COURT FILE NO.: C-1052-11

DATE: 2012-01-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Douglas-Ralph Pfeiffer, Applicant

AND:

Her Majesty the Queen in Right of Ontario, Ministry of Community Safety and Correctional Services, Private Security and Investigative Services Branch, Respondents

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL: Douglas Pfeiffer, Applicant, appearing in person

Giuseppe Ferraro, for the Respondent

HEARD: January 25, 2012

ENDORSEMENT

[1] The Application, brought under Rule 14.05, is for an Order for immediate renewal and issuance of the Applicant’s (Mr. Pfeiffer) security guard licence by the Registrar of the Private Security and Investigative Services Board (“PSISB”) and for damages .

[2] The Respondent (the Crown) has brought a Motion seeking to strike out the Notice of Application and dismissing the matter on the grounds, amongst others, that it discloses no reasonable cause of action, the Applicant does not plead the required material facts, that this Court does not have jurisdiction over the subject matter of the proceeding, and that the Application may be disposed of by a determination of a question of law, namely that the Crown does not owe a private law duty of care to the Applicant.

[3] Mr. Ferraro, for the Crown, argued that there were three threshold issues, namely:

a) That the Application is premature since the Court has no jurisdiction to deal with the matter as the Private Security and Investigative Services Act, 2005 (“PSISA”) provides for an administrative process to deal with reviews of the Registrar’s decision not to issue or renew a license;

b) That the facts as pleaded are not sufficient to ground the Application; and

c) The Application is frivolous or vexatious.

[4] In addition, Mr. Ferraro advanced a substantive ground for dismissal, namely that the Crown owed no duty of care to the Applicant, both with respect to the mandatory Order sought and the claim for damages.

Background

[5] Mr. Pfeiffer has been a security guard, employed by the Canadian Corps of Commissionaires since May, 2000. He held a licence issued by the PSISB, which came up for renewal on May 25, 2011. Mr. Pfeiffer applied to the Registrar for renewal of his licence on April 13, 2011.

[6] The Registrar advised Mr. Pfeiffer by letter that his application could not be processed “without satisfying the identification and guarantor requirements as set out by recent changes made by the RCMP regarding criminal background checks.” The required documents comprised two pieces of identification signed by an acceptable guarantor. The Registrar advised that once those documents were submitted, the application would continue to be processed.

[7] Mr. Pfeiffer took the position that there was no legal requirement for him to submit the requested documents, and did not do so. In the Application, and in argument, Mr. Pfeiffer took the position that the Registrar was not entitled to adopt the new policy of the RCMP, that in so doing, she improperly abandoned her duty by delegating her decision-making to the RCMP and, in so doing, was negligent.

[8] Mr. Pfeiffer acknowledged in argument that there was no impediment preventing him from providing the requested documentation, but rather his objection to doing so was based on principle. He advised that he was taking the position that he was not required by law to provide the requested documentation at great personal sacrifice, since as a result of the non-renewal of his licence, he had to give up his employment as a security guard.

[9] Mr. Ferraro submitted that the authority of the Registrar to require the documents referred to in the RCMP policy, derived from s. 11(2)(e) of the PSISA which provides that the Registrar may require an applicant to provide “any other information or material as the Registrar considers necessary...in order to determine whether the applicant meets the requirements for the issuance or renewal of a licence.”

[10] One of the requirements for issuance or renewal under s. 10(1) is a “clean criminal record.” It was the position of the Crown that the documentation required by the RCMP was in order to perform a CPIC criminal record search. Mr. Pfeiffer disputes that the documentation is required for that purpose and that all he was required by law to provide was a consent to the local police to conduct a background check under s. 11(2)(c).

Discussion

[11] On the issue of the jurisdiction of the Court to deal with the matter, Mr. Ferraro points to sections 16-18 of PSISA which creates an administrative process for review of decisions of the Registrar if she proposes to refuse to issue or renew a licence, apply conditions to a licence or renewal or revoke a licence, including a right to be heard by the Registrar and a right of appeal to the Licence Appeal Tribunal.

[12] The Crown relies upon the principle in R. v. Consolidated Maybrun Mines Ltd. [1998] S.C.R. 706 that the legislature is free to set up internal mechanisms and establish appropriate forums to enable individuals affected by government actions to assert their rights, and where that is effectively done by the legislature, the Superior Court has no jurisdiction to deal with the subject-matter of those disputes.

[13] This principle was applied in a non-penal context, involving a question of entitlement to a government benefit in Mohammed v OHIP [2001] O.J. 476. See also Wood Producers’ Assn. of Ontario v Ontario [2005] O.J. No. 475.

[14] Although in this case, the Registrar did not get to the point of refusing the renewal of Mr. Pfeiffer’s license, but simply stopped processing the application when the requested documentation was not provided, Mr. Ferraro advised that the refusal to process the application may be treated as a refusal, thereby triggering the administrative review process under the Act.

[15] Mr. Pfeiffer argued that the review process in ss. 16-18 of the Act is not mandatory, and that he always retained the right to access the Court to have his dispute adjudicated, and that the Act did not bar such access to the Court.

[16] In my view, the principle in Consolidated Maybrun and Mohammed v OHIP is applicable. Since the legislature has established an administrative process to review decisions of the Registrar with respect to licensing under the Act, seeking recourse to the Court would represent a collateral attack on the established process. It is not necessary for the legislation to explicitly bar access to the Court, but rather the lack of jurisdiction in the Court flows from the creation of the administrative process. Moreover, the parties retain ultimate access to the Court by way of judicial review of decisions of the Tribunal.

Disposition

[17] Based upon the Crown’s assurance that the decision of the Registrar not to process Mr. Pfeiffer’s application to renew may be considered to be a refusal to renew, this Court lacks jurisdiction to deal with the question of whether Mr. Pfeiffer’s application for renewal was complete and therefore the renewal licence should issue, or whether the documents requested by the Registrar may properly be required. Having found that the Court lacks jurisdiction with the subject-matter of the application, it would not be appropriate to deal with the remaining grounds for the Motion to dismiss.

[18] Mr. Pfeiffer’s position is strongly held and passionately argued, and may continue to be advanced by him in the context of the statutory administrative review process.

[19] The Motion is therefore granted and the Application is hereby dismissed. In order to initiate the review process in ss. 16-18 of the PSISA, unless the Registrar issues the renewal of Mr. Pfeiffer’s licence, she is to serve the written notice provided for in s. 16(1) of PSISA within 21 days of the release of this decision.

[20] If the Crown wishes to seek costs, brief written submissions should be made by February 27, 2012. Mr. Pfeiffer may submit brief submissions in response by March 12, 2012. In this context brief shall mean not more than three double-spaced typewritten pages.

D. A. Broad J.

Date: January 27, 2012