@B,00021356,OR
@1@Z20050704
@2
Gigliotti v. Conseil d'Administration du College des
Grands Lacs *
[Indexed as: Gigliotti v. Conseil d'Administration du
College des Grands Lacs]
@3
76 O.R. (3d) 561
[2005] O.J. No. 2762
Court File Nos. 716/01 and 521/03
@4
Ontario Superior Court of Justice
Divisional Court
Carnwath, Swinton and Hennessy JJ.
July 4, 2005
@6
- Reasons released in both English and French. Vous trouvez la
version fran‡aise … la p. 581, post.
Administrative law -- Judicial review -- Delay -- Applicants
applying for judicial review of 2001 decision to close
francophone college of applied arts and technology --
Application dismissed on basis of undue delay.
Administrative law -- Judicial review -- Standard of review
-- Applicants applying for judicial review of Minister's
decision to close one of three francophone colleges of applied
arts and technology in Ontario -- Standard of review of
Minister's decision that of patent unreasonableness
-- Minister's decision not patently unreasonable.
Constitutional law -- Protection of minorities -- Applicants
applying for judicial review of Minister's decision to close
one of three francophone colleges of applied arts and
technology in Ontario -- Application dismissed -- Decision to
close college fully consistent with unwritten constitutional
principle of respect for and protection of minorities
-- Minister taking into consideration broad interests of
Franco-Ontarian community and considering effect of closure on
it -- Minister not required to consult with Franco-Ontarian
community before closing college.
The applicants brought an application to quash the 2001
decision of the Minister of Training, Colleges and Universities
to close the CollŠge des Grands Lacs (the "CollŠge"), one of
three colleges of applied arts and technology in Ontario which
provided French-language education. The judicial review
application was filed in November 2001. In December 2002, the
Registrar of the Divisional Court issued a notice of intention
to dismiss the application for delay. The applicants'
solicitors replied that so long as the applicants were
satisfied that negotiations were continuing in good faith, they
would refrain from filing any additional materials, but that in
the event that negotiations were unsuccessful, they would file
supplementary materials to support the application. In February
2003, the solicitors for the respondents put the applicants'
solicitors on notice that the respondents would be raising the
issue of delay on the hearing of the application. The matter
was not perfected until March 2004.
Held, the application should be dismissed.
Judicial review in the nature of certiorari is discretionary,
and the conduct of an applicant for judicial review may
constitute a valid reason for not exercising a discretion to
grant the remedy. Undue delay in pursuing an application for
judicial review can be grounds for refusing the application.
Delay on the part of an applicant of six or more months in the
commencement of an application and/or 12 or more months in the
perfection of an application can be serious enough to warrant
the dismissal of the application. In this case, the delay was
undue. The length of the delay was 29 months in commencing and
perfecting the original application. The applicants knew from
February 2003 that the respondents would be arguing [page562]
delay on the hearing of the application, yet the matter was not
perfected until March 1, 2004. The applicants adopted an
unreasonable position with respect to their demands that the
respondents produce their material and affidavits before the
applicants had perfected thei r application. There would be
enormous prejudice to the Franco-Ontarian community if the
remedy sought by the applicants were granted. Once the decision
to close the CollŠge was taken, the Ministry and the CollŠge
did everything in their power to ensure an orderly transfer of
the CollŠge's responsibility to one of the other two
francophone colleges. To grant the remedies sought by the
applicants would create havoc for the very persons for whom the
applicants claim to speak.
The Minister did not breach the unwritten constitutional
principle of protection of minorities. The decision to close
the CollŠge was fully consistent with that principle. The
Minister took into consideration the broader interests of the
Franco-Ontarian community and considered the effect of the
closure on it. The Minister was not required to consult with
the Franco-Ontarian community before closing the CollŠge.
The standard of review of the Minister's decision was that
of patent unreasonableness. The procedures mandated by the
Ministry of Training, Colleges and Universities Act, R.S.O.
1990, c. M.19 ("MTCU Act") and the Ontario Colleges of Applied
Arts and Technology Act, 2002, S.O. 2002, c. 8 reflect the
processes of policy-making, not adjudication. No reasons are
required to establish or close a college, nor is an appeal
available from such a decision. Section 5 of the MTCU Act, at
the relevant time, provided that the Minister "may establish,
name, maintain, conduct and govern colleges of applied arts and
technology ...". "Maintain" includes the right to change the
physical site, the format, the internal organization of or
continuance of a college. The power to make regulations
establishing a college includes a power to revoke that
regulation and to disestablish or close the college. The
Minister had the power, pursuant to the applicable legislation,
to close the CollŠge by regulations subsequently approved by
the Lieutenant-Governor-in-Council. The Minister did not breach
a duty of procedural fairness in her actions. The decision
whether to open or close a college is a public policy decision
and the powers exercised are legislative or ministerial in
nature. Absent a statutory requirement, there is no obligation
on a Minister to hold public hearings or direct consultations
with the teachers or students prior to closing a college. Such
a decision is not rendered judicial or quasi-judicial because
it is openly opposed. The Minister's actions were not patently
unreasonable.
@5
Lalonde v. Ontario (Commission de restructuration des
services de sant‚) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 505, [2001] O.J. No.
4768, 2001 21164 (ON CA), 208 D.L.R. (4th) 577, [2001] O.J. No. 4767 (Fr.) (C.A.);
Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, [1998]
S.C.J. No. 61, 1998 793 (SCC), 161 D.L.R. (4th) 385, 228 N.R. 203, 55 C.R.R.
(2d) 1, consd
Other cases referred to
Baker v. Canada (Minister of Citizenship and Immigration),
1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th)
193, 1999 699 (SCC), 243 N.R. 22; Bell Canada v. Canada (Canadian Radio-
Television and Telecommunications Commission), [1989] 1
S.C.R. 1722, 1989 67 (SCC), [1989] S.C.J. No. 68, 60 D.L.R. (4th) 682, 97 N.R.
15; Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413
(Div. Ct.); Crawford v. Ottawa Board of Education, [1971] 2
O.R. 179, 1970 385 (ON CA), 17 D.L.R. (3d) 271 (C.A.); Homex Realty and
Development Co. v. Wyoming (Village), 1980 55 (SCC), [1980] 2 S.C.R. 1011, 116
D.L.R. (3d) 1, 1980 55 (SCC), 33 N.R. 475, 13 M.P.L.R. 234; International
Union of Bricklayers and Allied Craftworkers v. Ontario
Provincial Conference of the International Union of Bricklayers
and Allied Craftworkers, [1999] O.J. No. 4031, 107 O.T.C. 68
(S.C.J.); [page563] Janzen v. Platy Enterprises Ltd., [1989]
1989 97 (SCC), 1 S.C.R. 1252, [1989] S.C.J. No. 41, 58 Man. R. (2d) 1, 59
D.L.R. (4th) 352, 1989 97 (SCC), 95 N.R. 81, [1989] 4 W.W.R. 39, 47 C.R.R. 274,
1989 97 (SCC), 25 C.C.E.L. 1, 89 C.L.L.C. 17,011 (sub nom. Janzen v. Pharos
Restaurant); Mount Sinai Hospital Center v. Quebec (Minister of
Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, [2001] S.C.J.
No. 43, 200 D.L.R. (4th) 193, 271 N.R. 104, 2001 SCC 41; R. v.
Board of Broadcast Governors and the Minister of Transport,
1962 223 (ON CA), [1962] O.R. 657, 33 D.L.R. (2d) 449 (C.A.); Retail, Wholesale
and Department Store Union, Local 414 v. Dominion Stores Ltd.,
[1978] O.J. No. 982 (Div. Ct.); Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J.
No. 3, 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002]
SCC 1; Sutcliffe v. Ontario (Minister of the Environment)
(2004), 2004 31687 (ON CA), 72 O.R. (3d) 213, [2004] O.J. No. 3473, 190 O.A.C. 56,
2004 31687 (ON CA), 244 D.L.R. (4th) 392, 9 C.E.L.R.(3d) 1, 20 Admin. L.R. (4th) 239
(C.A.), supp. reasons 2004 34994 (ON CA), [2004] O.J. No. 4494, 191 O.A.C. 370, 10
C.E.L.R.(3d) 176 (C.A.); Thorne's Hardware Ltd. v. R., [1983] 1
S.C.R . 106, 1983 20 (SCC), 143 D.L.R. (3d) 577, 46 N.R. 91 (sub nom. Irving
Oil Ltd. et al. v. National Harbours Board); TransCanada
Pipelines Ltd. v. Beardmore (Township), 2000 5713 (ON CA), [2000] O.J. No. 1066,
2000 5713 (ON CA), 186 D.L.R. (4th) 403 (C.A.) [Leave to appeal to S.C.C. refused
[2000] S.C.C.A. No. 264]; United Food and Commercial Workers
International Union, 617P v. Welling, [1997] O.J. No. 4497 (Div.
Ct.), affg [1997] O.J. No. 2704 (Div. Ct.)
Statutes referred to
French Language Services Act, R.S.O. 1990, c. F.32
Interpretation Act, R.S.O. 1990, c. I.11, ss. 18, 28 [as am.]
Ministry of Training, Colleges and Universities Act, R.S.O.
1990, c. M.19, s. 5 [rep.]
Ontario Colleges of Applied Arts and Technology Act, 2002, S.O.
2002, c. 8, Sch. F, s. 8(1)(d)
Rules and regulations referred to
O. Reg. 28/02 ("Ministry of Training, Colleges and Universities
Act")
O. Reg. 34/03 ("Ontario Colleges of Applied Arts and Technology
Act")
Winding up of the College D'Arts Appliques et de Technologie
des Grands Lacs, O. Reg. 117/03
Rules of Civil Procedure, R.R.O. 1990, Reg. 194
@6
APPLICATION for judicial review of a decision of the Minister
to close a college.
@8
Sean T. McGee, Annie G. Berthiaume and Marc Cousineau, for
applicants.
Stephen F. Gleave and George G. Vuicic, for CollŠge.
Rochelle Fox, Michel H‚lie and William Manuel, for Attorney-
General of Ontario.
@7
THE COURT:--
OVERVIEW
[1] The applicants seek to quash the 2001 decision of the
Minister of Training, Colleges and Universities to close
CollŠge des Grands Lacs (the "CollŠge"). They also seek
mandamus requiring the Minister to re-open the CollŠge. The
application raises three questions: [page564]
(1) Should the application be dismissed for delay?
(2) Did the Minister breach the unwritten constitutional
principle of protection of key institutions for minority
groups?
(3) Did the Minister have the power to close the CollŠge under
the Ministry of Training, Colleges and Universities Act,
R.S.O. 1990, c. M.19 (the "Act" [or "MTCU Act"])?
THE BACKGROUND FACTS
[2] Colleges of applied arts and technology were established
by the Ministry by regulation under the Act. The role of the
Minister is to establish overall policy direction for colleges
in areas of public interest, provide operating and capital
funding, and establish overall financial and performance
accountability measures. The Minister plays no role in the
academic decisions of a college.
[3] The CollŠge was established in 1994 pursuant to the Act.
In 2001, there were 25 colleges of applied arts and technology
across Ontario, three of which provided French-language
education -- CollŠge Bor‚al in Sudbury, la Cit‚ in Ottawa, and
the CollŠge in Toronto.
