CITATION: Jajo v. Ontario (Transportation), 2021 ONSC 5227

DIVISIONAL COURT FILE NO.: 062/19

DATE: 20210728

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, LEDERER and MEW JJ.

BETWEEN:

BASAM JAJO

Applicant

– and –

ONTARIO (MINISTRY OF TRANSPORTATION)

Respondent

Lidiya Yermakova, for the Applicant

Christopher P. Thompson, for the Respondent

HEARD at Toronto (by videoconference): 23 February 2021

MEW J.

REASONS FOR DECISION

[1] Pursuant to s. 58(6) of the Highway Traffic Act, R.S.O. 1990, c H.8 (the “HTA”), no person shall hold themself out as being qualified to provide driving instruction for compensation unless the person is licensed to do so.

[2] In 2008, Basam Jajo obtained a “DI Licence” from the Ministry of Transportation, allowing him to work as a driving instructor. In September 2015, that licence was revoked immediately, “pending review”, as a result of Mr. Jajo having been charged with the sexual assault and sexual exploitation of one of his former driving students (the “revocation decision”).

[3] Despite Mr. Jajo’s subsequent acquittal on those charges, the revocation was maintained, and he was informed that a new application would be required if he wished to regain a DI Licence. Although no formal application was made by Mr. Jajo for a new licence (or for a reinstatement of his previous licence), the Ministry elected to proceed as if such an application had been made.

[4] On 7 January 2019, that “application” was denied (the “re-application decision”).

[5] Mr. Jajo brings this application for judicial review of the revocation and re-application decisions.

Factual Background

[6] The requirements for obtaining a licence to provide driving instruction for compensation are set out in the HTA and in O. Reg 473/07: Licences for Driving Instructors and Driving Schools.

[7] On 10 September 2015, Mr. Jajo was criminally charged with sexual assault and sexual exploitation, contrary to sections 271 and 153 of the Criminal Code, R.S.C. 1985, c. C-46. The complainant had been a student of Mr. Jajo’s.

[8] Four days later, on 14 September 2015, Mr. Jajo received a letter from Judy Taggart, the Deputy Registrar of Motor Vehicles, advising him that, as a result of the charges, his DI Licence was being revoked, effective immediately, “pending review of information received by the Ministry”. After making reference to the charges, and an undertaking that Mr. Jajo had given not to conduct in-car driving instruction to any female student, the letter continued:

The charges raise a serious concern about whether you have treated students in an inappropriate manner and about whether you are a fit and proper person to act as a driving instructor.

Ms. Taggart’s letter concluded with an invitation to Mr. Jajo to forward any information that he would like the Ministry to consider in its review.

[9] Between October and December 2015, there were exchanges of correspondence between representatives of the Ministry and Mr. Jajo’s lawyer. In a 6 November 2015 email, a Ministry representative made reference to the provisions of section 10 of O. Reg. 473/07, which addressed the revocation of a DI licence and, in particular, the Ministry’s authority to revoke a DI licence if a licensee is not a fit and proper person to be a driving instructor.

[10] An internal Ministry email dated 17 December 2015, made reference to a representation by Mr. Jajo’s lawyer challenging the approach taken by the Ministry, given that Mr. Jajo had not been convicted, and that the basis for the revocation was simply an allegation. The email continues:

The lawyer asked about whether he could send us documentation to persuade us to change our minds. I said that he could send such documentation and we would consider it. However, I could not direct him as to what exact documentation he should send and what effect it would have on our decision-making.

The lawyer asked about the policy underlining our decision. I advised that we did not have fixed policies concerning what sanctions to apply in specific situations.

The lawyer asked about appealing the decision. I advised that there was no statutory right of appeal and that any challenge would need to occur through judicial review.

[11] On 25 July 2017, Mr. Jajo was acquitted of all criminal charges, following a trial. The Ministry was so advised by Mr. Jajo’s lawyer, on 16 October 2017.

[12] By an email dated 20 October 2017, a Ministry representative advised Mr. Jajo’s lawyer that Mr. Jajo’s DI Licence had been revoked, not suspended. The email continued:

If Mr. Jajo wishes to again become a licensed DI, he is entitled to make a new application for consideration by the Ministry.

[13] During the latter months of 2017 and in January 2018, there were communications between Ministry staff and Mr. Jajo regarding the reinstatement of his DI licence. Mr. Jajo did not accept the Ministry’s position that he had to start afresh by making a formal application to once again be licensed as a driving instructor.

