Licence Appeal Tribunal
An Appeal from a Notice of Change in Licence Status to Provisional Licence by the Director, Child Care and Early Years Act, 2014, S. O. 2014, Chap. 11, Sch. 1, s. 25.
Between:
Ivy League Montessori School Inc. o/a Ivy League Montessori School Appellant
and
Director, Child Care and Early Years Act, 2014 Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATORS: D. Gregory Flude, Vice-Chair Joanne E. Foot, Member
APPEARANCES: For the Appellant: Gerald Jutsun, Representative For the Respondent: Amy Leamen, Counsel
HEARD in Toronto: August 22, 2018
OVERVIEW
1The appellant, Ivy League Montessori School Inc., runs a child care centre in Markham, Ontario and has been licensed under the Child Care and Early Years Act, 2014 (the “Act”) and predecessors of the Act since May, 2007. Ms. Shihara Misbah is the owner of the appellant and responsible for its day to day operations.
2On January 5, 2018 the Community and Health Services Department of the Regional Municipality of York (“Public Health”) issued a work order to the appellant requiring it to carry out repairs to remedy defects in the kitchen area. The work order found the risk arising out of the defects to be “High” and required the repairs to be completed by March 7, 2018. As of the date of the hearing, the appellant had not completed the repairs.
3As a result of that work order, the Director, Child Care and Early Years Act, 2014 (the “Director”) issued a licence with conditions that the Public Health work order be complied with within a certain time limit. When the appellant failed to comply within that time limit, the Director issued a provisional licence on March 16, 2018. The appellant has applied to this Tribunal under Section 25(4) of the Act to set aside the provisional licence and restore a full unconditional licence.
4The Notice of Appeal to this Tribunal sets out the appellant’s position. While the language is dense and appears to draw legal conclusions, it would appear that the focal point of the appellant’s position is the impact of the provisional licence on the appellant’s application for municipal funding for repairs to the appellant’s premises and other purposes. A secondary argument, with which we will deal first, is that the Director lacked authority under the Act to issue a provisional licence.
ISSUES
5The issue to be decided in this case is whether the change of status of the appellant’s licence to a provisional licence is warranted under the Act. In order to make this determination, we considered the following more specific issues:
a. Was the Director properly authorized to change the status of the appellant’s licence to a provisional licence under Section 24(1) of the Act?
b. Is the appellant’s non-compliance with the Public Health work order sufficient grounds under s. 24(1) to change the appellant’s licence to a provisional licence?
c. Should the Director have considered the question of availability of municipal funding for the repairs before issuing the provisional licence?
6Section 25(5) of the Act sets out our powers on appeal from the granting of a provisional licence. We may order that the change in licence status be continued, with or without amendment, or substitute our opinion for that of the Director issuing the provisional licence. In addition, we may order the Director to take actions in accordance with the Act and the regulations.
RESULT
7The respondent bears the onus to show that the appellant falls within the criteria set out in Section 24(1) of the Act. We find that the Registrar has satisfied that onus.
8We find that the Director was properly granted authority by the Minister of Education to issue the provisional licence.
9We find that the failure to comply with the Public Health work order falls squarely within the grounds set out in s. 24(1) of the Act for the issuance of a provisional licence.
10Finally, we find, based on the evidence of Ms. Misbah, that there was no municipal funding available for the repairs to the appellant’s premises until she had carried out the repairs. That application was a transaction between Ms. Misbah and the municipality. It was not a consideration for the Director in enforcing the provisions of s. 24(1), nor should it have been. There is no evidence that the Director was even aware of the municipal funding issues at the time the conditional licence was issued.
11For reasons set out below, we order the change to the provisional licence to be continued.
PRELIMINARY ISSUE
12At the outset of the hearing the respondent brought a motion to exclude six witnesses and two volumes of the appellant’s documents on the grounds of relevance. We granted the respondent’s motion giving oral reasons. What follows are those oral reasons edited for clarity.
13The appellant stated that the witnesses are current or former licensees under the Act and that their testimony is based on dealings with the Director. The appellant submitted that their evidence is designed to demonstrate that the Director has lied and acted improperly in other proceedings, including proceedings before this Tribunal. The appellant confirms that none of the witnesses has any direct knowledge of the facts in issue in this case. The appellant bases its submission on similar fact evidence. The appellant also confirmed that volumes 2 and 3 of the appellant’s documents relate only to those other proceedings and contain no evidence relating to the facts in issue in this case.
14We do not see the relevance of any of this testimony to the matter before us. The appellant, in putting forward these witnesses, is attempting to undermine the credibility of the respondent's witnesses before they have testified. The appellant has a full opportunity to listen to the evidence and to cross-examine the respondent’s evidence to highlight any inconsistencies. We would then weigh that evidence in the normal course as we would weigh all of the evidence before us in coming to our decision.
