Citation: Best Payless Truck Driving School Ltd. v. Superintendent, under the Private Career Colleges Act, 2005, 2022 ONLAT 13710

Date: 2022-06-16

Appeal of Proposal to Refuse to Renew Registration and Immediate Suspension of Best Payless Truck Driving School Ltd. issued by the Superintendent, Private Career Colleges Act, 2005 pursuant to the provisions of the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched L

Between:

Best Payless Truck Driving School Ltd.

Appellant

and

Superintendent, Private Career Colleges Act, 2005

Respondent

DECISION AND ORDER

Adjudicators: Laura Goulet, Member D. Gregory Flude, Vice-Chair

Appearances:

For the Appellant: John Blommesteyn, Paralegal

For the Respondent: Glenn Frelick, Counsel

Heard by Videoconference: June 1-7, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1. Best Payless Truck Driving School Ltd. (the “appellant”) appeals the Notice of Proposal to Refuse to Renew Registration (“NOP”) and the Notice of Immediate Suspension (“NOIS”) issued by the Superintendent, Private Career Colleges Act, 2005, (the “respondent”) pursuant to the provisions of the Private Career Colleges Act, 2005, S.O. 2005, c. 28 Sched. L (the “Act”) dated October 28, 2021, citing ss. 14(1) and 18(2) of the Act.

2. The respondent proposes to refuse to renew the appellant’s registration on the basis that the appellant breached a condition of its registration, failed to comply with provisions of the Act and its regulations, and the respondent is no longer satisfied that the appellant meets all requirements set out in subsection 14(1) of the Act.

3. The respondent immediately suspended the appellant’s registration on the basis that the appellant continued to operate in contravention of the Act and the immediate suspension of the registration would be in the interests of the protection of the students and prospective students of the private career college (“PCC”) and to prevent further contraventions of the Act.

B. ISSUE and results

4. The issue to be decided is: does the evidence support the respondent’s NOP and NOIS?

5. The onus is on the respondent to prove the reasons for the NOP and the NOIS on a balance of probabilities.

6. For the reasons set out below, we find that the respondent has met its onus and that the NOP should be carried out. Given that the same facts support the NOP and the NOIS and given our decision that the respondent should carry out the NOP, there is no need to address the issue of the NOIS.

C. LAW

7. Pursuant to s. 14(1) of the Act, the Superintendent of Private Career Colleges must register a proposed PCC and renew its registration if she is satisfied, among other things, that it will operate in compliance with the Act and the regulations. Pursuant to s.15(1), the Superintendent may impose conditions on a registrant.

8. Section 18 of the Act allows the Superintendent to suspend or revoke a registration if, among other reasons, the Superintendent believes that a requirement outlined in section 14(1) is 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.

9. Pursuant to s. 19(6) of the Act, the Tribunal has the power to order the Superintendent to carry out the proposal, to refrain from carrying out the proposal, to attach conditions to it, or to take such other action as the Tribunal considers appropriate.

D. pRELIMINARY ISSUEs, motions and objections

Concerns about communications:

10. The appellant raised concerns about communications between the respondent and the appellant directly, and not through its legal representative. Prior to the hearing, the respondent served documents on the appellant’s legal representative and on the appellant’s director personally. These documents had previously been served on the appellant’s director in an unbound form prior to the legal representative’s retainer. The later communication served the bound and tabbed hearing brief. The appellant took exception to this action. The parties were reminded that all future communications should be between legal representatives only.

11. The appellant’s representative advised the Tribunal that the respondent’s actions of delivering bound copies of documents the appellant already had, had caused the appellant’s director such emotional upset that he could not attend the hearing. The Tribunal indicated that it did not endorse the appellant’s representative’s submissions about the reason for his client’s non-attendance. Without questioning the appellant’s representative’s subjective bona fide understanding for his client’s non-attendance, the purported psychological condition was not supported by any independent documentation. We advised the appellant’s representative, that in the absence of supporting evidence, it was the Tribunal’s position that the appellant’s director was not present because he chose not to attend. No supporting documentation was forthcoming by the end of the hearing.