[14] On 5 February 2018, Dianne Hultay, the Acting Manager of the Driver Programs office wrote to Mr. Jajo informing him that (despite Mr. Jajo not having submitted an application for a new DI Licence) she was proposing to refuse his application to have his DI Licence reinstated, and providing him with 30 days to respond to his proposal. The reasons for the proposed refusal included:

a. Regulatory violations which had been admitted under oath during Mr. Jajo’s criminal trial;

b. A history of prior regulatory sanctions which predated the criminal charge and which had previously resulted in a warning from the Ministry;

c. Inaccurate statements given under oath, specifically with respect to whether Mr. Jajo had previously been subject to “discipline proceedings” and whether he had ever met with a Ministry employee, Michelina Martin; and

d. Allegedly holding himself out as a licenced DI following the September 2015 revocation.

[15] On 8 May 2018, Mr. Jajo’s lawyers responded on his behalf, submitting that:

a. The initial revocation decision was not proper;

b. Mr. Jajo had been acting on the direction of his employer and under duress when he committed the regulatory violations about which he had testified under oath during his criminal trial;

c. Viewed in the proper context, Mr. Jajo’s testimony at trial had not been misleading or inaccurate with respect to whether he had been subject to prior “discipline proceedings”;

d. Mr. Jajo had met the Ministry employee, Michelina Martin (providing evidence that he had done so); and

e. Denying that Mr. Jajo had held himself out as a driving instructor while subject to the temporary revocation.

[16] By letter dated 7 January 2019, the Ministry’s delegated decision-maker, Kim MacCarl (Manager Driver Programs Office) notified Mr. Jajo of her decision to refuse his application for a DI licence for reasons including the following:

a. The September 2015 revocation decision had been justified by (1) the criminal charges against Mr. Jajo which had raised “concerns” about his conduct; and (2) the recognizance not to conduct any in-vehicle instruction to any female students under the age of 21 which Mr. Jajo had entered into in November 2016 while the criminal charges against him were pending;

b. Mr. Jajo’s claim that he had violated O. Reg 473/07 under duress was invalid in the absence of evidence or any allegation that he had been subject to a threat of bodily harm or death;

c. Mr. Jajo had given misleading and inaccurate testimony during his criminal trial and had perjured himself when he denied that he had ever been subject to Ministry “disciplinary proceedings”;

d. Mr. Jajo had held himself out as a DI on two occasions while not validly licensed to do so; and

e. Mr. Jajo had claimed that he was one of the “top DIs in Ontario” which was a false, or at best, exaggerated claim.

[17] Following receipt of Ms. MacCarl's decision, Mr. Jajo commenced this application for judicial review on 1 February 2019.

Issues

[18] There is no statutory right of appeal from either the revocation decision or the reapplication decision.

[19] The principal grounds raised in support of Mr. Jajo’s request for this court to intervene are:

1. The initial revocation decision was non-compliant with the applicable regulations and was procedurally unfair to the applicant;

2. The revocation decision was unreasonable;

3. The reapplication decision was procedurally unfair;

4. The adjudicator in the reapplication decision exceeded her jurisdiction in making a finding of perjury;

5. Should the application be denied in whole or in part because of undue delay on the part of Mr. Jajo in bringing his application for judicial review?

[20] The respondent counters that, regardless of its merits (which the respondent disputes), the application should be dismissed because of undue delay on Mr. Jajo’s part in commencing it.

Standard of Review

[21] The reformulation of the standard of review articulated by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, starts from the presumption that the applicable standard of review for all aspects of an administrative decision will be reasonableness (Vavilov, at para. 25). While the applicant argues that the standard of correctness should apply to the adjudicator’s finding that the applicant had given perjured evidence about prior disciplinary issues during his criminal trial, the parties agree that on all other issues involving matters of substance, the reasonableness standard applies.

[22] The applicant’s submission that a correctness standard should apply to what he characterises as a “finding” of perjury arises from the following passage in the re-application decision:

In the February 5, 2018 refusal proposal, the Ministry stated that misleading and inaccurate testimony raised doubts as to whether or not a person is a fit and proper person having regard for his character, integrity, and past conduct to be a DI, as paragraph 15 of s.4(1) of O. Reg 473/07 requires. I agree that an individual who perjures themselves is not a fit and proper person to be a DI. [emphasis added]

[23] The applicant argues that the adjudicator effectively concluded that Mr. Jajo perjured himself when he made statements during his trial which she described as not “truthful and forthright”, and in doing so exceeded her jurisdiction by trespassing into the exclusive territory of the criminal law.