[4] The CollŠge was governed by a Board of Governors (the
"Board") composed of 17 members. Twelve members were appointed
by the Ontario Council of Regents for Colleges of Applied Arts
and Technology, a Crown agency established under the Act. The
remaining five members included staff, faculty administration
representatives, a student representative and the President of
the CollŠge. The Board represented the community that the
CollŠge served and had the ultimate responsibility for
determining the quality and control of the education programs,
the direction of the CollŠge and ensuring that the CollŠge was
both viable and reflected the interests and values of the
Franco-Ontarian community.
[5] The President of the CollŠge, Mr. Jean-Louis, reported to
the Board and was responsible for overseeing the delivery of
programs and for ensuring that education standards and the
directions of the Board were met. He was assisted by three
Vice-Presidents who oversaw academic matters, student services
and finance and administration.
[6] From 1998 forward, the Ministry obtains annual
performance measures of colleges with respect to four "Key
Performance Indicators" ("KPI"): graduate employment, graduate
satisfaction, employer satisfaction, and student satisfaction.
The data is collected by the survey of graduates and their
employers three times per year and by an annual student survey,
all independently [page565] audited. It is possible to analyze
a college's KPI by looking at trends in the data over a number
of years and to compare the results for that college for a
particular year with the KPI results of other colleges in
Ontario for that year.
[7] Before 1990, French-language college education was
available in six bilingual colleges. In 1989, La Cit‚ was
established in Ottawa as a unilingual French-language college.
In 1994, Bor‚al was established in Sudbury and Grands Lacs was
established in southern Ontario, both as unilingual French-
language colleges.
[8] During the six years that the CollŠge provided college
education and services, it offered programs through three
different models at different periods:
(i) as a "college without walls" focusing on distance
education;
(ii) as a college with a main campus in Toronto, where the
majority of students were taught, together with five
regional access centres which were closed by the CollŠge
during the 2000-2001 academic year; and
(iii) then as a college with a Toronto campus only.
[9] The CollŠge had difficulty in attracting enough students
to deliver the required quality of education to the Franco-
Ontarian community. This led to the closing of the five
sites in London, Windsor, Hamilton, Welland and Penetanguishene
in 2000-2001 permitting the CollŠge to focus on operating as a
viable community college. Student numbers have a direct effect
on funding, on the community needed to create academic
stimulation, on program diversity, on the range and type of
services and on the ability to attract students and teachers.
The CollŠge enrollment started at 80 in 1995, rose to
approximately 180 in 1999 and fell to a September 2001 low of
- In the 2000-2001 academic year, la Cit‚ and Bor‚al had,
respectively, approximately 3,320 and 1,090 full-time post-
secondary students.
[10] Starting in 1998, the Ministry identified concerns about
the CollŠge's financial viability over the long term and its
failure to meet performance targets for enrollment and
administrative costs. To help the CollŠge, the Ministry:
(i) established performance targets for the CollŠge to increase
enrollment, decrease administrative costs as a proportion
of college revenues and maintain a balanced budget (fall,
1998);
(ii) appointed an Advisory Panel to the board to support it in
meeting the performance targets (spring, 1999); and
[page566]
(iii) imposed continued funding conditions requiring the
CollŠge to co-operate with a Ministry-appointed accounting
firm to monitor the finances of the CollŠge (April 2000).
[11] The Ministry also identified concerns about the quality
of education at the CollŠge as indicated by the KPI results.
The results showed:
(i) student satisfaction at the CollŠge fell from 62 per cent
in 1999 to 54 per cent in 2001 while the overall college
system rate had risen from 68 per cent to 75 per cent in
the same period;
(ii) graduate satisfaction in 2001 was 62 per cent while the
overall college system rate was 83 per cent;
(iii) in 2000 (the last year a sufficient sample size was
available for the CollŠge), the graduate employment rate
was 60 per cent compared to the 90 per cent average of the
other colleges;
(iv) the CollŠge's KPIs were lower than those of the next
lowest college, indicating decreasing student satisfaction
and declining graduate employment rates.
[12] The costs of educating the students at the CollŠge were
staggering. The average cost per student in the community
college system is approximately $4,000. The average cost per
student for Bor‚al and la Cit‚ was approximately $8,000. The
cost per student at the start of the 2001-2002 year at the
CollŠge was $113,600 per student.
[13] In the summer of 2000, the Ministry concluded the
CollŠge was not providing quality French-language programs in
its region and that alternative means had to be explored for
the academic year 2002-2003. The Ministry internally considered
how best to provide Francophones in the CollŠge region with
access to quality college programs relevant to their needs
while ensuring self-governance and effective use of tax dollars
by increasing enrollment and improving the quality of service.
In September of 2001, the Ministry discussed with Bor‚al and la
Cit‚ the feasibility of one of them providing permanent French-
language college programs in the Central South-West region
(the "CSW"). Bor‚al expressed an interest in doing so. The
Ministry anticipated the CollŠge would provide its existing
programs until the end of the 2001-2002 academic year.
[14] The CollŠge had set a budget of $6.7 million for the
2001-2002 year based on a projected enrollment of 100 students.
When [page567] school started in early September, the actual
enrollment was 60 students, 41 first-year and 18 second-year.
[15] Historically, the CollŠge knew that by November 1 there
would be a 10 per cent-15 per cent attrition rate in students.
November 1 was the date which the Ministry used to count
students for funding purposes. Thus, the CollŠge expected to
have only 40 or 50 students for the school year, which would
result in a cut to Ministry funding of $600,000, requiring the
CollŠge to cut half of its seven programs.
[16] In early September of 2001, the President and management
team considered closing the CollŠge based on the unexpected low
enrollment, the extraordinary costs and the conclusion that the
education offered was not up to the standards expected of a
community college.
[17] The President concluded the CollŠge did not have the
capacity to deliver the minimum level of education or support
services to students and that the CollŠge could not provide
them with a reasonable chance for success in their studies or
the job market. This view was shared by the Board. The Board
consisted of members of the Franco-Ontarian community.
