Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2012-11-28
FILE: 7633/DNA
CASE NAME: 7633 v. Director, Day Nurseries Act, 1990
Appeal from an order of the Director, under the Day Nurseries Act, R.S.O. 1990, c.D.2
Longbranch Child Care o/a Funshine Child Care Applicant
-and-
Director, the Day Nurseries Act Respondent
ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Applicant: Ian Goodfellow, Agent
For the Respondent: Katherine Renison, Counsel
Heard in Toronto: October 18, 2012
This is a motion brought by the Respondent to determine whether the Tribunal has the jurisdiction to order the Director to transfer a licence issued under the authority of Section 11 of the Day Nurseries Act from one premise to another premise.
BACKGROUND
On February 10, 2012, the Ministry of Education renewed a licence (Tab 1 of the Respondent’s Document Brief) for 12 months to Longbranch Child Care (“the Applicant”) to operate a day nursery under the name of Funshine Child Care. The renewal of the licence stated a specific address which was a location leased by the Applicant. The licence included three clauses. The first clause addressed the date of expiry, the second addressed the licensed capacity of the day nursery and the third listed three terms and conditions.
On March 22 and May 4, 2012, Mr. Goodfellow, agent for the Applicant received written notification from the landlord that renovations were to be done at the leased location. In the short term, a changed space in the building was required. The landlord also stated that the Applicant’s lease for the premises would terminate on June 30, 2012. On May 9, 2012 Mr. Goodfellow was advised by the Ministry program advisor that a change of space for the day nursery location must be approved by the Ministry in advance of the change.
On May 25 and May 31, 2012, the program advisor reiterated in two letters to Mr. Goodfellow that, with the lease expiry on June 30, 2012, the licence to operate the day nursery would also expire. Another location would not be considered a temporary relocation as the Applicant would not be able to return to the previously licenced location. The program advisor advised that processing a new license before June 30th, 2012 was not feasible and an option for the Applicant was to run a 10 week unlicensed summer camp.
During the months of July and August, 2012, Mr. Goodfellow opened an unlicensed summer camp at new leased premises. In accordance with the Ministry of Education guidelines for summer camps, the 10 week summer camp was exempted from the licensing requirements of Section 11 of the Day Nurseries Act.
On September 10, 2012, two Ministry of Education program advisors conducted a site inspection at the Applicant’s new leased premises to follow-up on a complaint of an unlicensed daycare operation. The Applicant’s ten week unlicensed summer camp exemption had expired and the program advisors observed that care was being provided to 15 children. To that date, the Ministry had not received from the Applicant an application for a licence to operate a day care nursery at the new location.
On September 11, 2012, the Director under the Day Nurseries Act, sent a letter to Mr. Goodfellow advising the Applicant was not in compliance with the Subsection 11(1) of the Day Nurseries Act, which states:
11 (1) No person shall establish, operate or maintain a day nursery or private-home day care agency, as the case may be, except under the authority of a licence issued by a Director under this Act.
The Applicant was required to immediately reduce to no more than five the number of children in its care, as in the absence of a licence, care could only be provided to a maximum of five children, not of common parentage, and under 10 years of age, regardless of the number of adults on site.
The Applicant, by way of an appeal, seeks an order from the Tribunal that the Director transfer the licence from the previously leased premise to another premise. Mr. Goodfellow submitted that the Applicant’s licence issued on February 10, 2012 for 12 months is valid and the premises’ address on the licence is a term and condition of the licence. He submitted that the provisions under section 14 of the Day Nurseries Act, allow the Tribunal to prescribe other terms and conditions for the licence in lieu of those prescribed by the Director.
The Respondent brings this motion to strike the Applicant’s appeal on the basis that the Tribunal is without jurisdiction to hear the appeal.
Ms. Renison, Counsel for the Respondent, in submissions, stated that an appeal from a decision of the Director under the Child and Family Services Act and an appeal from a decision of the Director under the Day Nurseries Act are made to the Licence Appeal Tribunal. Section 13(5) of the Day Nurseries Act states:
(5) Sections 199, 201 and 202 of part IX of the Child and Family Services Act apply with necessary modifications to proceedings before the Tribunal, to the power of the Tribunal under this Act and to appeals therefrom.
The Respondent takes the position that the jurisdiction of the Tribunal is based on a set of preconditions set out in sections 197(1) and 198(1) of the Child and Family Services Act. The same preconditions apply with necessary modifications to an appeal under section 12, 13, and 15 of the Day Nurseries Act. Section 12 of the Day Nurseries Act provides the grounds for an appeal to the Tribunal and states:
(1) Subject to section 13, a Director may refuse to issue a licence where in the Director’s opinion…
(2) Subject to section 13, a Director may refuse to renew or may revoke a licence issued to a day nursery….
