CITATION: Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board, 2022 ONSC 1608

DIVISIONAL COURT FILE NO.: 482/21

DATE: 2022/03/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Morgan and D.L. Edwards JJ

BETWEEN:

Canada Christian College and School of Graduate Theological Studies

Applicant

– and –

Postsecondary Education Quality Assessment Board and Her Majesty the Queen in the Right of Ontario as Represented by the Minister of Training, Colleges and Universities also known as the Minister of Colleges and Universities

Respondents

Matthew Diskin and Kristin AuCoin, for the Applicant

Heather Mackay, for the Respondents

HEARD at Toronto by videoconference: February 14, 2022

Sachs J.

[1] The Applicant, Canada Christian College, has been granted certain naming and degree granting rights by an act of the Ontario legislature. In December of 2020 legislation received Royal Assent that permitted the Applicant to call itself a “university” and to grant Bachelor of Science and Bachelor of Arts degrees. Schedule 2 of the December legislation stipulated that it would come “into force on a day to be named by proclamation of the Lieutenant Governor.”

[2] The Minister of Colleges and Universities (the “Minister”) asked the Postsecondary Education Quality Assessment Board (the “Board”) to provide recommendations regarding the appropriateness of the Applicant’s name being changed to include the term “university” and to provide recommendations regarding the Applicant’s “capacity and readiness to have expanded degree granting authority”.

[3] The Board conducted both reviews and sent two reports to the Minister. As summarized in their covering letter to the Minister the first report found that the Applicant was “not ready for the use of the term ‘University’” and the second concluded that the Applicant was “not ready for expanded degree granting.”

[4] The Board reports containing their recommendations were sent to the Minister in May of 2021. After receiving the reports Ministry staff prepared a Decision Note for the Minister that attached the reports. The Note also outlined the background regarding the Applicant’s request and the findings and recommendations of the Board. It addressed the public’s reaction to the Applicant’s request, which it described as “broadly negative”, primarily because the Applicant’s president “openly holds Islamophobic, transphobic and homophobic views” and that “[o]verall, the general feedback received was that university status and expanded degree-granting privileges should not be provided to an institution that does not meet the anti-discriminatory and anti-hate speech principles outlined in the Ontario Human Rights Code”. The Note pointed out that the Board did not consider these concerns as its review had focused on quality assurance issues, not policy considerations. The Note contained the Ministry staff recommendation, which was for the Minister to recommend against proclaiming either the degree granting or name change amendments to the Applicant’s governing legislation at this time.

[5] The Minister agreed with the recommendations of the Board and the Ministry and recommended against proclaiming the legislation at this time.

[6] This is an application for judicial review by the College seeking to challenge both the Board’s and the Minister’s decisions. According to the College, the Minister’s decision to seek input from the Board regarding the legislation at issue was ultra vires the Post-secondary Education Choice and Excellence Act, 2000, S.O. 2000, c. 36 (the “PSA”); the Board’s implementation of the process was unfair and tainted by bias; the Board’s findings were unreasonable; and the Minister’s decision to recommend against proclamation was also unreasonable. The Applicant requested that this court order the Minister to prepare materials to effect proclamation of the legislation at issue. Fundamentally, the Applicant submits that the actions of the Minister and the Board undermined the will of the legislature.

[7] For the reasons that follow I would dismiss the application. In summary, the Minister had clear authority under s. 7(3)(a) of the PSA to refer the Applicant’s request for legislative amendments to the Board for review. That section requires the Board to review “other matters referred to it by the Minister” . The Board’s reports and recommendations are not reviewable by this court as they are advisory and not binding. The Minister’s decision not to recommend proclamation was legislative, not adjudicative in nature; thus he owed the Applicant no duty of procedural fairness. The decision involved policy considerations, was not made for an improper purpose, and was reasonable.

Factual Background

The Applicant

[8] The Applicant (also referred to as “CCC”) is a degree granting institution located in Whitby, Ontario. It was established in 1999, prior to the passage of the PSA. At that time the only way a degree-granting institution could be established was through legislation. The Applicant’s constituent statute is the Canada Christian College and School of Graduate Theological Studies Act, 1999, S.O. 1999, c. Pr2 (the “CCC Act”). The Applicant is authorized to offer bachelor’s, master’s and doctorate degrees in the areas of theology, religious education, Christian counselling, divinity and sacred music.

Ontario passes the PSA

[9] In October of 2001, the PSA came into force. It continued to allow institutions to offer post secondary school degrees if permitted to do so by legislation and it established a new licensing process that allowed an institution to apply for the Minister’s written consent to call itself a university or grant university degrees. Where the Minister granted their consent, no legislation was required. The PSA established the Board, which is a quality assurance advisory body.

CCC seeks to amend the CCC Act

[10] In March 2019 Ministry staff met with CCC staff exploring the possibility of amending the CCC Act. In July, the President of CCC, Dr. Charles McVety, wrote to the Minister requesting legislative amendments to the CCC Act so that CCC could be called a “university” and issue any degree, certificate or diploma (later limited to Bachelor of Science and Bachelor of Arts degrees).