[18] On October 4, 2001, the Board was presented with a
resolution recommending the CollŠge be closed. The staff and
teacher representatives left the meeting, which resulted in
insufficient members to make up a quorum. The resolution
recommended the CollŠge wind down by allowing the 18 second-
year students to finish the year and by allowing the first-
year students to enroll in other colleges by November 1,
- This resolution was confirmed by the Board with a quorum
on October 17, 2001.
[19] The Minister approved the recommendation of the Board on
October 5, 2001, and approved a compensatory package for
students. The package was designed to assist the second-year
students to complete the academic year at the CollŠge and to
give the first-year students an opportunity to enroll in
another college by November 1 so they would not lose their
academic year. By November 12, 2001, 34 of the 42 full-time
first-year students were placed in other educational
institutions. Eight full-time first-year students decided not
to seek another placement and they joined the 14 full-time
second-year students for a total of 22 full-time students at
the CollŠge.
[20] On October 19, 2001, the applicants moved before Mr.
Justice Pitt to seek an interim injunction to restrain the
CollŠge and Ministry from closing the CollŠge. The applicants,
except for Mr. Leduc, are the Union and its Local President who
represent the academic and support staff at the CollŠge. Mr.
Justice Pitt ordered that the CollŠge and Ministry take no new
steps to [page568] compromise the effectiveness of the decision
of the judge hearing the motion for the injunction on October
24, 2001.
[21] On October 25, 2001, Mr. Justice Spiegel, on consent of
the parties, dissolved Mr. Justice Pitt's order and
established a protocol to allow first-year students to decide
by November 6, 2001, whether to continue their education at the
CollŠge or to choose to attend classes elsewhere.
[22] On December 5, 2001, Madam Justice Lax dismissed the
applicants' motion for an injunction with costs of the motions
to be heard at the application.
[23] Bor‚al began providing French-language post-secondary
education in the CSW area effective the fall of 2002. Bor‚al's
Board of Governors expanded to include four members from the
CSW area. Bor‚al has conducted consultations with francophone
community leaders, representatives of French-language primary
and secondary schools and community organizations, and other
interest groups throughout the CSW area. In addition, it has
established a Community Advisory Committee of eight members
from the CSW region and a governance structure that includes a
Vice-President with responsibility for the CSW region.
[24] By the end of the 2003-2004 academic year, Bor‚al had
accomplished the following in the CSW region:
(i) established a campus in Toronto;
(ii) increased the number of post-secondary programs offered
including the number of two-year diploma programs;
(iii) increased its post-secondary enrollment from 68 in
2002-2003 to 76 in 2003-2004 and to 98 at the start of the
2004-2005 academic year;
(iv) established access centers in Barrie, Hamilton, Toronto,
Welland, London and Windsor and established its Regional
CSW office in London;
(v) offered continuing education and short courses throughout
the region and offered apprenticeship programs through
distance learning modes;
(vi) established ongoing communications with francophone school
boards;
(vii) offered Job Connect services in Toronto, Windsor and
Simcoe/Penetanguishene, to assist primarily youth to find
and keep employment; and [page569]
(viii) opened the Centre de ressources emploi francophone in
Toronto to provide training programs.
[ISSUES]
- Should the application be dismissed for delay?
[25] Unfortunately, the question of delay must be examined in
the light of correspondence exchanged between Nelligan O'Brien
Payne ("NO'B"), solicitors for the applicants, and Hicks
Morley ("HM"), solicitors for the Attorney General for Ontario
and others.
-- November 2, 2001 -- the applicants file for judicial review
in #716/01.
-- December 3, 2002 -- 13 months later, the Registrar of the
Divisional Court issues a notice of intention to dismiss
application #716/01 for delay.
-- December 17, 2002 -- NO'B writes HM saying they filed
material used on the injunction application "to perfect the
application record". The letter goes on to say, "So long as
our client is satisfied that negotiations are continuing in
good faith, we will refrain from filing any additional
materials. However in the event that negotiations are
unsuccessful, we will be filing supplementary materials (in
French) to support this application."
-- February 11, 2003 -- HM writes NO'B pointing out that the
letter of December 17, 2002 alleges perfection of the
record while reserving the right to file additional
material, a position contrary to the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194. HM puts NO'B on notice
that it will not file responding material until told the
record is complete. HM puts NO'B on notice that "the
passage of time and intervening events that have occurred
since the notice of application was served is one reason,
inter alia, that the application should be dismissed".
-- May 2, 2003 -- NO'B writes to HM confirming that settlement
negotiations have failed. NO'B tells HM it will prepare a
second notice of application in French and will add the
issue of whether the Ministry had the statutory authority
to close the CollŠge.
-- August 28, 2003 -- NO'B forwards to HM an application for
judicial review #511/03 issued August 27, 2003. [page570]
-- August 29, 2003 -- HM writes NO'B inquiring about when it
will file the supplementary material in the first
application and asks why they issued the second
application.
-- September 8, 2003 -- HM writes NO'B asking for a reply to
the letter of August 29.
-- September 10, 2003 -- HM writes NO'B admitting service of
the second application for judicial review and advising HM
has been retained.
-- September 12, 2003 -- NO'B writes HM explaining that the
second application raises new and different statutory
grounds and that they have instructions to proceed in
French. NO'B says it will proceed to complete the evidence
and serve the supplementary record within ten days.
-- September 16, 2003 -- NO'B writes the Registrar of the
Divisional Court requesting a bilingual panel. It says it
will not be perfecting the appeal because the parties
intend to proceed to cross-examine on the affidavits before
filing any other material. (Nowhere in the correspondence
or the material filed is there any suggestion that HM had
agreed to this procedure.)
-- September 18, 2003 -- NO'B writes to HM: "Once we obtain
any additional materials you may wish to file, we will
decide whom we need to examine."