15In granting the respondent’s motion, we declined to hear evidence from the six non‑party witnesses put forward by the appellant and we excluded volumes 2 and 3 of the appellant’s documents.
ANALYSIS
Facts
16The evidence surrounding the issuance of the Public Health work order to comply and its impacts on the appellant was given by Ms. Misbah. She explained that the appellant operates a Montessori School in a historically designated building in the City of Markham, in the Regional Municipality of York (“York Region”). She further explained that York Region makes grants available to child care centres in the municipality. Ms. Misbah explained that she wanted to obtain such a grant, but learned that a precursor to applying for a grant was that there needed to be a work order issued against the building.
17The kitchen area of the building had defects in the floor and cracks and holes in the wall. Ms. Misbah approached Public Health and asked them to issue a work order to fix these issues. She described a conversation with the health inspector in which the health inspector advised her that the defects were not serious enough to issue a work order and, from a health perspective, there was no problem in the kitchen. The inspector went on to explain that, if a work order were to be issued, it could only be withdrawn if Ms. Misbah carried out the repairs listed in the work order. With that understanding, Ms. Misbah asked the health inspector to issue the work order.
18It is difficult to confirm the discussion with the health inspector as the only witness to testify on behalf of the appellant was Ms. Misbah. However, the documentary record shows a long history of dealings between Public Health and the appellant, starting at least in March 2017, when these wall and floor issues were reported. That report, dated March 3, 2017, identifies the wall and floor issues and notes that the appellant had asked for an extension of time to carry out repairs.
19The next involvement with Public Health was seven months later, in November 2017, when the appellant was given until January 2, 2018 to effect repairs. An inspection showed the repairs were not completed by the January deadline and the January 5, 2018 work order referred to above was issued setting the repair deadline for March 7, 2018.
20The issuance of the work order had a cascading effect on the appellant’s licence. Notice of the January 5, 2018 work order came to the Director’s attention. The Director arranged for an inspection of the premises that confirmed the conditions set out in the work order. She then issued a conditional licence requiring the appellant to complete the repairs as set out in work order, that is, by March 7, 2018. When the repairs were not completed by that date, the Director issued the provisional licence that is the subject of this appeal.
21Ms. Misbah made a number of statements about the impact of the provisional licence and the process of the grant application. She talked about applying for a grant in 2017 but missing the grant application cycle. This delayed her application until the 2018 grant year. She then stated that the effect of the provisional licence was to disqualify the appellant from receiving grants. She provided no independent evidence in support of this statement, neither the grant application criteria, nor a witness from the York Region who could speak to the availability of grants for the appellant.
22One piece of evidence stands out when considered in light of the appellant's position that the provisional licence that acts as a bar to receiving grant funding. In discussions with the granting department at York Region, Ms. Misbah testified that she was told that the grant would not be paid before the repairs were carried out. She therefore was aware that she would have to carry out the repairs first at her expense and then apply for reimbursement. It appears to us that, once the repairs have been effected, the Public Health work order will be satisfied and the grounds for a provisional licence would no longer exist.
Issues
ISSUE # 1: Authority to Act
23The appellant submits that the Director lacked the necessary authority to issue a provisional licence submitting that, despite demands, the Director continually failed to provide evidence of her authority to issue a provisional licence. While this issue was raised in the appellant’s Notice of Appeal, it was not fully addressed in the hearing and as such we asked for supplementary submissions. The nub of the appellant’s submissions is that the Ministerial delegation of authority to the Director pre-dates the Act being declared into force and, therefore, is invalid. We do not accept this submission.
24In ss. 64 to 68, the Act sets out the administrative authority for implementing its provisions. Section 64 gives the Minister of Education the responsibility to administer the Act. The following sections authorize the Minister to appoint directors and program advisors and delegate to them powers under the Act. Section 67(3) permits sub-delegation. The applicant submits that the Minister’s delegation of authority is invalid because it predates the day when the Act was declared in force. We do not agree.
25The Act was declared into force on August 31, 2015. The Ministerial delegation of authority is dated July 28, 2015, a month before the Act took effect. The appellant argues that the Minister cannot delegate an authority she does not have. While we accept that proposition as a general principle that is not what the Minister did on this occasion. Rather, knowing that the Act would soon be declared in force, the Minister proactively issued the requisite delegations to take effect when the Act came into force. In other words, the delegation came into effect on August 31, 2015. We see no error in that approach. The principle cited by the appellant would apply had one of the delegates attempted to exercise their delegated authority prior to the Act coming into force, but that is not the situation in this case. The Director exercised her authority in 2018, two and a half years after the Act came into force.