Section 13 of the Day Nurseries Act provides the preconditions for an appeal and states:
(1) Where a Director proposes under section 12 to refuse to issue a licence or to refuse to renew or to revoke a licence issued under that section, the Director shall cause notice to be served of the Director’s proposal together with written reasons therefore, on the applicant or licensee, as the case may be.
(2) A notice under subsection (1) shall inform the applicant or licensee, as the case may be, that the applicant or licensee is entitled to a hearing by the Tribunal…
Section 14 of the Day Nurseries Act provides another ground for appeal and states:
(1) Where a licensee is dissatisfied with the terms and conditions prescribed by a Director under subsection 11 (2), (4) or (5) or section 11.1, the licensee may, within 15 days after the licence is received by the licensee, by written notice given to the Director and the Tribunal, require a hearing a hearing by the Tribunal and the Tribunal shall appoint a time for and hold a hearing.
The Respondent argued that none of the preconditions exist and the Tribunal has no jurisdiction.
Ms. Renison further argued that a licence issued is for a specific premise and s.11 (6) of the Act states:
(6) A licence is not transferable
The Applicant’s licence is site specific and the day nursery operated at the address noted on the licence document. In interpreting whether a licence is attached to a single premise, Ms. Renison submitted that the Tribunal must take note of the detailed requirements for a premise to be licensed and the importance of these requirements to the overall purpose of the legislation. Since premises must be carefully inspected to meet the numerous requirements before a licence is issued, it follows that the day nursery licence cannot be transferred to another premise which has not undergone the same rigorous inspection.
Ms. Renison further submitted that the effective and expiry dates on a licence are matters of fact and do not form a term and condition on a license. Only the items listed below the wording “this license is subject to the following terms and conditions” constitute the terms and conditions of the licence.
Ms. Renison cited the decision of this Tribunal in CFSA v Mary Homes Emergency Residence, LAT, January 19, 2006, where the Tribunal considered whether wording placed above the clause “this license is subject to the following terms and conditions” was also a term and condition of the licence. The Tribunal stated:
“The Tribunal views clause number two as a finding of fact and states the legislative authority why it should be met in order to have a licence renewed, but is not directory in nature as are the terms and conditions as set out in clause number four. The Tribunal agrees that the terms and conditions in clause number four are exactly that in as much as they give the authority and clear direction on how, to whom and by when the terms and conditions can be met. Clause number two is lacking in its content and direction and thus the Tribunal does not agree that the manner in which it is written represents a term or a condition”
The Tribunal has carefully considered the submissions of the parties. The Tribunal’s jurisdiction on appeal is as set out in s. 13(2) and s. 14(1) of the Act. There is no evidence before the Tribunal that a notice of proposal to refuse to issue, or renew or revoke a licence was issued by the Director to the Applicant. The Tribunal accepts Ms. Renison’s submissions that the preconditions required for an appeal under s.13 (2) are nonexistent. The Tribunal finds that the Applicant has failed to identify any ground for appeal under s. 13(2) of the Act.
The Act and s. 4, 5 and 6 of O. Reg. 262 clearly outline several requirements in the area of building, accommodation, equipment and furnishings, among other things, that must be met before a Director can issue a licence. If a licence was not site specific and transferable, it would defeat the very purpose of the legislation which is to provide for the health, safety and well being of children in care.
In reviewing the licence issued to the Applicant in February, 2012, the Tribunal finds that there is no ambiguity in the document. The language on the face of the licence is clear. The specific address for the day nursery location is clearly stated at the top of the licence. The third clause which reads “this licence is subject to the following terms and conditions” is directory in nature. By definition, terms and conditions describe rules, requirements or provisions that form an integral part of an agreement or contract. The Tribunal is of the view that the address on the Applicant’s licence does not represent such a definition and is not a term and condition of the licence. The Tribunal finds that the Applicant has failed to identify a ground for appeal under s. 14(1) of the Act.
After considering the evidence and submissions of the parties, the Tribunal concludes that it has no jurisdiction to order the Director to transfer a licence issued under the authority of Section 11 of the Day Nurseries Act from one premises to another premise.
DECISION
Upon motion by the Director, The Tribunal finds it is without jurisdiction to hear the Applicant’s appeal. The appeal is, therefore, a nullity and the Tribunal shall close its file.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: November 28, 2012