-- October 31, 2003 -- NO'B writes to HM and continues to ask
for HM's affidavit material so as to co-ordinate the
holding of the cross-examinations on the affidavits.
-- November 7, 2003 -- HM writes to NO'B and asks when it
might expect NO'B's certificate of perfection.
-- November 25, 2003 -- HM writes to NO'B and inquires after
the certificate of perfection. The letter goes on: "It is
difficult to prepare and provide any response to the
application without knowing whether or not your materials
are complete or even if you plan to proceed to Court with
this matter."
-- November 25, 2003 -- NO'B writes HM refusing to file the
factum and certificate of perfection "until we are in a
position to confirm that the parties are ready to proceed".
[page571]
-- December 9, 2003 -- HM writes to NO'B and repeats its
position that absent a certificate of perfection there is
no duty on the CollŠge or the Ministry to provide its
materials or schedule cross-examinations.
-- December 15, 2003 -- HM writes the Registrar of the
Divisional Court referring to NO'B's letter of September
16, 2003. It writes as follows: "This is to advise that,
contrary to the assertions in Mr. Caza's letter it is not
now, nor has it ever been our client's intention to
proceed to cross-examinations before filing its
materials."
-- January 8, 2004 -- NO'B writes to HM saying it is prepared
to complete its application record and file its certificate
of perfection as required. The letter states that NO'B was
following "the standard procedure" in insisting on
exchanging affidavits and cross-examinations prior to
perfecting its record. It then added, "We take issue with
your insinuation that we have misled the court by proposing
a reasonable course of action in this case. However, in
light of your intransigence on this point, we will be
acting as we described above."
-- February 23, 2004 -- NO'B writes HM advising that Mr. Caza,
the solicitor on the file, has resigned from NO'B. The
letter states that NO'B would perfect its application by
March 1, 2004.
-- March 1, 2004 -- NO'B writes to HM enclosing the
certificate of perfection in the matter.
The law respecting delay
[26] The law has long recognized that judicial review in the
nature of certiorari is discretionary and the conduct of an
applicant for judicial review may constitute a valid reason for
not exercising a discretion to grant the remedy (Homex Realty
and Development Co. v. Wyoming (Village), 1980 55 (SCC), [1980] 2 S.C.R. 1011,
1980 55 (SCC), 116 D.L.R. (3d) 1, at pp. 1033-36 S.C.R.; Retail, Wholesale and
Department Store Union, Local 414 v. Dominion Stores Ltd.,
[1978] O.J. No. 982 (Div. Ct.)).
[27] Undue delay in pursuing an application for judicial
review can be grounds, in the exercise of the court's
discretion, for refusing the application (R. v. Board of
Broadcast Governors and the Minister of Transport, [1962] O.R.
657, 1962 223 (ON CA), 33 D.L.R. (2d) 449 (C.A.), at pp. 670-71 O.R.; [page572]
United Food and Commercial Workers International Union, Local
617P v. Welling, [1997] O.J. No. 2704 (Div. Ct.), affd [1997]
O.J. No. 4497 (Div. Ct.)).
[28] The courts look at three factors to determine whether
they should dismiss an application for judicial review on the
grounds of undue delay:
(a) the length of the delay;
(b) whether there is a reasonable explanation for the delay;
and
(c) whether any prejudice has been suffered by the respondent
or a third party as a result of the delay.
(R. v. Board of Broadcast Governors and the Minister of
Transport, supra, at pp. 670-71 O.R.; International Union of
Bricklayers and Allied Craftworkers v. Ontario Provincial
Conference of the International Union of Bricklayers and Allied
Craftworkers, [1999] O.J. No. 4031, 107 O.T.C. 68 (S.C.J.), at
paras. 28-33)
(a) The length of the delay
[29] The Divisional Court has repeatedly stated that in
judicial review proceedings, the applicant is obliged to
commence and perfect the application as expeditiously as
possible (Retail, Wholesale and Department Store Union, Local
414 v. Dominion Stores Limited, supra, at para. 4; United Food
and Commercial Workers International Union, Local 617P v.
Welling, supra, at paras. 4-6; International Union of
Bricklayers and Allied Craftworkers v. Ontario Provincial
Conference of the International Union of Bricklayers and Allied
Craftworkers, supra, at para. 31).
[30] Indeed, the Divisional Court has held on numerous
occasions that delay on the part of an applicant of six or more
months in the commencement of an application and/or 12 or more
months in the perfection of an application could be serious
enough alone to warrant the dismissal of the application
(Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413
(S.C.J.), at para. 7).
(b) Reasonable explanation for the delay
[31] In this case, there is a partial explanation for the
delay in NO'B's letter of December 17, 2002. Reference is
made to the respondents' promise to continue negotiating so
long as no new legal action was taken. However, NO'B knew from
February 11, 2003 that HM had no intention of filing
supplementary materials until NO'B perfected its application,
and further, went on record that it would be arguing delay on
the hearing of the application. [page573] Confirmation of the
failure of settlement negotiations took place on May 2, 2003.
Perfection did not occur until March 1, 2004.
(c) Prejudice
[32] The respondents submit the CollŠge has suffered
significant prejudice as a consequence of the applicants'
lengthy and unreasonable delay. It asserts that it would cost
over $11 million to re-open the CollŠge, that Bor‚al has
committed to providing French-language post-secondary education
in the area and is doing so and it underlines the difficulty in
recruiting students after an absence of students and staff for
these last three years.
[33] "Finally, in the exercise of the Court's discretion it
is proper to consider whether any useful purpose whatsoever
would be accomplished by setting aside the recommendation and
all proceedings hereto before the board" (R. v. Board of
Broadcast Governors, supra, p. 671 O.R.). It is hard to imagine
a situation where there would be less utility than one where
the CollŠge is ordered to re-open.