Judicial notice of dictionaries.com:

12. The appellant asked the Tribunal to take judicial notice of the definitions found on the website “dictionaries.com” in order to define terms that are not specifically defined in the Act or its regulations. It submitted that the website was established in 1995 and is based on Random House Unabridged Heritage Dictionary supplemented with content from Collins English Dictionary and American Heritage Dictionary. It also quoted statistics from the internet with respect to the large number of Canadian users of this website.

13. The Tribunal held that there was no need to take judicial notice of the website “dictionaries.com.” Rather, where there was a term that was not defined in the Act or its regulations, we would hear submissions from the parties with respect to the meaning that should be attributed to it.

Jurisdiction of the Tribunal – operator logs:

14. The appellant challenged the Tribunal’s jurisdiction to hear the respondent’s arguments in the NOP with respect to keeping operator logs. It argued that the Tribunal is restricted to hearing appeals of the Highway Traffic Act (the “HTA”). It submitted that the appellant has never been convicted of failing to maintain operator logs under the HTA and therefore an appeal is not necessary. It requested that the Tribunal “strike” the paragraphs from the respondent’s documents that make refence to the issue of the operator logs.

15. The Tribunal pointed out that the respondent has an onus to prove that the appellant acted in contravention of the law. The respondent is alleging that the applicant failed to maintain student and/or operator logs in contravention of s.23(4) of the Act by not delivering the program as approved and required by the respondent’s directive. In these circumstances, the Tribunal held that the issue of the operator logs is relevant and is within the Tribunal’s jurisdiction.

Request to call witnesses:

16. During the hearing, the appellant asked for leave to call two witnesses, despite its indication at the start of the hearing that it had no witnesses.

17. The first was a lay witness, Masood Warraich, who may have had evidence about an inspection in Cornwall on April 13, 2021. The second purported to be an expert in the Ministry of Transportation (“MTO”) mandatory program for training new truck drivers, the MELT program.

18. We agreed with the respondent’s submissions that a timetable was established in the CCRO for disclosure of witnesses and will-say statements and the appellant had chosen to submit no documents or witness lists within those timelines. Having said that, we were of the view that Mr. Warraich may have relevant evidence and we were prepared to hear his evidence on the following terms:

(1) The appellant provide a will-say statement of Mr. Warraich’s expected evidence by 9:00 a.m. the next morning, Friday, June 3; and

(2) Mr. Warraich would not be called to testify before Monday, June 6.

19. With respect to the expert witness, we did not permit the appellant to call expert evidence at this late stage. In addition to not following the timetable in the CCRO, the appellant had not complied with Rule 10 of the Tribunal’s Common Rules of Practice & Procedure regarding expert reports and witnesses. In our view, to permit an expert at this late stage would be prejudicial to the respondent. We noted that the issue of compliance with the MELT program was raised in the NOP on October 28, 2021, and the full MTO MELT program was included in the respondent’s documents. The appellant had ample notice that it was in issue.

Objection to admissibility of evidence:

20. Alexandra Angelidis, an investigator and a designate of the respondent, testified about a site visit at 17383 South Branch Road in Cornwall. As she started to discuss what she viewed in the rooms at that location, the appellant objected. It asserted that the respondent’s delegates conducted a warrantless search of several rooms in the building. The Tribunal had previously heard evidence that there were people sleeping on the floor in these rooms. The appellant submitted that any testimony from the designates about the interior of the rooms violated the search powers in s. 38(4) of the Act.

21. Section 38(4) provides that a designate shall not enter any part of a premises that is used as a dwelling without a warrant unless the occupant consents to the entry. The appellant asserts that the room in which the person was sleeping was a dwelling and the occupant of the room was the person sleeping. We disagree. In our view, simply using a room as a temporary sleeping space does not make it a dwelling. Further, even if it were a dwelling, based on the evidence we had heard so far, the occupant was the appellant. Its sign was over the front of the premises and its truck was parked at the rear. Its local manager, Mr. Warraich, advised that graduates from the Etobicoke program were brought to Cornwall for extra in-cab time. Mr. Warraich gave permission, on behalf of the appellant, for the designates to enter the rooms. We found no violation of s. 38(4).