26We therefore find that the Director was exercising a properly delegated authority when she issued the provisional licence to the appellant.
ISSUE # 2: Section 24(1) Grounds
27The second issue we must consider is whether the non-compliance with the Public Health work order is sufficient grounds under s. 24(1) to change the appellant’s licence to a provisional licence.
28Section 24(1) provides that the Director can downgrade a licence to a provisional licence if an inspection reveals non-compliance with the Act and regulations and the Director has no immediate concerns for the safety of children.
29By the time of the Director’s downgrade decision in this matter, the appellant had had approximately one year to address the Public Health work order. The appellant had missed two deadlines set for compliance, one for January 2, 2018 and a second for March 7, 2018. While we acknowledge the appellant’s letter dated March 15, 2018 to the program director, indicating that she was hopeful grant funding would be forthcoming in May 2018, this was not sufficient to reverse the downgrade in licence.
30As became clear in Ms. Misbah’s own testimony, her hope of receiving funding in May 2018 was a false hope because the grant program required her to carry out the repairs first and then seek reimbursement. With no immediate prospect for compliance within the timelines prescribed by either the Public Health work order or the conditions added to the appellant’s licence, we find that the steps taken by the Director to ensure compliance with the Act and regulations were well-grounded.
31In our view the appellant has misconstrued the Director’s actions. Section 24(1) of the Act sets out the purpose of issuing a provisional licence. Despite the fact that the appellant had not remedied the defective conditions within a year, by issuing a provisional licence, the Director had applied s. 24(1)(iii) and not discounted the possibility that the appellant would remedy the defects “within a time period prescribed by the regulations.” In her evidence, the Director stated that the purpose of the provisional licence was to give the appellant time to come into compliance. The appellant seems to have taken this conciliatory approach as inappropriate and confrontational. The other remedy available to the Director was revocation but she accepted the appellant’s position that funding, and therefore, remedial work, was on the horizon. We can find no fault in this approach.
32We therefore find that the Director had ample grounds under s. 24(1) to downgrade the appellant’s licence to a provisional licence.
ISSUE # 3: Municipal Funding/Effect of Provisional Licence
33The final issue to be determined is whether the Director should have considered the question of availability of municipal funding before issuing the provisional licence. The appellant argued that the Director should have taken this matter into her consideration of steps to be taken under the Act in the face of non-compliance.
34When the Director encounters non-compliance, the Act mandates that she take action to correct it. She may issue a conditional licence, a provisional licence, or seek revocation. The first two actions were taken in this case in an attempt to give the appellant the time to come into compliance. How the appellant chose to bring itself into compliance is not the Director’s concern.
35The policy of the Act is to ensure that children of tender years are cared for in properly regulated child care facilities. The Act creates a regime where child care facilities must be licensed and are subject to regular inspection to ensure compliance with the Act and regulations. The means by which a child care operator achieves the necessary level of compliance are not a matter for the Director’s consideration, her focus being solely on compliance and safety, not method.
36The evidence discloses that the appellant was one year into its plan to seek a municipal grant to carry out repairs on its building when the Director finally acted. The Director was not privy to those discussions and was certainly not a party to them. On the best evidence available to us, the Director was not aware of the municipal funding issue until after she had issued a licence with conditions and was on the verge of issuing the provisional licence in dispute in this case.
37The very purpose of the issuance of a provisional licence is to encourage compliance. It also entails a measure of discomfort for the appellant as the Act requires that the appellant notify parents that it has been issued a provisional licence and allow them to make an informed decision about continuing to send their children to the appellant.
38The appellant also asserted that the impact of the issuance of the provisional licence was to deny her access to York Region grants. As stated above, we have no independent evidence to support this position. However, even if we were to accept this position, we find that the consequences of the issuance of a provisional licence are irrelevant to the decision to be made by the Director. The consequences are not a necessary or proper consideration under Section 24(1) of the Act. Accepting Ms. Misbah’s evidence that she had requested that Public Health issue the work order, we find that the consequences of the issuance of the provisional licence all flow from her own actions and not from the actions of the Director.
39There is also the evidence that the issuance of a provisional licence did not impact the repair funding the appellant was seeking. Ms. Misbah testified that she was advised that she needed to pay for the repairs first and then seek reimbursement. Completion of the repairs addresses the issue of a provisional licence and the Public Health work order and would allow the appellant to apply for funding with a clear record. It appears to us that the appellant’s position on the funding question has no foundation and, in any event, was irrelevant to the Director’s decision.
ORDER
40Having heard the evidence and submissions of the parties, we order the change to the provisional licence to be continued.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Joanne E. Foot, Member
Released: March 11, 2019