[34] We exercise our discretion and refuse to grant the
remedies sought by the applicants by virtue of delay for which
they are, in large part, responsible. We do so for the
following reasons:
(a) The length of the delay is 29 months in commencing and
perfecting the original application.
(b) The applicants knew from February 11, 2003 that the
respondents would be arguing delay on the hearing of the
application. Nevertheless, the matter was not perfected
until March 1, 2004.
(c) The applicants adopted an unreasonable position with
respect to their demands that the respondents produce their
material and affidavits before the applicants had perfected
their application. The applicants' counsel accused the
respondents of being intransigent; the same can be said of
the applicants. Where intransigence governs, the Rules of
Civil Procedure will prevail. It was disingenuous of
counsel for the applicants to suggest to the Registrar of
the Divisional Court that the parties had agreed to a
course of action proposed by the applicants when everything
in the record suggests to the contrary.
[35] There is enormous prejudice to the Franco-Ontarian
community in the CSW Region should the remedy sought by the
applicants be granted. Once the decision to close the CollŠge
was taken, we find both the Ministry and the CollŠge did
everything [page574] in their power to ensure an orderly
transfer of the CollŠge's responsibility to Bor‚al. We find
Bor‚al, in its turn, reacted vigorously and positively to the
challenge of leading the educational requirements of the
Franco-Ontarian community in a college setting in the CSW
region.
[36] We find that to grant the remedies sought by the
applicants would create havoc for the very persons the
applicants claim to speak for.
[37] Therefore, we exercise our discretion and refuse to
grant the application of the applicants, by reason of delay.
[38] In our view, our responsibility does not end at this
point. Should we be wrong in our analysis of the applicants'
delay, we feel it essential to consider the second and third
questions raised by this matter and it is to the second
question we now turn.
- Did the Minister breach the unwritten constitutional
principle of protection of key institutions for minority
groups?
[39] The decision of the Minister to close the CollŠge was a
decision made in the exercise of her discretion. While such a
decision is subject to judicial review, normally a high degree
of deference is given where there is a broadly worded
discretion (Mount Sinai Hospital Center v. Quebec (Minister of
Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, [2001] S.C.J.
No. 43, at paras. 56, 58). However, where the decision concerns
constitutional and quasi-constitutional rights or values, the
court will normally accord less deference. In Lalonde v.
Ontario (Commission de restructuration des services de sant‚)
(2001), 56 O.R. (3d) 505, [2001] O.J. No. 4768 (C.A.), the
Court of Appeal stated that reasonableness or correctness will
often be the appropriate standard for judicial review when
constitutional and quasi-constitutional rights and values are
concerned (at para. 186), although the court never determined
the proper standard of review in that case.
[40] The applicants rely on the unwritten constitutional
principle of protection of minorities, which was articulated by
the Supreme Court of Canada in Reference re Secession of
Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217, [1998] S.C.J. No. 61 and then
further interpreted by the Ontario Court of Appeal in Lalonde,
supra. They argue that the Minister failed to consider the
important role played by the CollŠge in the Franco-Ontarian
community of CSW Ontario and, therefore, the decision to close
the CollŠge should be set aside.
[41] In the Secession Reference, the Supreme Court of Canada
discussed the four organizing principles which underlie the
Canadian Constitution: federalism, democracy,
constitutionalism [page575] and the rule of law, and the
protection of minorities. The court stated that these
principles "inform and sustain the constitutional text" (at
para. 49). While the court stated that primacy must be given to
the written text, the unwritten principles assist in the
interpretation of the text and may allow the courts to fill
express gaps in it (at paras. 52, 53). The court also stated
that these principles may, in certain circumstances, give rise
to "substantive legal obligations" which can limit government
action (at para. 54).
[42] The Court of Appeal in Lalonde further interpreted the
principle of protection of minorities in the light of a
decision by the Health Services Restructuring Commission. This
government agency directed H“pital Montfort to reduce its
health care services to the point that it could not function as
a community hospital or teaching center in the Ottawa-Carleton
region. Montfort was the only hospital in Ontario providing
full-time services in French, and it also played a unique role
in the education and training of French speaking health care
professionals.
[43] There, the Commission had a discretion to act in the
public interest. The Court of Appeal held that in determining
the public interest, the Commission was obligated to consider
the unwritten constitutional principle of respect for and
protection of minorities and to take into account the broader
institutional role of H“pital Montfort in protecting
Francophone culture and language (at para. 180). The
Commission's decision was quashed, both because of a breach of
the French Language Services Act, R.S.O. 1990, c. F.32 and
because of its failure to consider relevant constitutional
values. At para. 181, the court stated,
If implemented, the Commission's directions would greatly
impair Montfort's role as an important linguistic, cultural
and educational institution, vital to the minority
francophone population of Ontario. This would be contrary to
the fundamental constitutional principle of respect for and
protection of minorities.
The court went on to say (at para. 184):
The Commission offered no justification for diminishing
Montfort's important linguistic, cultural, and educational
role for the Franco-Ontarian minority. It said that the
matter was beyond its mandate. The Commission failed to pay
any attention to the relevant constitutional values, nor did
it make any attempt to justify departure from those values on
the ground that it was necessary to do so to achieve some
other important objective. While the Commission is entitled
to deference, deference does not protect decisions,
purportedly taken in the public interest, that impinge on
fundamental Canadian constitutional values without offering
any justification.