The Ministry advises CCC that it will need to apply to the Board

[11] On October 10, 2019 Ministry Chief of Staff, Mr. Doug Brewer, sent a text message to Dr. McVety advising him that amending legislation could not be passed without an application from CCC to the Board. According to the Applicant, Mr. Brewer also told Dr. McVety that if he got the application to the Board going, they would get it approved; that the Board only makes non-binding, private recommendations; and that the process is “super quick and painless”.

[12] The Applicant alleges that on November 1, 2019, at an in-person meeting, James Wallace, Chief of Staff of the Premier’s Office told Dr. McVety that the government was committed to the legislative amendment and that “even if a street car were to hit me” the legislative changes would occur.

[13] On November 18, 2019 Ministry staff provided the Minister with a document outlining the options for achieving the legislative changes CCC sought. It noted that the approach of pairing legislative amendments with Board reviews was taken in the case of similar requests from Redeemer University (“Redeemer”) and Tyndale University (“Tyndale”).

[14] In February of 2020, according to the Applicant, Dr. McVety had a phone call with the Minister during which the Minister said:

Well, this is what I would say to you, Charles. And we’ve had some of these discussions before. Number one, the information that comes to me for recommendation is up to me ultimately to determine it. It’s a recommendation, it’s not final. That does not finalize the process. The process of [the Board] however, is one that is supposed to be iterative, if you will, in nature, where they are not there to say yes or no. They’re there to work with you to help you get ultimately to where an individual would want to go, provided there is permission to do it, which we know in this case, there is.

[15] On January 31, 2020 Dr. McVety emailed the Minister stating that the “[Board] if [is] for Ministerial Consent only” and that “[CCC] has chosen to pursue a simple legislative amendment, not ministerial consent.”

[16] On March 11, 2020 the Minister indicated to Dr. McVety that the Ministry would require that CCC submit a “name change application” to the Board [in order to allow CCC to call itself a “university”].

[17] On July 8, according to CCC, the Chief of Staff of the Premier’s Office indicated that the legislated amendments would be included in an upcoming bill. He requested that CCC submit an application to the Board in order for the outcome to be “more politically attractive.”

[18] On July 10, 2020 CCC submitted a document to the Board called “Name Change Application for a Private Organization Seeking Ministerial Consent under the Post-Secondary Education Choice and Excellence Act, 2000”. The Board instructed CCC that it should prepare the application in accordance with the “2019 Manual for Private Organizations Applying for Ministerial Consent” (“2019 Manual”). On July 20, 2020 CCC confirmed that the cover document for this “Use of University” application was incorrect and that CCC was pursuing legislative changes, not Ministerial consent. The Board received the revised “Use of University” application on July 28, 2020.

Minister’s Referral to the Board

[19] On August 6, 2020 the Minister made a formal request to Dr. Brown, the Board’s CEO, pursuant to subs. 7(3) of the PSA, asking that the Board “provide recommendations regarding the appropriateness of the institution’s name being changed to include the term ‘university’” and “review and provide recommendations related to the institution’s capacity and readiness to have expanded degree granting authority so that it may offer a Bachelor of Science and a Bachelor of Arts.” The letter noted that CCC “is currently seeking to amend its legislative Act” to allow for this.

[20] On September 15, 2020 Dr. Brown indicated in an email to Dr. McVety that the Use of University application was proceeding and that CCC “ha[s] all the bases covered”. He requested that CCC submit an “Organizational Review” application regarding the expanded degree-granting authority. The next day Dr. McVety emailed asking about documents to submit.

[21] On September 25, 2020 CCC submitted the Organizational Review application to the Board.

[22] The Board appointed Dr. Ronald Bond as chair of the Panel for CCC’s application for an Organizational Review and a review for its use of the term “university.” Dr. Bond was tasked with reviewing both, providing his opinion, and making recommendations.

The Board makes CCC’s application public

[23] On August 25, 2020 Ms. Jennifer Andreae, of the Board Secretariat, emailed Dr. McVety to follow-up on a phone conversation “about whether I could post the application for nomenclature change etc... as is on our website” and to “double check with you first before I post it.”

[24] On September 28, 2020 the Board published on its public-facing website an unredacted version of CCC’s Organizational Review application.

[25] Towards the end of October, 2020, CCC alerted the Board that the Organizational Review application that had been posted online contained sensitive information. Eight days later Dr. Brown sent apology letters to members of CCC’s administration whose personal information was made public.

Bill 213 is passed and receives Royal Assent

[26] While the Board’s review was ongoing, the Ministry began the process of preparing the proposed legislative amendments.

[27] On October 6, 2020 Bill 213, An Act to reduce burdens on people and businesses by enacting, amending and repealing various Acts and revoking a regulation, 1st Sess, 42nd Leg, Ontario, 2020, received first reading. It amended CCC’s constituent statute to grant the changes CCC sought. It also included amendments to the home statutes of Tyndale and Redeemer, which sought expanded degree-granting authority and to call themselves universities and whose requests were referred to the Board for advice and recommendations.