[24] Although Vavilov (at para. 53) retains a correctness standard of review for “questions regarding the jurisdictional boundaries between two or more administrative bodies”, as a general proposition, jurisdictional questions are no longer regarded as a distinct category attracting a correctness, rather than a reasonableness, standard of review (Vavilov, at paras. 65-68).

[25] While the adjudicator’s choice of terminology could have been more circumspect, I do not regard her as having made a finding that Mr. Jajo committed the offence of perjury. Her comments are more appropriately characterised as being “superficial or peripheral to the merits” (Vavilov, at para. 100); a minor misstep.

[26] Furthermore, even if I agreed that there was substance to the applicant’s submission on the meaning of the adjudicator’s comment, its effect would not be that of a question regarding the jurisdictional boundaries between two administrative bodies.

[27] Accordingly, except as discussed in the next paragraph, the reasonableness standard of reviews applies throughout.

[28] Vavilov did not, however, disturb the previously existing line of jurisprudence which held that no deference is afforded to administrative decision-makers on questions of procedural fairness. Rather, the reviewing court must simply decide whether procedural fairness requirements have been met. Vavilov, at para. 77, offers this guidance:

It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.

Undue Delay

[29] The respondent argues that the application to quash the 2015 revocation decision should be dismissed for delay.

[30] An applicant for judicial review is under an obligation to commence and perfect an application for judicial review in a timely manner. Failure to do so is an independent basis for denial of the application, regardless of the merits of the case: Balanyk v. Greater Niagara General Hospital (2002), 161 O.A.C. 204 (Div. Ct.), at para. 3.

[31] In determining whether to dismiss an application for delay, the court will consider (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: Gigliotti v. Conseil d’Administration du College des Grands Lacs (2005), 2005 23326 (ON SCDC), 76 O.R. (3d) 561 (Div. Ct.) at para. 28.

[32] The respondents point to a number of authorities from this court holding that delay on the part of an applicant of six or more months in the commencement of an application could be serious enough on its own to warrant dismissal of the application: Michipicoten First Nation v. Ontario (Minister of National Resources and Forests), 2016 ONSC 6899, at para. 66; Gigliotti at para. 30, Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014, at para. 21; Jeremiah v. Ontario (Human Rights Commission) (2008), 83 Admin. L.R. (4th) 126, at para. 45.

[33] In the present case, the respondent asserts that the application for judicial review was commenced approximately three years and four months after the 14 September 2015 letter sent by the Ministry to Mr. Jajo. Furthermore, the respondent complains that the notice of application does not expressly seek to set aside or quash the revocation decision, and that it was only upon receipt of the applicant’s initial factum in September 2019, some four years after the revocation decision, that such relief was first articulated.

[34] Were it in fact the case that the applicant had delayed three or more years before seeking review of the Ministry’s decision, I might agree with the respondent. However, the difficulty, which the respondent cannot, in my view, overcome, is that the Ministry cannot point to any communication that could be properly characterised as a decision, revoking Mr. Jajo’s DI Licence.

[35] The letter of 14 September 2015 informed Mr. Jajo that his DI Licence was being revoked “pending review of information received by the Ministry”. In other words, his licence was suspended. He was invited to forward any information that he would like the Ministry to consider in its review. In December 2015, a Ministry employee told Mr. Jajo’s lawyer that he could send documentation to the Ministry for consideration. Granted, he was told at that point that there would be no right of appeal and that judicial review would be a remedy. But at that stage, the door to further dialogue still appeared to be open. There had been no notification that the “review of information received by the Ministry” had been concluded and a decision made.

[36] It was only when, following notification to the Ministry that Mr. Jajo had been acquitted and wanted his licence reinstated, he was told, in an email dated 20 October 2017, and without further explanation, that his DI Licence had been revoked, not suspended. But even then, the Ministry engaged in further dialogue until February 2018, only then advising Mr. Jajo that it proposed to refuse an application which he had not, in fact, made, to issue him a new DI Licence.

[37] Accordingly, the very earliest date that the respondent could reasonably argue that time began to run would seem to be October 2017.

[38] In his response to that letter, Mr. Jajo’s lawyers expressly challenged the propriety of the revocation of Mr. Jajo’s licence.