22. We also accepted the submissions from counsel for the respondent that, while there may be remedies for breach of s. 38(4), nothing in the Act provides that any evidence found as a result of a warrantless search is inadmissible. The appellant did not advance a Charter argument for exclusion of evidence, despite questions from the Tribunal asking him to clarify the remedy he was seeking. He kept his submissions squarely within the Act and s. 38(4).

E. EVIDENCE AND ANALYSIS

23. The respondent called six witnesses. The appellant chose not to call any evidence and did not cross-examine two of the respondent’s key witnesses.

24. The appellant relied solely on the doctrine of laches, which is an equitable remedy. In our view, the Tribunal has no jurisdiction to grant equitable relief. It is a well accepted principle that an administrative Tribunal has only the powers conferred to it by statute. Pursuant to s. 96(3) of the Courts of Justice Act, RSO 1990, c C.43, only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided.

25. The appellant submits that the catch-all provision in s. 19(6)(d) giving the Tribunal the authority to direct the Superintendent to “to take such other action as the Tribunal considers appropriate” imports equitable principles. We disagree. In our view, the wording in question is limited to directing the Superintendent to take such other action as is permitted by the Act. It does not extend our jurisdiction beyond remedies available in the Act, and certainly not into an area that is in the exclusive purview of the superior courts of the Province.

26. Even if the Tribunal did have the jurisdiction to grant equitable relief, we find that the doctrine of laches does not apply in this case. The respondent amassed information and took action within approximately seven months, which in our view is not an unreasonable period of time. Although the investigators in this case were also Provincial Offences officers, any time limits in bringing charges under the Provincial Offences Act have no application to this case, contrary to the appellant’s argument. The investigations involved in this case dealt with the issue of the refusal to renew the appellant’s registration as a PCC, and not with respect to the potential for quasi criminal sanctions.

27. In the circumstances of this case, the only evidence presented at the hearing was the evidence of the respondent, which we accept. It was factual evidence supported by documentation, which was uncontroverted. We review that evidence below.

28. The appellant was registered as a PCC on February 20, 2018. The registration was for the “Tractor-Trailer (A)” program at one location: 25 Claireport Crescent in Toronto, Ontario.

29. Ron Grisbrook, who was an inspector for the respondent, conducted a facility inspection and an educational session with the appellant on January 11, 2018, just prior to the appellant’s registration. He reviewed with the appellant, among other things, the Act and the regulations, the instructor qualification forms to be completed and the rules about advertising. The appellant confirmed in an email dated January 29, 2018 that he completely understood everything.

30. Mr. Grisbrook conducted a compliance inspection in October of 2019. He completed an inspection report on November 14, 2019 identifying twenty two categories of non compliance. When the appellant did not comply with the issues identified, the Superintendent issued a Compliance Order dated December 29, 2019. Subsequently the Superintendent issued a Notice of Contravention on February 13, 2020 with the result that the appellant was required to pay $9,000.00 in fines for three separate contraventions.

31. In March 2021, it came to the respondent’s attention that the appellant was operating, advertising and offering unapproved truck driver training at a campus in Cornwall, Ontario. In April of 2021 designates of the Respondent attended Cornwall and conducted enquiries pursuant to s. 38 of the Act. As a result of the investigation, the NOP dated October 28, 2021 was issued.

32. The NOP was issued based on five contraventions pursuant to s. 18 of the Act:

(1) Misleading advertising;

(2) Breach of condition: training at an unapproved campus;

(3) Breach of condition: MELT standard and hours of service logs;

(4) Unapproved training during COVID; and

(5) Obstruction of s.38 inquiries.

Misleading advertising

33. Section 16(1) of O. Reg. 415/06 under the Act (the “Regulation”) prohibits any advertisement of a PCC from containing a statement, image or video that misleads or is likely to mislead the public or that guarantees successful completion of a vocational program offered at the college.

34. Section 18(1) of the Regulation prohibits any officer, director, employee or agent acting on behalf of the college from disseminating a false or misleading oral statement, image or video or from making a statement guaranteeing successful completion of a program.

35. Evidence was presented at the hearing with respect to three advertisements for the appellant’s college which contravened these sections of the Regulation.