[28] On December 8, 2020 Bill 213 received Royal Assent. Schedule 2 of Better for People, Smarter for Business Act, 2020, S.O. 2020, c. 34, amends the CCC Act to continue CCC as “Canada University and School of Graduate Theological Studies” and authorizes it to grant Bachelors of Arts and Bachelors of Science. Section 5 of Schedule 2 stipulates that the schedule comes into force on a day named by proclamation of the Lieutenant Governor.

Dr. Bond completes his review

[29] In October of 2020 Dr. Bond completed his review. He produced two “Panel Reports” dated October 19, 2020 that Dr. Brown sent to CCC on October 26, 2020.

[30] On November 2, 2020 Dr. Brown emailed Dr. McVety to offer “an overview of the major opportunities for improvement which you could focus on in your Response to the Panel Report on [CCC].”

[31] On January 22, 2021 Dr. Brown, in an email to Dr. McVety, indicated that CCC’s applications “were referred as ‘other advice’ to the minister and outside the Consent process”. He encouraged Dr. McVety to contact the presidents of Redeemer and Tyndale regarding the “Organization Review” applications they had filed under the “other advice” pathway.

[32] On February 18, 2021, during a video call with Dr. McVety (and possibly others), Dr. Brown undertook to review and comment on CCC’s draft responses.

[33] On April 8, 2021 CCC emailed Dr. Brown its draft responses to Dr. Bond’s reports. Just over 10 days later, Dr. Brown provided feedback to CCC with regard to the draft responses. He indicated that the “format” of the responses was “very good,” that it would be “perfectly acceptable” to provide additional submissions on areas of disagreement, and suggested that “[w]here you’re making commitments and where possible/practicable, you could ‘upgrade’ the commitment to a change”. He also indicated that anything that CCC provided to him by May 7, 2021 could be included in the agenda package for the May 18, 2021 Board meeting.

[34] On May 4, 2021 CCC submitted a draft of its final responses to both reports to Dr. Brown. The next day Dr. Brown wrote to Counsel for CCC indicating that CCC’s responses to the Panel Reports are “very thorough” and “ready to be forwarded to the Board as part of the agenda package for consideration at the May 18^th^ meeting.” He also indicated that there would be a chance that responses could require further review. On May 10, 2021 counsel for CCC wrote to Dr. Brown and the Board’s chair objecting to any delay in the Board’s consideration of the matter.

[35] On May 19, 2021, in a reply to a different email from CCC’s counsel, Dr. Brown confirmed that the 2019 Manual applies “in the context of the Minister’s referral”, that the CCC “submission was referred to the Board ... under section 7 – essentially as ‘other matters’ advice to the Minister”, and that the process of reconsideration was unavailable given that this was not a “consent” application.

Board Recommendation

[36] On May 18, 2021 the Board met and considered and decided the CCC matter. On May 19, 2021 Dr. Brown wrote to the Minister, including CCC. The letter stated that the Board found that CCC was “not ready” for the two changes and that this finding was based on CCC’s submissions, the expert panel’s findings, CCC’s responses to the panel reports, the “additional materials” CCC provided to the Board, any commitments made by CCC during the review process, and the Board’s assessment of the information. Dr. Brown also noted the Board’s recommendation that CCC’s initial proposals to grant the BA and BSc degrees be referred to it as a program review under the Ministerial consent pathway.

[37] The letter enclosed two reports, dated May 19, 2021, addressing each of the changes. The reports provided, among other things, an overview of the process, the panel’s recommendation, and a list of revisions required to meet the Board’s standards.

The Minister Decides Not to Recommend Proclamation

[38] On May 19, 2021, a Decision Note was sent to the Minister from Deputy Minister Shelley Tapp. Its stated purpose was to “seek a Minister’s decision on whether to recommend the proclamation of amendments”. The document provides a background to and a review of the Board’s recommendation. It outlined two options: recommending against or for the proclamation of amendments to the CCC Act. The Deputy Minister recommended the first, noting, as some of the considerations, the negative public response to the amendments and what would be CCC’s negative response if that option were chosen. As for the second option, the document noted as a key consideration the following:

A decision to proclaim both provisions at this time would contradict [the Board’s] recommendation. [The Board] has found that [CCC] is not yet ready for expanded degree granting and to use the term “university” in its name. [CCC] did not meet the majority of [the Board’s] benchmarks. The Final Report attached to [the Board’s] recommendations highlights the Expert Panel [Chair’s] concerns regarding governance, administrative capacity, financial stability, and academic decision-making at [CCC].

[39] The Decision Note lists other considerations under this option, including (again) the negative public reaction, that it is rare for the government to make a decision contradicting a Board recommendation, and that CCC could pursue expanded degree-granting authority via the Ministerial consent pathway. Attached to the document was a list of degree programs offered by CCC and the “[Board’s] Recommendation and Final Report”.

[40] On May 20, 2021, counsel for CCC wrote to Dr. Brown and the Board’s chair alleging that the Board had considered only CCC’s initial response to Dr. Bond on the Organizational Review, not its final responses. The letter lists several examples of instances where the Board allegedly ignored CCC’s final submissions, which it attached. Counsel asked that the Board be provided with CCC’s final responses, that the Board reconvene to consider these responses, that the report and recommendations be withdrawn, and that the Minister be informed of the situation. A copy of the letter was sent to the Deputy Director of Legal Services at the Ministry of Colleges and Universities.