Thus, the decision in Lalonde applied the unwritten
constitutional principle to protect an "important" institution
that was "vital to the minority francophone population of
Ontario". [page576]
[44] Counsel for the Minister argued that the proper standard
of review with respect to the application of the unwritten
constitutional principle is patent unreasonableness because of
the nature of the decision that the Minister had to make. As
the Supreme Court of Canada stated in Baker v. Canada (Minister
of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999]
S.C.J. No. 39, 1999 699 (SCC), 174 D.L.R. (4th) 193, the exercise of discretion
must be exercised in a manner consistent with the Constitution
(at para. 53). However, although the Minister was required
to consider the principle of respect for and protection of the
linguistic minority, her decision to close the CollŠge was
polycentric in nature and required her to make a number of
factual determinations and determine their import -- for
example, the importance of the CollŠge to the Franco-Ontarian
community, the impact of closure and the alternatives
available. In such a case, some deference is owed to her
decision.
[45] The applicants argue that the Minister's decision
forces Francophones to use a language other than their maternal
language in order to obtain a college education. They emphasize
the importance of education, and submit that the Minister's
decision to eliminate access to French language education at
the college level in the large geographic area of CSW Ontario
devalues the language and dignity of the Franco-Ontarian
community. They also emphasize that the Franco-Ontarian
community is an extremely vulnerable minority group, which
requires its own institutions in order to survive and to assist
in the struggle against assimilation.
[46] In our view, the decision to close the CollŠge was fully
consistent with the unwritten constitutional principle of
respect for and protection of minorities. In this case, the
Board of Governors of the CollŠge, which included 12
representatives of the Franco-Ontarian community among its 17
members, initiated the decision to close the CollŠge because of
concerns about the quality of education offered. In contrast,
in Lalonde, the decision about the future role of H“pital
Montfort was made by a government agency, despite widespread
protests from the Francophone community. The Commission also
ignored the recommendations of the Regional District Health
Council that the Commission should recognize Montfort's
primary and distinctive functions as a Francophone hospital.
[47] While the applicants argue that the unwritten
constitutional principle requires consultation with the Franco-
Ontarian community, the Lalonde decision speaks of
consideration of the interests of the community (at para. 187).
In this case, the evidence shows that the Minister and Ministry
have taken into [page577] consideration the broader interests
of the Franco-Ontarian community and considered the effect of
the closure on it. When the Minister had to decide quickly
whether or not to accept the recommendation of the CollŠge
Board to close the institution immediately, the Minister
considered the Board's recommendation and its judgment that
the students were not receiving the minimum quality standard of
education. As well, the Minister considered that the Ministry
had already undertaken extensive efforts to improve the
circumstances at the CollŠge without success. Moreover, the
Minister had already concluded that the CollŠge was not
providing quality French language college programs in CSW
Ontario and had begun considering how best to provide such
educational programs, while ensuring continuing self-
governance. To this end, the Minister had started
discussions with Bor‚al and La Cit‚ to explore the feasibility
of one of these institutions providing permanent French
language college programs in CSW Ontario commencing in the
2002-2003 academic year, and Bor‚al had expressed an interest.
[48] The applicants presented expert evidence from Professor
Raymond Breton, a sociologist, that advanced a theory of
"institutional completeness" -- that is, the more minority
institutions in place, the healthier the minority culture.
However, there is no empirical evidence of the unique or
valuable role of the CollŠge in the Francophone culture, as
there was with respect to H“pital Montfort in the Lalonde case.
[49] Indeed, the evidence clearly shows that this is not a
situation where the Minister has closed down an important
institution which is vital to the Francophone minority, as in
the case of Montfort. The quality of health services and
training at H“pital Montfort was never in issue. It offered a
wide range of services that were extensively used by the
Francophone population, and it performed a significant
educational role.
[50] In contrast, there were serious concerns about the poor
quality of the educational experience at the CollŠge. By the
time of the decision to close, the CollŠge had experienced a
steady decline in enrollment. Given that student numbers both
generate the needed funding to operate and create an academic
community, the ability to deliver quality education was
undermined. At the time of closure, programs were limited, and
they were provided to a small and declining number of
Francophone students. Moreover, the CollŠge was not the only
Ontario college providing French language programs: both Bor‚al
and La Cit‚ remained. In addition, the government quickly
entered into an agreement with Bor‚al to deliver French
language college programs in CSW Ontario in substitution for
those offered by Grands Lacs. [page578]
[51] In our view, the Minister did consider the unwritten
constitutional principle of respect for and protection of the
linguistic minority in Ontario, and her decision was consistent
with that principle. The decline in enrollment at the CollŠge
from 155 full-time students in 1997-1998 to approximately 60 at
the commencement of the 2001-2002 academic year, the
deterioration in the quality of education offered, and the
escalation of the costs of providing education demonstrate that
the CollŠge was not a significant institution "vital to the
minority francophone population of Ontario", to use the words
of the Court of Appeal in Lalonde, supra, to describe H“pital
Montfort. Therefore, this ground of review fails.
- Did the Minister have the power to close the CollŠge under
the Ministry of Training, Colleges and Universities Act,
R.S.O. 1990, c. M.19 (the "Act")?
The standard of review
[52] The Minister's decision must be given the highest level
of deference by the court. The MTCU Act and the Ontario
Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c.
8, Sch. F ("OCAAT Act")are silent as to how colleges are to be
established, maintained or closed. These matters are left to
the Minister's discretion. The Supreme Court of Canada has
decided: "decisions of Ministers of the Crown in the exercise
of discretionary powers should generally receive the highest
standard of deference, namely patent unreasonableness": Suresh
v. Canada(Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1, [2002] S.C.J. No. 3, 208 D.L.R. (4th) 1, at pp. 4-29
S.C.R., pp. 2-25 D.L.R.; Baker v. Canada, supra, at p. 856
S.C.R., p. 227 D.L.R.; Sutcliffe v. Ontario (Minister of the
Environment) (2004), 2004 31687 (ON CA), 72 O.R. (3d) 213, [2004] O.J. No. 3473
(C.A.), at p. 7 (QL).