36. First, an advertisement was put in evidence of a Kijiji ad from March 2021 offering “Class A to Z” truck driving training by the appellant in Cornwall, Ontario. This would have led students or prospective students to believe that the appellant had received approval for and could offer training at the Cornwall site, which was not the case.

37. Second, there was a video on TikTok@paylesstruckschool advertising A to Z truck training in Cornwall by experienced trainers, again likely to mislead students to believe that the appellant had received approval at the Cornwall location. This video was in the Punjabi language and was translated by Benish Choudhry, a compliance analyst and designate of the respondent, whose first language is Punjabi.

38. Third, there was a video on TikTok@paylesstruckschool advertising full truck training, falsely stating that the truck driving school was twenty years old and indicating that the passing rate is 100 percent, contrary to the Regulation. This video was also translated from the Punjabi language by Ms. Choudhry.

39. In an email dated August 18, 2021, the appellant confirmed that TikTok@paylesstruckschool was their user account.

40. The uncontroverted evidence of one of the respondent’s witnesses was that a password is required to post something on a person’s TikTok account. The inference we draw is that the appellant posted the advertisements or allowed someone to post the advertisements on TikTok on its behalf.

Breach of condition: training at an unapproved campus

41. Section 23(6) of the Act prohibits a PCC from making a substantial change to a vocational program that it has been approved to provide without the further approval of the Superintendent. Section 13(1) of the Regulation defines a substantial change, among other things, as a “change in the mode of delivering the program.”

42. The respondent called documentary evidence to demonstrate that the appellant was only approved and registered at one location, i.e. 25 Claireport Crescent, Toronto Ontario.

43. As indicated above, the appellant advertised via Kijiji and TikTok that it was offering vocational programs in Cornwall, Ontario, an unapproved site.

44. On April 21, 2021, Benish Choudhry made a test call to the telephone numbers listed on a sign on the building at 17383 South Branch Road in Cornwall, Ontario, which could be seen from one of the advertisements. The sign identified “Best Payless Truck Driving School” and listed Chani Khattra as the contact person. Chani Khattra is one of the appellant’s Directors.

45. Ms. Choudhry asked for “Chani.” She posed as an individual whose husband was a prospective student enquiring about the program. The person who answered the phone did not deny they were “Chani” but instead replied “yes, talk.”

46. Two of the respondent’s investigators were also present for the phone call, and it was audio recorded.

47. Ms. Choudhry advised that her husband had started a program in Smith Falls but did not want to finish the program as he was dissatisfied with the instructor. Chani suggested that Ms. Choudhry’s husband go to Cornwall as his “other location” is there. He advised that her husband would have to start the course over again.

48. On April 22, 2021, Ms. Angelidis, Ms. Choudhry and Ms. Di Nino attended the government test drive site in Cornwall. They saw a truck with the appellant’s name on the door and a man inspecting the truck prior to conducting his driving test. They conducted an interview of the supervisor at the Cornwall drive test centre. That supervisor advised that the centre only accepted drive test bookings for PCCs within a 50 km radius. She further indicated that the appellant’s contact person, Mr. Warraich, had advised her that it had secured an office and a yard in Cornwall, and he provided her with addresses in writing. The supervisor provided these addresses to the respondent’s designates together with Mr. Warraich’s phone number.

49. Ms. Choudhry observed 7 to 10 men with a paper in their hand at the test drive site walk up to a man in the passenger seat of a Corolla, about a meter away from her. After one of the men completed his driving test, the man from the car came out and gave him a hug, congratulating him.

50. The designates next attended at the address provided by the supervisor, 17383 South Branch Road in Cornwall. They saw a sign on the building for “Best Payless Truck Driving School.” It was the same sign that was in the TikTok advertisement. There was a blue truck parked at the back of the building with “Best Payless Truck Driving School” located on its door. One of the phone numbers on the door of the truck also matched the number on the sign. Ms. Di Nino testified that this phone number matches the number listed for the appellant in the Superintendent’s internal database for the PCCs, “PARIS.”

51. Once in the office, the designates identified themselves and advised that they were conducting a site visit pursuant to s. 38 of the Act. They spoke to Mr. Warraich, who Ms. Choudhry recognized as the same man who was in the passenger seat of the Corolla at the test drive centre. In the office there was a reception desk, chairs, a telephone, pens, and a notebook with a schedule written in it. A blank document with “Best Payless” letterhead on it was located in one of the rooms.