[41] Dr. Brown never replied to this letter. According to him it “was fundamentally mistaken as to the facts” as the Board had considered CCC’s final submissions.

[42] On May 20, 2021 Dr. McVety wrote to the Minister twice, first to provide examples of how CCC’s final responses were (allegedly) not shared with the Board, and a second time to ask the Minister “not to make a hasty decision based upon this fraudulent misrepresentation” of CCC’s responses to Dr. Bond.

[43] On May 21, 2021 the Minister checked off a box on the Decision Note beside the option “Recommend against proclamation of either the degree granting or name change amendments to [the CCC Act] at this time. (RECOMMENDED)”. On the same day, a spokesperson for the Minister was quoted in a press release as stating that the Minister had reviewed and accepted the Board’s recommendation.

Issues and Standard of Review

[44] This application raises the following issues:

1. What decisions are reviewable by this court?

2. Was the Minister’s decision to refer the matter to the Board for consideration ultra vires his jurisdiction under the PSA?

3. Were the reviewable decisions reasonable?

4. Was the Applicant afforded procedural fairness?

5. What is the appropriate remedy?

[45] Both parties agreed that any reviewable decisions should be subject to review on a standard of reasonableness.

[46] On procedural fairness questions no standard of review analysis is required.

Analysis

What Decisions Are Reviewable?

[47] The Applicant’s primary submission is that the Board’s processes were ultra vires. In the alternative it submits that the Board’s findings arose out of a process that was procedurally unfair and tainted by bias. In addition, its findings were unreasonable.

[48] The Minister argues that the only decisions that are reviewable by this court are the Minister’s decision to refer the issues under consideration to the Board and the Minister’s decision to recommend against proclamation of the amendments to the CCC Act. According to the Minister, the Board’s only power was to make recommendations to the Minister. It is up to the Minister whether to accept those recommendations. The Board has no authority to make decisions.

[49] The powers and duties of the Board are set out at s. 7 of the PSA. Under this section its duties are described as follows:

7(3) The Board shall,

(a) review applications made under section 5 and other matters referred to it by the Minister and make recommendations to the Minister in a manner and within a time period specified by the Minister; and

(b) perform such other duties as may be prescribed.

[50] The Board’s powers include “establish[ing] review panels to assess the educational quality of proposed degree programs in Ontario and to review applications made under section 5” and “establish[ing] advisory committees to assist the Board in providing recommendations and advice to the Minister”: subs. 7(4). The Board may establish procedures for performing its duties under s. 7(3)(a) and shall establish criteria that it must apply in reviewing applications and making recommendations to the Minister: subss. 7(5) and (6). The criteria must, subject to regulation, accord with educational standards and comply with the Minister’s policy directions: subs. 7(7).

[51] I agree with the Minister that the PSA gives the Board no power to make a decision and that it confines the Board’s duties to making recommendations to the Minister. Under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to grant relief in relation to decisions, not recommendations. Thus, the recommendations of the Board are not reviewable.

[52] In terms of the Minister’s decisions, the Minister accepts that the court should review both the Minister’s decision to refer the matters to the Board and his decision to recommend against proclamation of the amendments to the CCC Act at this time.

The Minister’s Decision to Refer was Intra Vires

[53] Under the PSA, an institution may not grant a degree or call or hold itself out to be a university unless authorized by (i) statute or (ii) the Minister of Training, Colleges and Universities: ss. 2(1) and (3). An institution may pursue the second approach by filing an application for Ministerial consent under s. 5 of the PSA.

[54] According to CCC, the legislative regime clearly sets up two distinct paths: the legislative and the Ministerial consent path. The Board is to become involved if an institution has chosen the Ministerial consent path, not if it has chosen the legislative amendment path. In this case the Minister created what the Applicant describes as a “hybrid process”, which involved the Board in a case where the institution was not seeking Ministerial consent. This process was ultra vires the Minister’s authority and contrary to the purpose of the legislative scheme. As put by the Applicant in its factum:

61. It cannot be that the Legislature intended for the Minister to have precisely the same process emplaced for a review of a Ministerial consent application under Section 5 and to, after the fact, review Legislation passed under Sections 2 and 3 holding the institution to an identical (or indeed higher, as described by Dr. Brown) standard. Such construction is not supported by the plain language of the statute.

62. The Hybrid Process as implemented here rewrites the language of the PSA and arrogates power to the [Board] and the Minister. The Hybrid Process creates a non-statutory veto right that the Minister (or the [Board] acting as the Minister’s effective delegate) can invoke to overrule the Legislature in matters exclusively within their purview.

63. The Minister has no jurisdiction – constitutional, statutory, or otherwise – to redraft the text of the PSA and unilaterally grant itself (and the [Board]) the power to implement a third process – the Hybrid Process – for granting institutions university and degree granting status, especially if it is to be carried out after the passage of legislation.

[55] In making its submission the Applicant acknowledges that s. 7(3) of the PSA does not limit the Board’s role to s. 5 matters. The language is much broader and includes “any other matters referred to it by the Minister”. However, according to the Applicant, this does not mean that the Minister can refer matters to the Board as a means of effectively overriding the will of the legislature.

