Appeal of Proposal to Revoke the Registration of the Academy of Business, Healthcare & Technology Inc. o/a as Emmanuel Academy of Business, Healthcare & Technology issued by the Superintendent, Private Career Colleges Act, 2005, pursuant to the provisions of the Act.
Between:
Academy of Business, Healthcare & Technology Inc.
o/a as Emmanuel Academy of Business, Healthcare & Technology
Appellant
-and-
Superintendent, Private Career Colleges Act, 2005
Respondent
DECISION AND REASONS
ADJUDICATOR: Dawn Kershaw, Vice-Chair
APPEARANCES:
For the Appellant: Peter Buechner and Thelma Buechner, Representatives
For the Respondent: Judith Parker, Counsel
Madeline Torrie, Student-at-Law
Heard In-Person: June 5, 6, 7 & 10, 2019
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant, Academy of Business, Healthcare & Technology Inc. o/a as Emmanuel Academy of Business, Healthcare & Technology (“the College”) appeals the respondent’s November 27, 2018 Notice of Proposal to revoke its registration as a private career college (“Proposal”) pursuant to section 18(2) of the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L (the “Act”). Mr. and Ms. Buechner are the Directors of the College.
2Under section 14(1) of the Act, the Superintendent of private career colleges must register a proposed private career college if it is satisfied that, among other things, it will act in accordance with the Act and can be expected to be financially responsible in operating the career college. The Superintendent may impose conditions on a registrant that it must follow.
3Section 18 of the Act allows the Superintendent to suspend or revoke a registration if, among other reasons, the Superintendent believes the requirements outlined in section 14(1) are no longer met, that the registrant has not operated in accordance with the Act or its regulations or that the registrant has breached a condition of its registration.
4The College primarily offers a personal support worker (“PSW”) program. It also offers a physiotherapy assistant program, but at the time of the Proposal, it had only one student registered, who was not actively taking classes.
5On May 4, 2018, prior to the Proposal, the Superintendent changed the College’s conditions of registration because of issues of non-compliance it asserted were found during an inspection. As a result of the inspection findings, the Superintendent required the College, as a term of its continued registration, to employ a compliance monitor for 12 months to assist it in remedying the non-compliance issues.
6In its proposal, the Superintendent asserts that the College breached a condition of its registration by failing to have a compliance monitor in place since September 21, 2018. The Superintendent further asserts that the College has breached its condition requiring that it offer its students the National Association of Career College’s (“NACC”) PSW program as required by its program approval.
7The Superintendent further asserts that the College cannot be expected to operate in a financially responsible manner.
B. RESULT:
8For the reasons that follow, I direct the Superintendent to carry out the Proposal.
C. ISSUES:
9Pursuant to section 18(2) of the Act, I must decide whether the respondent has shown that the College’s registration ought to be revoked. To answer that question, I must determine whether:
a. The College has breached its registration conditions, specifically by failing to have a compliance monitor in place and by failing to offer the approved PSW program; and
b. a requirement described in section 14(1) of the Act is no longer met, specifically in this case whether, having regard to the appellant’s financial position, the appellant can be expected to be financially responsible in the operation of the College;
c. the College has failed to comply with a provision of this Act or the regulations.
10Pursuant to section 19(6) of the Act, after the hearing, I can direct the Superintendent to carry out the proposal, refrain from carrying out the proposal, attach such registration conditions as I consider appropriate or take such other action as I consider appropriate.
11The onus is on the Superintendent to prove its assertions in the Proposal on a balance of probabilities, meaning that it is more likely than not that the assertions are true.
D. evidence and analysis:
Breach of Conditions of Registration
12I start by addressing the alleged breaches of conditions of registration. These are not unrelated to the financial issues in this matter. However, I will address them separately to the extent possible. The Superintendent alleged a number of condition breaches. Given my findings below on the most serious of the alleged breaches, I do not intend to address them all.