52. Mr. Warraich advised that the appellant provided extra in-cab training in Cornwall for students who had completed their Class A component at the Etobicoke location. Following the supplemental training, the students go for their drive test at the Cornwall drive test centre. He said that the MELT program was done at the Etobicoke office, which was where the student files were. Although in-cab training was done in Cornwall, Mr. Warraich said he did not have any student files, instructor qualification forms or extra driver training logs. Mr. Warraich indicated that Mr. Khattra had hired him as the manager to maintain the location in Cornwall because the students were taking their drive test there.

53. Mr. Warraich provided consent and accompanied the designates through the building. There were a number of rooms off a corridor, which were fairly empty of furniture. Approximately six rooms contained sleeping bags on the floor with nobody occupying the room. In one room they found a man sleeping on the floor in a sleeping bag. Mr. Warraich advised that some students came from out of town the day before a drive test for extra practice and they would stay there to save money.

54. Section 1(1) of the Regulations defines “campus” as a location at which a PCC offers one or more vocational programs. We accept the respondent’s submissions that this definition does not exclude a situation where a PCC only offers part of a vocational program, such as in-cab training.

Breach of condition: MELT standard and hours of service logs

55. Effective July 1, 2017, the MTO required all persons seeking to obtain a Class A commercial driver’s license to complete a mandatory entry level training program that is compliant with the Commercial Truck Driver Training Standard (Class A) published by the MTO in 2016 (the “MELT” standard).

56. The MTO MELT standard outlines the training requirements including performance elements, competencies, and the number of training hours required for each of the components (i.e. in-class, in-yard, behind the wheel).

57. At the time of registration, the appellant had one approved program titled: Tractor-Trailer-A. The program was approved with the following condition of program approval pursuant to s. 23(4) of the Act:

The Registrant must be compliant with MTO’s requirements to gain a Class A driver’s license. Registrant will be responsible for registering the Registrant’s PCC information in MTO’s web-based system once it becomes available on May 1, 2017. Until MTO’s system becomes available, the PCC is required to maintain a list of all students who complete the Tractor-Trailor MELT program and AZ Program and enter each student’s program completion in the system once it is available.

58. 8.1.33 of the MELT standard sets out a mandatory condition that the graduate maintains a complete, legible and accurate driver’s daily log that fully complies with the regulations. There is an exemption in s. 18 of Reg 555/06 of the HTA with respect to the personal log where the driver drives within a 160 km radius of the starting location, however the operator must hold the log in this circumstance.

59. On August 13, 2021, Nancy Di Nino, an investigator and designate of the respondent, requested from the appellant copies of all daily student driver logs or, should students not maintain driver logs, copies of all operator logs (the appellant being the operator).

60. The appellant did not provide the logs requested, but instead provided daily inspection logs and training records. The appellant did not provide the logs prescribed under Reg 555/06 and therefore did not comply with the MELT standard. As a result, the appellant breached the conditions of its registration as it is a condition of its registration to provide the program in accordance with the MELT program.

Unapproved training during COVID

61. On March 13, 2020, in response to the Pandemic, the respondent sent a memorandum to the PCCs offering them a temporary option to provide alternative training measures via online, distance, or other alternative methods of instruction. PCCs who were considering providing an alternative means of training had to first seek approval from the MTO for virtual online classes, and then submit an attestation for approval by the respondent. The respondent indicated that it expected to hear from the PCCs who would be suspending their operations.

62. On April 22, 2020, and again on April 28, 2020, Mr. Grisbrook sent emails to the appellant requesting the status of the school as it related to the delivery of vocational training. On April 28, 2020, the appellant responded by stating that it had suspended all operations and would remain that way until the province lifted the state of emergency. The appellant further advised that it was not seeking an alternative delivery option at that time.