[56] Assessing this submission requires examining whether the Minister’s decision to refer was inconsistent with the purposes and the scheme of the PSA or inconsistent with the will of the legislature when it passed Bill 213.

The Decision to Refer is not inconsistent with the purpose or scheme of the PSA

[57] The purposes of the PSA are not set out in the legislation itself. Kelly Shields, the Assistant Deputy Minister, Post Secondary Education Division, Ministry of Colleges and Universities, filed an affidavit in which she deposed that between 1983 and 2001 the only way for an educational institution in Ontario to obtain the authority to grant university degrees was through an act of the legislature pursuant to s. 2(d) of the Degree Granting Act (originally S.O. 1983, c. 36, ultimately R.S.O. 1990, c. D.5). The Degree Granting Act was repealed on October 1, 2001 and replaced by the PSA.

[58] As already noted, under the PSA, institutions are permitted to offer university degrees if authorized to do so by the legislature. However, the Act also established a new licensing regime, the Ministerial consent regime.

[59] The Ministerial Consent regime differs from the legislative scheme in three important ways: (i) under the Act the consent may be granted subject to conditions and may be amended or revoked; (ii) a Ministerial consent is typically time limited, with renewals requiring a reconsideration by the Board; and (iii) the PSA established certain consumer protections for students who enrol in a university program provided under Ministerial consent.

[60] According to Ms. Shields, the PSA has three primary policy objectives:

1. Expand student access to degree programs;

2. Increase student protection; and

3. Implement a quality assurance framework for degree programs through establishing the Board.

[61] Where an applicant requests Ministerial consent, the Minister is required to forward the request to the Board or another accrediting or quality assurance body for consideration first. The Board is independent of the government. It is composed of a chair appointed by the LGIC and a vice-chair and up to 9 members appointed by the Minister. The administrative functions of the Board are performed by the Board Secretariat, which is part of the Ministry. Dr. James Brown, as CEO of the Board, is the head of the Secretariat and an employee of the Ministry. He is not a member of the Board. The Board’s role is a quality assurance one – it reviews the application for quality assurance concerns and advises the Minister accordingly.

[62] Ms. Shields deposed that the Ministry’s current policy is to refer all requests for degree granting authority to the Board, regardless of whether the request is being made for a legislative amendment or for Ministerial consent. This allows the Ministry to perform its quality assurance review of all requests. This approach was used in relation to a number of institutions that have requested legislative amendments to expand their degree-granting authority since the PSA was passed, including OCAD University, Algoma University, Tyndale, and Redeemer. The last two institutions, like CCC, are faith-based private institutions with a constituent statute and the amendments with respect to both were proclaimed into force.

[63] The Minister’s jurisdiction to refer requests that do not require Ministerial consent to the Board is found in s. 7(3)(a) of the PSA. That section gives the Board jurisdiction to consider any matter that may be referred to it by the Minister. There is nothing in the PSA that precludes the Minister from referring a request for a legislative amendment to the Board for consideration. There is also nothing in the Act that requires the Minister to propose a legislative amendment to the legislature or to recommend proclamation of legislative amendments simply because an institution has requested it.

[64] In this regard, it is worth noting that if an institution obtains its degree granting status or the right to use the word “university” through legislative amendment, the Minister has no oversight powers over the institution from that point on. By contrast, in a situation of Ministerial consent, the Act gives the Minister both oversight and enforcement powers. Thus, where rights are granted through legislative amendment, the one opportunity the Minister has to do a quality assurance check is at the application stage.

[65] One of the purposes of the PSA is to ensure that degree granting institutions meet certain standards. To this end the Act establishes an independent body whose role it is to advise the Minister on quality assurance issues. The Minister’s decision to refer CCC’s request to the Board is consistent with the Minister’s current policy on all such requests and with the PSA’s purpose: to assure the quality of higher education in Ontario. The Board exists precisely for that purpose, i.e., to perform quality assurance assessments on a post secondary institution that seeks to call itself a university and have the power to grant university degrees.

[66] Thus, there is no merit to the Applicant’s position that the Minister’s referral decision was inconsistent with the purpose of the PSA or the statutory scheme of that legislation.

The Minister’s Decision to refer did not undermine the will of the legislature and was reasonable

[67] In this case the “legislature’s will” was expressed through Bill 213, which provided that the amendments at issue would only come into force on a day to be named by proclamation of the Lieutenant Governor.

[68] There is no presumption in Ontario that every enacted statute that is subject to proclamation will be proclaimed. On the contrary, Legislation Act, 2006, S.O. 2006, c. 21, Sched. F., contemplates that some legislation will never be proclaimed. Section 10.1 of the Act provides that legislation that is not brought into force within 10 years of enactment will be automatically repealed (unless the legislature adopts a resolution that it not be repealed).

[69] In her leading text, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at paras. 24.19 and 24.23, Ruth Sullivan makes it clear that when legislatures choose to delay the commencement of legislation by making it subject to proclamation by the Lieutenant Governor in Council (“LGIC”), they may do so for a number of reasons, including achieving a political goal. As she puts it:

Commencement can occur at the same time as enactment or it may be delayed. It also is possible that commencement may never occur. Statutes may be repealed before they are fully or even partially brought into force.