[39] The Ministry’s decision of 7 January 2019 brought to an end Mr. Jajo’s efforts to reclaim his DI Licence through the administrative process. Within a month of that decision, he had commenced his application for judicial review.

[40] Given the ongoing dialogue, in which all issues going back to the initial provisional revocation of Mr. Jajo’s licence remained in play, it would be grossly unfair to Mr. Jajo to deny him the opportunity to seek judicial review based on delay.

[41] To the extent that an explanation for the delay is required, it falls largely at the feet of the Ministry and, in particular, the manner in which the Ministry chose to deal with the revocation and licence reinstatement process.

[42] I would add that the Ministry has failed to establish any prejudice resulting from such delay that could properly be attributed to Mr. Jajo.

[43] As to the respondent’s argument that the application for judicial review did not provide adequate notice that the revocation decision was being challenged, the applicant concedes that the relief claimed in the notice of application for judicial review is broadly stated. However, the grounds include that the DI Licence was revoked “without any notice, opportunity to respond, or any other procedural fairness or natural justice considerations”. That is sufficient, particularly when considered in the context of the extensive exchange of communications with the Ministry and the making of submissions to the adjudicator that preceded the notice of application for judicial review.

[44] I would, accordingly, reject the Ministry’s argument that the application should be dismissed for delay.

The Revocation Decision

[45] The letter of 14 September 2015 made no reference to any authority under which the decision to revoke Mr. Jajo’s DI licence, pending further review, was made. In the reapplication decision, however, Ms. MacCarl stated that the initial revocation decision had been made pursuant to the authority of s. 10(1)(e)(iv) of Regulation 473/07. That provision permits the Minister to revoke a DI licence if, at any time while licenced as a driving instructor, “the licensee is not a fit and proper person to be a driving instructor, having regard to his or her character, integrity and past conduct”.

[46] The applicant submits that if the initial revocation decision was, in fact, made under the authority of s. 10(1)(e)(iv), the Ministry breached the mandatory procedural fairness requirements set out in Regulation 473/07.

[47] Section 35(1) of the Regulation provides that where the Minister proposes to revoke a licence or to refuse to renew a licence under s. 10(1)(e)(iv), prior to making such a decision, the Minister shall serve a notice of his or her proposed decision on the applicant or licensee, together with a summary of the reasons for such a proposed decision. The applicant or the licensee then has 30 days after being served with such a notice to submit in writing to the Minister any information that he or she considers relevant to the Minister’s proposed decision. The Minister is then required to review and consider any information submitted before making a final decision.

[48] None of the statutorily mandated procedural fairness obligations were complied with by the Minister prior to making the 14 September 2015 revocation decision or, for that matter, prior to Mr. Jajo’s lawyer being notified by the 20 October 2017 email that Mr. Jajo’s DI licence had been revoked rather than suspended.

[49] The respondent, while conceding that the applicant was not afforded the exact process prescribed by s. 35 of Regulation 473/07 before his DI licence was revoked, argues that any resulting procedural unfairness was remedied by providing the applicant with the opportunity to make submissions about the revocation in the course of challenging the Ministry’s proposed denial of his application for a new DI licence.

[50] The Ministry further points out that it flagged, as early as 6 November 2015, in an email to Mr. Jajo’s lawyer, that there were “serious concerns” about Mr. Jajo’s “inappropriate behaviour with his female students”.

[51] In McNamara v. Ontario (Racing Commission) (1998), 1998 7144 (ON CA), 164 D.L.R. (4th) 99 (Ont. C.A.) at para. 26, the Court of Appeal held that procedural defects can be cured by a subsequent hearing in which natural justice is accorded. In McNamara, a dispute arose involving the owner/groom of some horses involved in competition. Three track judges refused to let certain horses be transferred into Mr. McNamara’s name and, following an episode in which Mr. McNamara verbally abused and intimidated the judges, he was informed that he was suspended for 30 days and that all horses under his direction at the event were scratched. Under the applicable rules, he had a right to appeal his suspension to the Ontario Racing Commission. He had a three-day hearing in front of the Commission. There was also a cross-appeal seeking an increased suspension. The Racing Commission decided to increase the period of suspension to 60 days. An initial application for judicial review from the commission’s decision was heard and dismissed by a single judge of the Divisional Court. Leave was given to appeal that decision to a full panel which concluded that while there had, arguably, been an infringement of the rules of natural justice on the part of the track judges as a result of their failure to hold a proper hearing, that decision had been stayed pending an internal appeal, and a suspension only imposed after a full, open and fair hearing before the Commission at which witnesses were called, counsel were present and arguments were presented. It was under those circumstances that any procedural defects in the hearing before the track judges and any resulting prejudice were cured by the fact that the subsequent hearing took place with the benefit of every procedural safeguard.

