Date: 2021-10-01

Appeal from a Decision to Revoke a Licence dated May 31, 2021 made by the Registrar under the Private Security and Investigative Services Act, 2005, S.O. 2005, C. 34

Between:

Vinay Kumar Monga

Appellant

and

Registrar of Private Investigators and Security Guards

Respondent

DECISION AND ORDER ON MOTION FOR DIRECTIONS

ADJUDICATOR: Colin Osterberg, Member

REPRESENTATIVES:

For the Appellant: Vinay Kumar Monga, Self-represented

For the Respondent: Adrien Iafrate, Counsel

Motion in Writing: September 13, 2021

REASONS FOR DECISION AND ORDER ON MOTION FOR DIRECTIONS

A. Overview

1On May 31, 2021, the Registrar of Private Investigators and Security Guards (the “Registrar”) revoked the appellant’s security guard licence pursuant to s. 16(7) of the Private Security and Investigative Services Act, 2005, S.O. 2005, C. 34 (the “PSISA”). By Notice of Appeal filed June 6, 2021, the appellant appealed the Registrar’s decision to the Licence Appeal Tribunal (the “Tribunal”) pursuant to s. 17 of the PSISA.

2The Registrar brings this motion to determine the procedure for the hearing of this appeal. According to the Registrar, the appeal should be determined based on the record, there should not be a hearing “de novo”, and the burden is on the appellant to prove that the appeal should be allowed rather than on the Registrar to prove that the appellant’s licence should be revoked.

3The motion proceeded in writing with both parties making written submissions. The appellant is unrepresented, and his submissions did not speak specifically to the issues in this motion.

4For the reasons to follow, I find that an appeal under the PSISA is to proceed as an appeal on the record and that the Tribunal may receive such evidence as is necessary in all the circumstances. The standard of review is reasonableness on questions of fact and correctness on questions of law. Questions as to whether facts satisfy a legal test are questions of mixed fact and law and are to be reviewed on the standard of reasonableness unless there is an extricable question of law involved, in which case, the question of law will be reviewed on the standard of correctness.

B. Analysis

5The case law is clear that where a statute allows an appeal from one administrative decision maker to another, determining the appropriate procedure and standard of review for that appeal is an exercise of statutory interpretation in order to discern legislative intent.

6The Court of Appeal in Ottawa Police Services v. Diafwila, 2016 ONCA 627, considered this issue in the context of policing legislation. That case involved the proper standard of review to be applied by the Ontario Civilian Police Commission (“OCPC”) sitting on an appeal from a first instance decision made by the Chief of Police’s delegate under the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). The Court stated the following:

…the standard of review that it [the OCPC] must apply is to be determined from the language of the enabling legislation: “in considering the jurisdiction of tribunals, the Supreme Court of Canada has adopted a functional and structural approach by looking to the function which the legislature has asked the tribunal to perform and to the powers and processes it has furnished to it” (College of Physicians and Surgeons of Ontario v. Payne (2002), 2002 CanLII 39150 (ON SCDC), 219 D.L.R,(4th) 350 (Ont. Div. Ct.), at para. 18).

7Similarly, in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, the Federal Court of Appeal held the following in determining the standard of review to be applied by the Refugee Appeal Division when reviewing decisions of the Refugee Protection Division:

…the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multi-level administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the [statute] read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the [statute] and its object.

8In Kawartha Pine Ridge District School Board v. Grant et al., 2010 ONSC 1205 (Div. Ct.), the school board sought judicial review of the Child and Family Services Review Board’s (“CFSRB”) decision to hold a hearing de novo in an “appeal” of the board’s decision to expel a student. The CFSRB found in favour of the student, quashed the board’s decision and reinstated the student. The school board applied for judicial review arguing, among other things, that the CFSRB erred in conducting a hearing de novo rather than providing proper deference to the decision of the school board. The Court disagreed, stating the following:

The Tribunal is mandated to “hear” and “determine” the appeal of an expulsion decision. The applicable Act and regulation are silent as to the procedure to be followed.