Legislatures may choose to delay the commencement of legislation for one reason or another: to await events, to allow time to prepare administrative machinery, to give fair warning to the public, to achieve a political goal. In such cases the time chosen for commencement is set out or described in the Act or a power is given to the executive branch, usually the Governor General or Lieutenant Governor in Council, to bring the Act into force on a day within its discretion. It is possible to have parts of an Act come into force upon enactment while other parts are delayed. Also, the executive branch may be authorized to bring different provisions of an Act into force on different days [s. 8(3) of the Legislation Act does authorize this]. This authority is normally exercised by way of order or proclamation.

[70] In this case the legislature expressed its will by choosing to delay the commencement of the amendments at issue in Bill 213. In doing so it gave the Lieutenant Governor the discretion to decide when to proclaim the legislation. As noted, that discretion includes the power to never proclaim the legislation and the power to only proclaim part of the legislation. While it is not for this court to decide why the legislature exercised its will in this way, it is worth noting that when Bill 213 was enacted in 2020 the Minister had referred CCC’s requests to the Board, the Board process was not complete, and the Board had not yet made its recommendations. Those recommendations were made in May of 2021. It is also worth noting that there was opposition to CCC’s requests expressed at the legislative committee level.

[71] The Applicant submits that when the legislature gives the Lieutenant Governor the discretion to decide when to proclaim the legislation, there are limits on that discretion. In this regard counsel referred us to the Supreme Court of Canada’s decision in Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121. In Roncarelli the Court, at p. 140, clearly found that “no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.”

[72] There is no foundation for suggesting that the Minister’s decision to refer or its decision to recommend against proclamation at this time was an arbitrary exercise of discretion for a capricious or irrelevant purpose.

[73] The Applicant also referred us to the decision by the House of Lords in R. v Secretary of State for the Home Department, ex p Fire Brigades Union, [1995] UKHL 3, [1995] 2 A.C. 513. In that case Parliament had passed legislation providing for compensation for victims of violent crime. The legislation provided that certain provisions were to come into force on a day to be named by the Secretary of State. After the legislation was passed, the Secretary of Sate, instead of naming a date for it to come into force, decided to adopt a new tariff non-statutory scheme. A majority of the House of Lords held that the Secretary of State had abused his power. However, they did so not on the basis that he had not proclaimed the legislation in question into force but, rather, because by adopting a new tariff non-statutory scheme, he had put himself in a position where it was no longer possible for him to exercise the commencement date power he had been given by the legislature. In this case, the Minister has only chosen not to recommend proclamation at this time. He has not foreclosed the possibility of the Applicant being successful in obtaining proclamation of the legislation at a future date when the concerns identified by the Board have been fully addressed.

[74] As already noted, the Minister’s decision to refer was consistent with the purposes of the PSA and was, therefore, neither ultra vires nor unreasonable.

The Minister’s Decision Not to Recommend Proclamation Was Reasonable

Any inaccuracies in the Board Reports were insignificant and did not affect the reasonableness of the Minister’s Decision

[75] The Applicant argues that the Minister’s decision to recommend against proclamation of the relevant amendments in Bill 213 at this time was unreasonable because the Minister did not have the correct information before him – that is, the information in the Applicant’s Final Responses. Key aspects of the incorrect information were the following:

(a) The Board Report that was forwarded to the Minister stated that CCC had not yet developed a Curriculum Development Policy. However, the Final Response stated that such a policy did exist.

(b) The Board Report that was forwarded to the Minister stated that CCC had not developed and adopted policies on sexual harassment, cyberbullying, disaster relief and financial investments. The Final Response indicated that such polices had now been developed and adopted.

(c) The Board Report that was forwarded to the Minister stated that CCC was going to develop and adopt a more comprehensive policy on academic freedom, acknowledging the centrality of research and scholarship. In the Final Response CCC told the Board that such a policy had been developed and adopted.

(d) The Board Report that was forwarded to the Minister stated that CCC had not submitted audited financial statements. The Final Response confirmed that such statements had been submitted.

(e) The Board Report that was forwarded to the Minister stated that CCC had made a commitment to change their Board and Governance structure. The Final Response submitted evidence that all requested changes were being implemented.

[76] Dr. Brown was at the Board meeting at which the Board decided not to approve CCC’s requests. He confirmed that the Board did have before it and did consider CCC’s Final Responses. This is confirmed by the fact that the Board Agenda for that meeting attached the Final Responses and that in one of its reports to the Minister the Board referred to the Final Responses.

[77] Dr. Brown, however, also confirmed that it is only the Board Reports that were forwarded to the Minister; the Final Responses were not. His explanation for this was that there are thousands of documents that form part of a Board review and the Ministry’s practice is only to send the Board’s actual reports and recommendations to the Ministry for review. He also stated that if the Final Responses had contained information that was considered important by the Board, the Board would have put that information in its Reports and/or the Ministry staff might have presented CCC’s Final Responses to the Minister for review. However, as put by Dr. Brown in his cross-examination:

…we’re in a context where the submission [the Final Report] would have to meet all the standards, and when we’ve determined that there is some crucial standards that are not met, it’s not important to acknowledge all the places where they were almost met, or could be deemed to be met based on a subsequent application.