13The Superintendent asserts that the College breached its conditions of registration by:
a. Failing to have a compliance monitor in place; and
b. Failing to offer the NACC PSW program
Compliance Monitor
14Mr. and Mrs. Buechner do not deny that the College had some compliance issues, which resulted in the registration condition that the College have a compliance monitor work with it for 12 months. Christopher Gould, an inspector under the Act, explained that a compliance monitor is an impartial third party who can assess the conduct of a registrant under the Act, in this case, the College. The College hired Ann Robinson as its compliance monitor. She attended the College to help the Buechner’s remedy the non-compliance issues and provided the Superintendent with three reports at the end of each of June, July and August.
15One of the main issues Ms. Robinson identified was that the College was admitting students on a continuous intake basis, meaning that students could start taking classes whenever they registered. This meant students were at all different stages of the program, making it very difficult for the College to ensure it had the required number of instructors, to plan the students’ practicums in the community and to understand how far each of the students were in the program and when they would graduate. Ms. Robinson told the Buechner’s they could no longer admit students on a continuous intake basis, which had a negative impact on the College’s financial stability.
16Ms. Robinson identified many other areas of non-compliance such as documents missing from student files, including literacy or equivalency testing documents or documents to support advanced standing placements. Instructors’ files also were missing the required two reference letters. In addition, the College did not have a registered nurse on staff, as required.
17By the end of July, Ms. Robinson reported some improvement, but also identified additional areas of non-compliance. For example, the College was providing a PSW program worker to work with the students in their community practicum placements for only one day when they were supposed to be on site for the required 100 hours. There was also lax recording of attendance, as well as generous and inappropriate recording of required community hours, which included granting students 40 hours for attending graduation.
18In Ms. Robinson’s August report, she wrote that the College continued to make improvements with respect to issues of non-compliance, but it was hard to get the Buechner’s to address these issues. The report also identified additional issues of non-compliance. She also identified insolvency problems, including a potential inability to pay funds to the Training Completion Assurance Fund as required by section 3 of the Act, a fund that is meant to protect students by, for example, ensuring that they receive refunds, if necessary.
19While the parties differ on the reason for Ms. Robinson’s resignation, there is no dispute that she resigned in September 2018. Mr. Nisanthan, an inspector with the Ministry of Training, Colleges and Universities testified that Ms. Robinson advised him that she was only able to cash the College’s first post-dated cheque to her, and that the next cheques were returned indicating insufficient funds. Mr. Buechner testified that Ms. Robinson told him she was too busy to continue. The Superintendent, Carol Strachan, testified that the reason the College did not have a compliance monitor was irrelevant and it was a breach of its conditions of registration not to have one.
20The Buechner’s did not deny that they did not have a compliance monitor as of September 21, 2018, but testified that they tried to find another, without success. Mr. Buechner testified that he contacted Mr. Nisanthan for some other names, but Mr. Nisanthan told Mr. Buechner to contact Career Colleges of Ontario, which he did. Mr. Buechner testified he talked to two of the people there who felt they could not help, while the third lived too far away. In his appeal form, Mr. Buechner asked that he be given some additional names so that the College can hire a new compliance monitor.
21Ms. Strachan testified that she gave the Buechner’s sufficient opportunity to remedy the compliance monitor issue by not taking immediate action, but the Buechner’s did not come into compliance before she filed the Proposal more than two months later.
22I find that the College breached a condition of its registration as of September 21, 2018 by failing to have a compliance monitor in place. The Buechner’s had more than two months to remedy the breach and did not do so. In addition, though Mr. Buechner testified that he simply needed an alternate name to replace Ms. Robinson, there was no evidence that the Buechner’s would be able to hire a new compliance monitor given the College’s financial position.
Failure to Offer the NACC Program
23It is a condition of the College’s registration that it only provide the PSW program for which it received the approval of the Superintendent. The conditions on the College’s program approval note that if NACC were to restrict or prevent the College’s graduates from challenging [writing] the NACC PSW exam, the Superintendent may decide to revoke the program approval.