[53] The only fetter on the Minister's discretion is the
requirement for Lieutenant-Governor-in-Council approval of the
exercise of the Minister's discretion (Thorne's Hardware Ltd.
v. R., 1983 20 (SCC), [1983] 1 S.C.R. 106, 143 D.L.R. (3d) 577, at pp. 113-15
S.C.R., pp. 582-84 D.L.R.).
[54] The Minister's decision to close the college is a
policy decision based on a number of factors. We find the
procedures mandated by the MTCU Act and the OCAAT Act to
reflect the processes of policy-making, not adjudication. No
reasons are required to establish or close a college, nor is an
appeal available from such a decision. We find the standard of
review to be patent unreasonableness (TransCanada Pipelines v
Beardmore (Township), 2000 5713 (ON CA), [2000] O.J. No. 1066, 186 D.L.R. (4th)
403 (C.A.), at pp. 445-49 D.L.R., leave to appeal to S.C.C.
refused [2000] S.C.C.A. No. 264) [page579]
[55] At the time the decision was made to close the CollŠge,
s. 5 of the MTCU Act read:
5(1) Subject to the approval of the Lieutenant Governor in
Council, the Minister may establish, name, maintain, conduct
and govern colleges of applied arts and technology that offer
programs of instruction in one or more fields of vocational,
technological, general and recreational education and
training in day and evening courses and for full-time or
part-time students.
[56] "Maintain" includes the right to change the physical
site, the format, the internal organization or continuance of a
school, within the context of a secondary school operated by a
board of education. Our Court of Appeal held there was no
connotation of permanence to be attached to the word
"establish". Nor did the "maintain" impose a duty to stay the
same. We find no reason to give a different meaning to
"maintain" in the context of a college (Crawford v. Ottawa
Board of Education, 1970 385 (ON CA), [1971] 2 O.R. 179, 17 D.L.R. (3d) 271
(C.A.), at pp. 187-90 O.R.).
[57] Section 28(g) of the Interpretation Act, R.S.O. 1990, c.
I.11 provides:
(g) where power is conferred to make by-laws, regulations,
rules or orders, it includes power to alter or revoke
the same from time to time and make others[.]
We find the power to make regulations establishing a college
includes a power to revoke that regulation and to disestablish
or close the college.
[58] We reject the submission it is necessary for a statute
to specifically grant the Minister power to close a particular
institution for the sole reason that other statutes do provide
for such a power. Our Supreme Court has held that the mere fact
other statutes explicitly provide for a certain power cannot be
interpreted to mean that a Minister requires the explicit grant
of that particular power (Bell Canada v. Canada (Canadian
Radio-Television and Telecommunications Commission), [1989] 1
S.C.R. 1722, 1989 67 (SCC), [1989] S.C.J. No. 68, 60 D.L.R. (4th) 682, at pp.
1756-58 S.C.R., pp. 707-08 D.L.R.).
[59] A flurry of regulations followed the Minister's initial
decision to close the CollŠge:
(a) O. Reg. 28/02 made under the MTCU Act filed January 28,
- This regulation authorized the Minister to continue
the process of winding-up the CollŠge.
(b) O. Reg. 34/03 made under the OCAAT Act, 2002, filed
February 11, 2003. This general regulation was passed under
[page580] the OCAAT Act to replicate the legal framework
that existed under the MTCU Act. The regulation re-
established all of the colleges, including Grand Lac.
(c) O. Reg. 117/03 made under the OCAAT Act, 2002, filed April
1, 2003. This regulation continued the authority to wind-up
the CollŠge and duplicated the original winding-up
regulation passed under the MTCU Act.
(d) Section 8(1)(d) of the OCAAT Act, which was proclaimed in
force on April 1, 2003, provided for the closing of a
college.
[60] These amendments and regulations prompt the applicants
to submit that the explicit inclusion of a power to close
colleges under the OCAAT Act, together with the amending
regulations, indicates that there was no such power under the
MTCU Act. We reject this submission in as much as the
Interpretation Act provides in s. 18 that an amendment of an
Act is not a declaration that the law under the Act was
different from the law as it has become under the amended Act.
The passing of clarifying amendments to make express or
explicit in legislation what had been previously implicit is a
recognized concept in our law (Janzen v. Platy Enterprises
Ltd., 1989 97 (SCC), [1989] 1 S.C.R. 1252, [1989] S.C.J. No. 41, 59 D.L.R.
(4th) 352, at pp. 1285-87 S.C.R., pp. 376-77 D.L.R.).
[61] Our conclusion on this latter submission by the
applicants does not detract from our view that, in the first
instance, the Minister had the power, pursuant to the
legislation in place, to close the CollŠge by regulations
subsequently approved by the Lieutenant-Governor-in-Council.
[62] We reject the submission the Minister breached a duty of
procedural fairness in her actions. The decision whether to
open or close a college is a public policy decision and the
powers exercised are legislative or ministerial in nature.
Absent a statutory requirement, there is no obligation on a
Minister to hold public hearings or direct consultations with
the teachers or students prior to accepting the board's
recommendation to close the college. Such a decision is not
rendered judicial or quasi-judicial because it is openly
opposed. No adjudication took place (TransCanada Pipe Lines
Ltd., supra, at pp. 446-49 D.L.R.).
[63] We reject the applicants' submission that mandamus
should issue requiring the Minister to re-open the CollŠge or
to keep the CollŠge open until the Minister takes certain steps
specified by the applicants, such as "exhaustive
consultations". A writ of mandamus is issued to compel the
performance of an [page581] imperative statutory duty. We find
no such duty in the matter before us and no basis upon which
mandamus can be granted.
[64] In conclusion, we do not find the Minister's actions to
be patently unreasonable. Not only were the Minister's actions
not patently unreasonable, they were, in our view,
reasonableness itself.
[65] For the above reasons, the application is dismissed.
[66] The parties have 15 days to make brief written
submissions as to costs.
Application dismissed.
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