So, this wasn’t a close call. If it had been a close call, and the whole determination about, “ Should [the Board] be recommending that this become an institution that offers degrees?” turned on this, then it would be important to comment on it.

But while we’re in the position where that was not the case, there was no such comment, and there could only be such a comment if everything was commented on.

[78] Dr. Brown stated that the Board had several key concerns regarding CCC:

• concerns about governance (and particularly the extent to which governance was controlled by one family);

• concerns about a “much more elaborate financial plan, that was tied to their academic plan, that was, in turn, tied to a hiring plan. Because whatever the qualifications of their current faculty, they didn’t have faculty who had the relevant terminal qualifications to teach any faculty of arts or faculty of science program, and that relates to the governance standard”; and

• “finally, there was a concern about academic freedom, that is, the degree of academic freedom that faculty would have within the code of conduct statement of faith.”

According to Dr. Brown, even with the commitments contained in the Final Responses, the Board felt that CCC did not come close to meeting the standards that are required of a degree-granting university.

[79] Thus, the evidence is that the information in the Final Reports did not persuade the Board. Therefore, to the extent that the Board Reports to the Minister contained inaccuracies, those inaccuracies were not significant and would not have affected the Board’s recommendations. As the Board recognized, there is a difference between formally passing a policy and demonstrating that the policy has actually been implemented. There was nothing unreasonable about the Minister relying on the fact that the Board performed its quality assurance review and accurately reported to him their conclusions about that review. There was no need for him to look behind that review and, if he had, his view as to the Board’s recommendations would not have changed. This conclusion is reinforced by the fact that, prior to the Minister’s decision to recommend against proclamation, Dr. McVety wrote twice to the Ministry pointing out the alleged inaccuracies in the Board Reports and urging him to ignore the Board’s recommendations. The Ministry reviewed this correspondence.

[80] It is important to again note that given the legislative amendment path followed here, had the amendments been proclaimed into force, the Minister would have had no further opportunity to supervise or check if CCC was in fact operating according to its commitments or the policies it had just passed. This would not be the case had CCC proceeded through the Ministerial consent process. The Minister’s [and the Board’s] only opportunity to assess CCC to ensure that CCC did meet the necessary standards to operate as a university was at the recommendation for proclamation stage. Once legislated authorization is granted, it can only be removed through a further legislative amendment.

[81] After receiving the Board Reports, the Minister made his decision based on the Board recommendations and other relevant information provided to him by Ministry staff in the Decision Note. This information included public policy concerns that had been expressed by the public and which the Minister is entitled to take into account when considering an application: see section 3.7 of the 2019 Manual that the Applicant was told to use to guide its application. The Board Reports stated that the Board had considered the Applicant’s submissions. The Minister could therefore reasonably assume that the response provided by the Applicant did not persuade the Board that the Panel’s findings were wrong. Given the Panel’s findings regarding the Applicant’s failure to meet a number of applicable standards, the Board’s agreement with the Panel’s assessment, and the public policy issues engaged in the case, the Minister’s decision not to recommend proclamation of the legislation at this time was reasonable.

The Minister did not breach the duty of procedural fairness in making his decision

[82] CCC alleges that it was led to believe that the Minister’s referral to the Board [what the Applicant referred to as the “Hybrid Process”] was to make proclamation of the relevant portions of Bill 213 more politically attractive. It was told that the Minister had gone against the Board’s recommendations 14 times, and that the Board’s role would be confidential, advisory and for institutional betterment. It was also told that engaging with the Board would be a gesture of goodwill. As put by CCC in its factum:

74. [CCC] was told that the Hybrid Process would be “super quick and painless”. It was to be advisory, the [Board’s] findings would not be binding on the Minister. It was implied that the Minister would go against the [Board] if necessary and that the process was effectively window-dressing. There was no reason to believe that if the Legislation was passed, it would not be proclaimed.

[83] According to CCC, all of its expectations were breached. The Board’s failure to recommend that CCC’s requests be granted became “the primary basis for the Minister’s decision not to proceed with proclamation”; the Board’s process was not kept confidential; its Final Responses were not given due consideration; and the Board departed from the 2019 Manual as it relates to CCC’s rights to reconsideration. The result for CCC is that it is “now left without a path forward to secure proclamation.” This concern is enhanced by the fact that the Minister gave no reasons for his decision to recommend against proclamation at this time.

[84] CCC alleges that it “participated in the Hybrid Process based on its legitimate expectations” about the process and that “[g]iven the importance of these expectations, the Hybrid Process was unreasonable on this basis alone.”

[85] CCC also alleges bias in the Board process, a bias which tainted the Minister’s decision. This bias is demonstrated by the Board’s decision to allow its Final Reports to include inaccuracies; the Board’s conclusions about the McVety’s family’s control of the CCC Board; the fact that the Board put weight on the fact that CCC would not be subject to an oversight body; the fact that the Board posted private information of individuals and confidential information about CCC publicly; and the fact that the Board held religious degree granting institutions to a different and higher standard than that to which secular institutions are held.