63. On June 12, 2020, the Ministry of Colleges and Universities announced a pilot project which allowed students who had been unable to complete their program as a result of the Pandemic, to continue their program starting on July 2, 2020

64. Mr. Grisbrook explained the pilot project to the appellant in an email dated June 21, 2020. On June 22, 2020, the appellant advised Mr. Grisbrook that it intended to reopen on July 2, 2020 and listed its proposed method of training, which consisted of in-person teaching. On June 26, 2020, Mr. Grisbrook sent an email to the appellant, reminding it that the pilot project does not include the delivery of in-person theory classes. Mr. Grisbrook also pointed out to the appellant that the MTO had been granting approval for online theory since March for those who had submitted an application and that to his knowledge the appellant had not submitted an application or submitted the required attestation.

65. The appellant did not submit an attestation until over one year later, on July 2, 2021.

66. In April of 2021, Nancy Di Nino accessed the MTO database to see how many of the appellant’s students had completed their MELT training throughout the Pandemic, between July 2020 and April 2021. She learned that 84 students had completed MELT training during this period of time. She indicated that no students should have completed the training during this time as the appellant had not received the respondent’s approval and in-person theory training was prohibited. Ms. De Nino further indicated that the appellant must have entered the data into the database as only approved PCC owners have the ability to enter data.

Obstruction of s.38 inquiries

67. Section 38(6) of the Act requires a person to answer questions, to produce a document, records or other thing or to provide assistance in a manner and within the period specified by the Superintendent or designate.

68. Section 38(10) of the Act prohibits a person from hindering, obstructing or interfering with the Superintendent or designate conducting an inquiry or examination, refusing to answer questions on a matter relevant to the inquiry or examination or providing the Superintendent or designate with information on relevant matters that the person knows to be false or misleading.

69. On August 13, 2021, Ms. Di Nino made a request for documents from the appellant pursuant to s. 38 including records of all advertisements and copies of all daily student driver logs or operator logs. Ms. Di Nino also asked the appellant to describe the nature of the operations at the Cornwall, Ontario location and what presence and purpose the appellant had at that location.

70. The appellant replied in an email dated August 18, 2021 that it never had any active operations in Cornwall. At one point it had been thinking of opening an additional location, however decided not to. Taking into account the facts set out above, we find that this statement is false and misleading.

71. Daily student driver logs or operator logs were not provided to Ms. De Nino.

72. After viewing the advertisements that had been provided by the appellant, Ms. De Nino noticed that the TikTok advertisements regarding Cornwall had been removed from the appellant’s account. When she asked the appellant whether any videos had been deleted, the appellant replied in an email on August 30, 2021 that it had not deleted any advertisements from TikTok. In the circumstances, we find that this statement is false. The two TikTok ads discussed above had been removed.

73. Section 17 of the Regulation requires PCCs to maintain copies of advertisements and a translation for advertisements that are published in a language other than French or English. As indicated, Ms. Di Nino could no longer access the TikTok videos and some of the videos were in a language other than French or English and there were no translations provided.

F. Conclusion

74. Taking into account the cumulative effect of the five contraventions of s. 18 outlined above, as well as the significant number of enforcement measures required in a relatively short period of time, the respondent concluded that the appellant was not adhering to the Act, was not delivering training as approved and was not operating in accordance with honesty and integrity, therefore jeopardizing the safety of students and the public. The respondent felt that serious enforcement actions were necessary to ensure students’ confidence in the PCC system.

75. We agree with the respondent’s conclusions. In all of the circumstances, we find that the respondent has proven the grounds to refuse to renew the application set out in the NOP on a balance of probabilities and on that basis, the NOP should be carried out.

G. CONDITIONS

76. Despite the fact that the appellant made no submissions with respect to conditions, we feel that we should address them. The respondent in its submissions asked us to note that conditions were not appropriate, taking into account the history of noncompliance, and the habitual and ongoing compliance issues since the appellant was first registered in February of 2018. To this we would add the deliberate attempts to cover up the operation in Cornwall and the removal of the ads from the TikTok account. This level of dishonesty does not leave us with any confidence that conditions would be enforceable and that the appellant would abide by them.

H. ORDER

77. We direct the respondent to carry out the proposal to revoke the appellant’s registration as a private career college pursuant to s. 18(2) of the Act.

LICENCE APPEAL TRIBUNAL

Laura Goulet, Member

D. Gregory Flude, Vice-Chair

Released: June 16, 2022