is “not a checklist where one answers Yes or No to each factor and then totals up the result. Rather, one uses the factors as a guide to reach the ultimate conclusion whether the particular matter in issue is of a public nature” (see West Toronto United Football Club v. Ontario Soccer Assn., 2014 ONSC 5881 at para. 21). It is a “more subjective analysis applying and weighing those of the identified factors that are relevant to the particular case” (Assn. for the Protection of Amherst Island v. Ontario (Ministry of the Environment), 2014 ONSC 4574, [2014] O.J. No. 4056 (S.C.J.) at para. 42).
[41] This approach is consistent with the direction of Stratas J.A. in Air Canada at para. 60:
Whether or not any one factor or a combination of particular factors tips the balance and makes a matter "public" depends on the facts of the case and the overall impression registered upon the Court.
[42] The factors are described by Stratas J.A., at para. 60 as summarized below:
• The character of the matter for which review is sought.
• The nature of the decision-maker and its responsibilities.
• The extent to which a decision is founded in and shaped by law as opposed to private discretion.
• The body's relationship to other statutory schemes or other parts of government.
• The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity.
• The suitability of public law remedies.
• The existence of a compulsory power.
• An "exceptional" category of cases where the conduct has attained a serious public dimension.
[43] In West Toronto United Football Club, the court returned to the reasons of Stratas J.A. at para. 60, to assist in understanding and applying the factors. I agree with this approach. I will now consider the factors that are relevant to this case.
Factor One - The character of the matter for which review is sought
[44] Stratas J.A. asks the question: “Is it a private, commercial matter, or is it of broader import to members of the public?”
[45] The applicant’s complaint was based on her private dispute with APLUS. She signed a private contract with APLUS and agreed to follow the rules and policies in the Handbook. The applicant appealed the expulsion decision and then referred her personal complaint to the Superintendent. There is nothing “public” about the matter.
Factor Two - The nature of the decision-maker and its responsibilities
[46] On this factor, Stratas J.A. asks the question: “Is the decision maker public in nature, such as a Crown agent or a statutorily recognized administrative body, and charged with public responsibilities?”
[47] While the Superintendent is a publically appointed decision maker, s. 36(2) of the regulation that allows for a complaint referral, says nothing about what must happen when a referral is made. There is no requirement to make a decision nor any direction about how the referral is to be conducted. This demonstrates the discretionary nature of the referral.
[48] This is contrasted with the decisions that the Superintendent shall make under Part IV of the Act which deals with an application to register or renew to operate as a private career college.
[49] Under Part IV, the Superintendent is required to follow mandatory steps and make a decision. Among the factors that the Superintendent shall consider, is whether it is in the public interest to register or renew the application. The concept of public interest is absent in s. 36(2) of the Regulation that allows a complaint referral.
[50] Further, Part IV of the Act gives the Superintendent the power to make a variety of specific orders. If the Superintendent denies an applicant’s request to be registered as a private career college or denies a renewal of a licence, the applicant shall be notified of the right to a hearing before the Licence Appeal Tribunal and may appeal the tribunal decision to the Divisional Court.
[51] The applicant’s reliance on s. 2(2) of the Act does not assist her. This section refers to the Superintendent’s powers that are specifically set out in the Act (for example, the powers under Part IV of the Act to make orders dealing with applications and renewals of private college registrations). There are no powers that deal with the complaint referral.
[52] In effect, the Superintendent’s decision in this case was part of a discretionary statutory complaint scheme. The Superintendent has no power to decide the very decision in issue (the expulsion decision) and there is no requirement to make any decision. The regulation does not specify any procedure that the superintendent must follow or the orders that might be made. When contrasted with Part IV of the Act, this leads me to conclude that s. 36(2) of the regulation is a discretionary complaint referral mechanism.
Factor Three - The suitability of public law remedies
[53] On this factor, Stratas J.A. noted that "if the nature of the matter is such that public law remedies would be useful" then a court would be more inclined to view the matter as public in nature. Public law remedies are not suitable to what is a private contractual dispute. There is nothing in the Act that would give the applicant what she is hoping to achieve: a right to return to APLUS and complete her education.
Factor Four - The existence of a compulsory power
[54] Dealing with this factor, Stratas J.A. said that the "existence of compulsory power over the public at large or over a defined group, such as a profession, may be an indicator that the decision is public in nature". As noted above, the referral of the complaint does not include a compulsory power. It is clear from the student complaint form that the superintendent has the discretion to decide how best to proceed with the complaint of the individual. It does not impact the public at large.
Factor Five - An exceptional category of cases.
[55] On this residual category, Stratas J.A. states that “[w]here a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable". The matter before us does not fall within this exceptional category of cases. The complaint referral deals with the applicant’s private complaint and does not impact the broader rights or interests of society.
conclusion
[56] In summary, it is clear from the analysis that the applicant’s complaint referral has “no public element, flavor or character sufficient to bring it within the purview of public law”. As a result, I find that the decision of the Superintendent is not subject to judicial review under the JRPA.
[57] The application for judicial review is dismissed.
[58] The respondent has been successful and is entitled to costs. The respondent seeks cost of $1,230 all inclusive. This amount is fair and reasonable. I order the applicant to pay the respondent its costs fixed at $1,230 all inclusive.
___________________________ C. Horkins J.
I agree: ___________________________
Varpio J.
I agree: ___________________________
Myers J.
Released: February 1, 2018
Sangar v. Ontario (Private Career Colleges Superintendent), 2018 ONSC 673
DIVISIONAL COURT FILE NO.: 440/17 DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Varpio, Myers JJ.
BETWEEN:
SONI SANGAR
Applicant
– and –
SUPERINTENDENT, PRIVATE CAREER COLLEGES
Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: February 1, 2018