[86] In Reference Re Canada Assistance Plan (BC), 1991 74 (SCC), [1991] 2 S.C.R. 525 at p. 558, the Supreme Court of Canada confirmed the following:

A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision.

[87] The decision about whether to proclaim legislation into force is a legislative function exercised by the executive. It is also a decision based on grounds of public policy. Therefore, procedural fairness does not apply.

[88] However, if it can be argued that the Minister owed the Applicant a duty of procedural fairness, that duty was met. One of the Applicant’s arguments about a lack of procedural fairness is founded in the alleged failure of the Board to consider CCC’s Final Responses or to bring these responses to the attention of the Minister. The Board did consider the Final Responses before issuing its reports to the Minister containing its recommendations and the Ministry reviewed CCC’s correspondence about the inaccuracies contained in the Board’s Reports before the Minister made his decision.

[89] CCC also submits that there was a failure of procedural fairness because the Minister did not give reasons for his decision. The Minister was not required to give reasons for his decision but if he was, those reasons can be found in the Decision Note. The court may assess the whole of the record to determine whether the Minister’s decision was reasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 136-138.

[90] CCC also relies on the doctrine of legitimate expectations. First, as a procedural fairness doctrine, it does not apply when the executive branch of government is exercising its part of the legislative process. Second, CCC is relying on this doctrine to support the proposition that it had a legitimate expectation that the Minister, regardless of what the Board recommended, would recommend proclamation of the amendments at issue. The doctrine of legitimate expectation only applies to representations that are procedural in nature; it cannot be used to support an argument that the applicant was promised a particular substantive result. Finally, any alleged representations about procedure have to be “clear, unambiguous and unqualified”: Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68. The Applicant has not alleged that the Minister (or any member of the Minister’s or Premier’s staff) made a clear, unambiguous and unqualified representation that the recommendations of the Board would not be followed if they were not in the Applicant’s favour.

[91] CCC was never told that it would be afforded a right of reconsideration to the Board’s recommendations. There is no legislative right to a reconsideration of the Board’s recommendations regarding the request for a legislative amendment. The Board, as a matter of its own procedure, permits a request for reconsideration where the consent process under section 5 is used. As noted several times, this was not a request for consent under section 5.

[92] The Applicant also argued that its legitimate expectation of confidentiality was deliberately breached. Dr. Brown gave evidence that the Board’s posting of the Applicant’s unredacted application on the Board website was inadvertent and that the Board apologized for the error. It is the Board’s practice to post the full applications of an institution on its website, with the exception of proprietary information and faculty CVs. The 2019 Manual makes it clear that this is done to allow for comments from interested parties and that comments on matters of public policy are forwarded to the Ministry for consideration. The Board Reports were never released to the public by the Board or the Ministry. The Minister did disclose the Board’s recommendations to the public through a press statement to provide transparency with respect to the Minister’s decision. CCC’s application was a matter of great public interest and there was nothing unfair about the Minister’s actions in this regard.

[93] With respect to CCC’s allegations of bias against the Board, there is no evidence to support these allegations. The Board’s concerns about the “narrowness” of the Applicant’s senate or board, and the lack of independence of the members of that governing body, were legitimate concerns to have about a degree granting university. Dr. Brown gave evidence that all institutions, whether religious or secular, were held to the same standards. The only time a different standard might apply is if the institution was offering only religious degrees (as CCC does at present). The Board made positive recommendations with respect to the legislative amendments sought by Redeemer and Tyndale, both of which are faith-based institutions.

The Remedy Sought Cannot Be Granted

[94] Since I would not grant the application on the merits, I will only comment briefly on the question of remedy.

[95] The Applicant seeks a remedy in the nature of mandamus directing the Minister to recommend proclamation of the legislation. The Applicant does not meet the test for mandamus, which requires in part that a statute, regulation or binding order granted the Applicant a right to have the legislation proclaimed in the manner and at the time the request that it be performed was made and imposed a corresponding legal duty on the Minister to so act: Sara Blake, Administrative Law in Canada, 6th ed. (Toronto: LexisNexis, 2017), at §9.16. Neither of these two requirements are met in this case.

Conclusion

[96] For these reasons the application for judicial review is dismissed. As agreed by the parties, the Applicant shall pay to the Respondent its costs of the application, fixed in the amount of $25,000.00, all inclusive.

Sachs J.

I agree _______________________________

Morgan J.

I agree _______________________________

D.L. Edwards J.

Released: March 17, 2022

CITATION: Canada Christian College and School of Graduate Theological Studies v. Postsecondary Education Quality Assessment Board, 2022 ONSC 1608

DIVISIONAL COURT FILE NO.: 482/21

DATE: 2022/03/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Morgan and D.L. Edwards JJ

BETWEEN:

Canada Christian College and School of Graduate Theological Studies

Applicant

– and –

Postsecondary Education Quality Assessment Board and Her Majesty the Queen in the Right of Ontario as Represented by the Minister of Training, Colleges and Universities also known as the Minister of Colleges and Universities

Respondents

REASONS FOR JUDGMENT

Sachs J.

Released: March 17, 2022