Therefore, the Tribunal had the discretion to determine the appropriate procedure to be applied, subject to its obligation of procedural fairness and the requirements of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22

Indeed, in this case, the Tribunal held a hearing de novo for very good reasons. First, the School Board decision gave no reasons for the expulsion. Therefore, the Tribunal could not engage in any meaningful review of that decision. It had to proceed with a new hearing and review all the evidence and submissions.

Second, the School Board did not provide the Tribunal with a full evidentiary record on which it could base its decision. There is no record of the School Board’s expulsion hearing

Third, the decision under review – to expel a student from his high school – is one of significant importance to the student and his parents/guardians. Therefore, a high level of procedural fairness is owed to them by the Tribunal. The hearing before the Tribunal was the first full hearing, with the safeguards provided under the SPPA, to the respondent Ms. Grant and to Q.

9In Davis v. City of Guelph, 2011 ONSC 1137, the Superior Court of Justice considered the procedure for an “appeal” to it under the Ontario Building Code Act. The Court concluded that the appeal should proceed principally by hearing de novo primarily for the following reason:

[A]an appeal on the record is practically precluded by the absence of any record or transcript before this Court of the proceeding before the Committee and by the absence of reasons given by the Committee for its confirmation of the Officer’s Order.

10I also note that this Tribunal holds hearings in relation to proposals issued by first instance decision-makers governing the licencing of other professionals such as travel agents¹, horse racers², real estate brokers³, condominium managers⁴ and car dealers,⁵ to name a few. It is well-established that these matters typically proceed via hearing de novo.

11These statutes share common features with PSISA, including that both contain substantially similar grounds for revoking or refusing licences. Perhaps more importantly, they also confer a broad discretion on the Tribunal to “vary” the underlying decision. As noted in Practice and Procedure Before Administrative Tribunals, the authority to “vary” a decision has traditionally been interpreted as a broad discretion:

The words “change”, “alter” and “vary” (or any combination thereof) have a very broad meaning amounting to the ability for the reviewing body to substitute its own decision for the original including reversing it.⁶

12However, these statutes also contain important differences from PSISA. They do not typically provide for a first instance “show cause” hearing, and an affected individual may “request a hearing” rather than “appeal” the first instance decision-maker’s decision.

13The case law is clear that while perhaps offering an important clue, the use of the term “appeal” in PSISA is not determinative of the applicable procedure or standard of review governing this proceeding. Instead, the use of the term must be considered along with the terms of PSISA as a whole, including a consideration of the structure and functions that PSISA confers on both the Registrar and this Tribunal, in order to determine what the Legislature intended when it created the right to appeal to the Tribunal under PSISA.

14An “appeal” to an appellate tribunal may proceed as a review of the underlying decision on the record, as a hearing de novo, or as a hybrid of both. For example, an “appeal” to the OCPC under the PSA proceeds as an appeal on the record subject to the OCPC’s discretion to hear new evidence. On the other hand, an “appeal” to this Tribunal under s. 50(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8 typically proceeds as a hearing de novo, as is an “appeal” to the Ontario Labour Relations Board from an order of an inspector pursuant to s. 61 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1⁷.

15Applying the structural and functional approach, I find that in the circumstances of this case, it ought to proceed largely as a hearing de novo. Much like the legislation governing the CFSRB hearing in Grant, the PSISA is largely silent on the procedure to be followed both for the show cause hearing before the Registrar and the appeal before the Tribunal. As noted by the Divisional Court in Grant, this means that both the Registrar and Tribunal have the discretion to determine the procedure to be followed, subject to the obligation of procedural fairness and requirements of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).

16As far as the Tribunal can tell, in the present case the Registrar did not hear evidence from any witnesses, or audio record the proceeding (not that it was obligated to do so). No evidentiary record was provided to the Tribunal. The Registrar’s reasons are extremely brief:

On or about February 14th, 2020 a video surveillance of you taking money from a purse while on duty as a security guard. Also between the dates of December 17th, 2019 to February 7th, 2020, the company had several reports of thefts in the areas where you had key card access.

Therefore these circumstances have caused me to form the opinion that you are not fit to hold a security guard licence at this time and that if you were licensed, you would not act in your capacity as a licensed security guard with integrity and it is not in the public interest for you to be licensed.