[52] The circumstances of the applicant and the nature of the decision under review are also to be considered when determining whether an initial lack of procedural fairness can be repaired by a subsequent restoration of due process. In Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225 (Div. Ct.), Ratushny J. held, at para. 44, that where a tribunal is authorised to proceed in a certain way and does not do so and thereby violates a person’s right to procedural fairness in a situation where his or her profession is at stake, the decision resulting from that flawed process should not be allowed to stand.

[53] By contrast with the circumstances in McNamara, the revocation decision had an immediate effect on Mr. Jajo. There was no stay pending review. There was not, as previously discussed, even a final decision taken on the revocation before the process morphed into an application for a new licence, with Mr. Jajo bearing the onus of establishing that he met the requirements to be licensed rather than the Ministry bearing the onus to show that he was not so qualified.

[54] As the already-quoted passage in paragraph 77 of the decision in Vavilov reminds us, in considering the impact of a breach of procedural fairness, the importance of the decision to the individuals affected is a pertinent factor. Although the process under s. 35 of Ontario Regulation 473/07 is not the equivalent of a hearing before a professional body, where, as in the present case, the consequences of a decision are significant, involving the very right of an individual to pursue his or her chosen livelihood, a higher degree of scrutiny is appropriate and, in the event of a breach of natural justice, the appropriate remedy is to quash the decision.

[55] In the unusual circumstances of this case, there was never a reasoned decision given for the revocation of Mr. Jajo’s licence. This is not merely a case where the Ministry failed to follow its own procedures. Rather, it made a decision, which it did not tell Mr. Jajo about at the time, and when he was informed in a rather back-handed fashion through the 20 October 2017 email, no attempt was made to explain why. That decision removed Mr. Jajo’s ability to resume earning his livelihood as a driving instructor. Section 35 of Regulation 473/07 required, at a minimum, that the Ministry provide a summary of the reasons for its decision, yet it did not.

[56] The Ministry itself comes close to acknowledging that the revocation was improper. In her decision of 7 January 2019, the adjudicator reasons that:

Even if Mr. Jajo’s DI licence was revoked improperly and Mr. Jajo remained licensed, once the Ministry came into possession of information regarding Mr. Jajo, including the November 2016 recognizance and that which was revealed in the R. v. Jajo transcripts, the Ministry’s February 5, 2018 refusal proposal would have been a revocation proposal instead.

[57] Accordingly, I do not accept that because the subsequent reapplication decision was reached after following the process in s. 35 of Regulation 473/07, the procedural irregularities that occurred in connection with the revocation decision are of no consequence.

[58] Rather, there was a profound lack of procedural fairness in the manner in which the Ministry purported to revoke Mr. Jajo’s DI licence.

[59] As a result, the decision to revoke Mr. Jajo’s DI Licence should not be allowed to stand.

The Re-Application Decision

[60] When Mr. Jajo’s criminal charges were dismissed, if the Ministry had elected to pursue the revocation of his licence, he would have been in the position of responding to a process in which the Ministry had the burden of proving that he was not a fit and proper person to hold a DI Licence. Instead, and to his prejudice, he was placed in a position of having to prove that he was a fit and proper person to hold a DI licence, against a backdrop of his licence having already been revoked by a deeply flawed process, based on an apparent finding that he was not a fit and proper person.

[61] It can be seen that the re-application decision was closely intertwined with the revocation decision. So much so that the entire re-application process and decision was tainted by what had preceded it.

[62] Having determined that the revocation decision should not be allowed to stand, it follows that when the Ministry embarked on an evaluation of Mr. Jajo’s “application” for the reinstatement of his licence, his DI Licence should have been in good standing, making the re-application process redundant. I do not accept, as the adjudicator implied, that the re-application process could somehow have been validated or legitimised by rebranding it as a revocation proceeding. As already mentioned, in a revocation proceeding it is the Ministry that bears the onus of proving that an individual is not a fit and proper person to hold a DI Licence rather than the applicant having the burden of showing that he is.

[63] Unfortunately, the Ministry’s procedural irregularities did not end when the applicant was told that his DI Licence had been revoked.