24When the College was registered, it was approved to teach a PSW program that it purchased from the NACC. To be permitted to use the NACC program, the NACC must be satisfied that the College teaches the program the way NACC intends. For example, students must get the required number of hours of instruction. NACC audits colleges to ensure compliance. The Superintendent imposed a registration condition on the College that in order to offer the PSW program through NACC, the College had to remain in good standing with NACC.
25On October 11, 2018, NACC revoked the College’s permission to use the NACC PSW and PSW Bridging programs because of findings noted in its September 28, 2018 program audit. As a result, the Superintendent wrote to the College the same day and informed it that the Superintendent’s approval of the College’s PSW and PSW Bridging Programs, was revoked because the College was not in good standing with NACC and therefore was not able to offer NACC’s PSW program.
26The Buechner’s do not deny that the NACC withdrew its permission for the College to offer the NACC PSW program and as of the date of the hearing, the College still does not hold good standing with NACC. As a result, I agree with the Superintendent that the College breached its registration condition by losing NACC’s approval to offer its PSW program. In addition to this being a breach of a condition of its registration, this also constituted a violation of the Act.
Financial Responsibility Requirement no Longer Being Met
27Pursuant to section 18(2)(a) of the Act, the Superintendent may revoke a registration if the Superintendent believes that a requirement described in section 14(1) is no longer met. Section 14(1) includes a requirement that, having regard to the registrant’s financial position, the registrant can be expected to be financially responsible in the operation of the private career college.
28The Superintendent asserts that because the College was not able to pay Ms. Robinson, it is an indication that it cannot be expected to be financially responsible in the operation of the College. While Mr. Buechner asserted that Ms. Robinson told him she was too busy to continue assisting the College, he did not deny that the College was behind in paying Ms. Robinson. The Buechner’s also testified that the reason Ms. Robinson agreed to have the College spread the payments to her out over 12 months was because the College had cash flow problems, which she attributed to high rent and being prohibited from enrolling students on a continuous basis.
29The inability to enrol students on a continuous basis was one of the major reasons for the College’s financial difficulties, though not the only one. Not being able to enrol students at any time of the year caused financial difficulties, as Ms. Buechner testified. While the College moved locations, thereby reducing its rent, it then was not permitted to offer the NACC PSW program, resulting in the Superintendent revoking its program approval. It now has no operating PSW program, which gave it the vast majority of its income.
30While the Buechner’s both testified that they have other programs in the works, including an international student program, there is nothing approved at this stage. Prior to the College being prevented from offering the PSW program, the financial investigation by the College’s own auditor reported financial concerns. The Ministry in turn identified the College as a high financial risk college. The College’s financial position remains precarious and there is no dispute that it has not been able to pay its share of the Training Completion Assurance Fund.
31Ironically, on October 11, 2018, the College also was informed that each of the students enrolled in the College’s PSW programs was entitled to a full refund of all fees paid, pursuant to section 25(1) 2. of O. Reg. 415/06 made under the Act because the College discontinued the vocational program before the students completed the program. This College owes tuition refunds to its students that were not able to complete their PSW training before the College’s approval to teach the program was revoked. The Buechner’s admit they have not paid the refunds, and that the College does not have the money to pay them. I find this is further evidence to support the respondent’s position that the appellant cannot be reasonably expected to be financially responsible in the operation of the College.
32In sum, I find ample evidence to support the Superintendent’s assertion that given the appellant’s financial position, the appellant cannot be expected to be financially responsible in the operation of the private career college. I also find that it is a violation of the Act by the College to have failed to provide the refunds as required by the Act.
E. Are there appropriate conditions that could facilitate a registration?
33Neither of the parties proposed any conditions on which the College’s registration could be maintained and given the facts set out, above, I would not have been satisfied that conditions would be appropriate.
F. ORDER:
34The Tribunal directs the Superintendent to carry out the proposal to revoke the College’s registration as a private career college (“Proposal”) pursuant to section 18(2) of the Act.
LICENCE APPEAL TRIBUNAL
Dawn J. Kershaw, Adjudicator
Released: July 9, 2019