17In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada underscored the importance of reasons:

[T]hey are the primary mechanism by which administrative decision makers show that their decisions are reasonable – both to the affected parties and to the reviewing courts.

18While I acknowledge that the Court in Vavilov also acknowledged that reasons need not be perfect, in this case I find that these reasons are not capable of allowing for any meaningful review. This is particularly the case given the lack of any evidentiary record.

19The reasons do not suggest that there was any wrongful conduct by the appellant at all, let alone conduct which might lead to the conclusion that he will not act in accordance with the law and with integrity and honesty. The reasons do not say whose purse the money was taken from, or that the money was taken without the consent or knowledge of the owner. The reasons do not even state that the purse was not the appellant’s own purse. As for the reports of theft, unless it is assumed that the appellant was the only one with key card access to the areas where thefts allegedly occurred, there is no evidence referred to in the reasons which connects the appellant to those thefts. Moreover, without allowing for further evidence, which the Registrar urges the Tribunal not to admit, the Tribunal cannot view the video to see for itself whether the Registrar’s “findings” are accurate, reasonable and/or supported by the ”evidence”.

20In my view, in these circumstances, where there are scarce reasons and no evidentiary record, it is unlikely that the Legislature intended the Tribunal to conduct an appeal strictly “on the record”. I have therefore concluded that this matter requires further evidence in order for the Tribunal to fairly and expeditiously discharge its mandate.

21If the Registrar were to adopt a more formal procedure, for example by provide more fulsome reasons with an adequate evidentiary record, it may be that the appropriate procedure would be similar to that governing appeals to the OCPC – the matter starts as an appeal on the record, but the tribunal can allow new evidence as it considers just. In those circumstances the Tribunal might also give deference to the Registrar’s factual findings.

22However, in this case the Registrar did not adopt such a process, and I do not need to decide what procedure would be appropriate if it did. Accordingly, I will order that this appeal will proceed with a hearing of evidence. While I will consider the reasons given by the Registrar at first instance, as noted above there is little to defer to. Because it is the Registrar who has concluded that the appellant is not fit to hold a licence under PSISA, and also failed to provide a sufficient record upon which an appeal on the record could be held, I believe it is fair and appropriate that the Registrar will lead evidence in support of its positions. The appellant will thereafter have an opportunity to respond.

C. ORDER

23The Tribunal therefore orders that this appeal shall proceed as follows:

1. The issue for determination by the Tribunal is whether the past conduct of the appellant affords reasonable grounds to believe that he will not carry on business in accordance with the law and with integrity and honesty, was reasonable;
2. Since the reasons given for the revocation of the appellant’s licence are incapable of review, and since there has been no evidentiary record maintained for the Tribunal to review, the hearing will proceed with the Registrar first presenting the evidence that it relies on in support of the reasonableness of its proposal to revoke the appellant’s licence. The appellant will have the right to cross-examine the evidence presented by the Registrar;
3. After the Registrar has presented its evidence, the appellant may present the evidence he relies on in support of his position as to why he should not be precluded from having a licence. The Registrar will have the right to cross-examine the evidence presented by the appellant;

24As previously ordered, The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Rules of Practice and Procedure, (October 2, 2017; amended February 7, 2019) apply to this appeal except where varied by Order of the Tribunal.

LICENCE APPEAL TRIBUNAL

_______________________

Colin Osterberg, Member

Footnotes

1. 1Travel Industry Act, 2002, S.O.2002, c. 30, Sched. D (“TIA”).
2. 2Horse Racing Licence Act, 2915, S.O. 2015, c. 38, Sched. 9 (“HRLA”).
3. 3Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sched. C (“REBBA”).
4. 4Condominium Management Services Act, 2015, S.O. 2015, c. 28, Sched. 2 (“CMSA”).
5. 5Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (“MVDA”).
6. 6McCauley & Sprague, Practice and Procedure Before Administrative Tribunals, at 35:14
7. 7See Ontario Secondary School Teachers’ Federation v. Ontario (Education), 2020 CanLii 75024 (ON LRB) para 61