[64] The Ministry then took the informal and ongoing communications between the Ministry and Mr. Jajo to constitute an application for DI licensure, despite not requiring him to submit a formal application or to prove that he met the routine requirements of registration. By so doing, the Ministry has no credible answer to the allegation that it did not view Mr. Jajo’s “application” with an open mind. Rather, as the applicant submits, the Ministry’s actions give the appearance of having rendered a decision for the purpose of curing the obvious defects of the revocation decision, thereby once and for all foreclosing Mr. Jajo from retaining a DI Licence.

[65] Justifying the revocation decision, Ms. MacCarl wrote as follows in the re-application decision:

It is a requirement of s. 10(1)(e)(iv) of O. Reg 473/07 that licensee must be a “fit and proper person to be a driving instructor, having regard to character, integrity, and past conduct.” A person who is charged with a serious crime, such as sexual assault, contrary to s. 271 of the Criminal Code (Canada), raises concerns about whether he or she is a “fit and proper” person to be a DI. Additionally, as part of his release conditions Mr. Jajo was not to instruct female students.

Additionally, in November 2016, Mr. Jajo became bound by a recognizance not to conduct any in-vehicle instruction to any female students under the age of 21 years, with the exception of one named person. Section 10(1)(d)(i)(F) of O.Reg 473/07 states that the Ministry may revoke a DI license if the licensee is subject to a court order, conditions of parole or undertaking to an officer in charge, prohibiting him or her from being alone with, in the presence of or in proximity to persons under any age that may be specified in the order, conditions or undertaking.” [sic]. This provides further grounds for the revocation of Mr. Jajo’s license

[66] By the time of Ms. MacCarl’s decision Mr. Jajo had been acquitted. Even with the benefit of knowing that, Ms. MacCarl cites the fact that Mr. Jajo had been charged, and that in connection with that charge he had accepted as a term of his interim release that he would not conduct in-vehicle instruction to female students under the age of 21, as evidence that he was not a “fit and proper” person. Neither the revocation decision or the attempted justification for that decision provided by Ms. MacCarl demonstrate any recognition of the presumption of innocence. Nor, as the applicant argues, is any consideration given to the architecture of the governing regulation. Whereas a conviction or a finding of guilt of sexual assault or sexual exploitation would be sufficient to justify revocation (or the denial of a new licence) under section 10(1)(f) of the Regulation, no provision exists with respect to circumstances where charges have been laid and are pending. I pause to note that the applicant does not argue that the Ministry was not justified in imposing an interim suspension while the charges were pending.

[67] The Supreme Court in Vavilov, at para. 92, reminds reviewing courts that “administrative justice” will not always look like “judicial justice”. The applicant would have us pick apart the re-application decision on a finding-by-finding basis. Given my determination that the revocation decision cannot stand (as a consequence of which Mr. Jajo’s DI Licence should have been reinstated) and my conclusion that the re-application decision was irreparably compromised by the revocation decision that had preceded it, by the procedural irregularities that have been identified, and by the reversal of the onus of proof that Mr. Jajo was a fit and proper person to be a DI, it is not necessary for this court to conduct such analysis.

[68] Suffice it to say, however, that although I have accepted that her unfortunate use of the word “perjury” was not intended to be an impermissible finding on her part that the crime of perjury had been committed by Mr. Jajo, Ms. MacCarl’s comments about Mr. Jajo’s trial testimony nevertheless convey the appearance of a mind that may already have been set against Mr. Jajo.

Disposition

[69] I agree with the applicant that this is one of the rare circumstances in which allowing either of the decisions to stand would amount to an abuse of process and bring the administration of justice into disrepute.

[70] I would allow the application for judicial review, set aside the revocation and re-application decisions, with the result that Mr. Jajo’s DI Licence should re reinstated forthwith.

Costs

[71] The parties are agreed that costs of $15,000 should follow the event, payable within 30 days. Accordingly, the respondent shall pay that sum to the applicant.

Mew J.

I agree _______________________________

H. Sachs J.

I agree _______________________________

Lederer J.

Released: 28 July 2021

CITATION: Jajo v. Ontario (Transportation), 2021 ONSC 5227

DIVISIONAL COURT FILE NO.: 062/19

DATE: 20210728

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. SACHS, LEDERER and MEW JJ.

BETWEEN:

BASAM JAJO

Applicant

– and –

ONTARIO (MINISTRY OF TRANSPORTATION)

Respondent

REASONS FOR DECISION

MEW J.

Released: 28 July 2021