2018 ONSC 4825

Court File and Parties

COURT FILE NO.: CV-18-602004 DATE: 20180814 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Muhammad Watto, Professional Development and Legal Education Society and Legal and Professional Education College Ltd., Applicants AND: Immigration Consultants of Canada Regulatory Council, Respondent

BEFORE: Carole J. Brown, J.

COUNSEL: S. Taylor, for the Applicant Watto J. Larry and G. Hawe, for the Respondent

HEARD: August 10, 2018

Endorsement

[1] The applicant, Muhammad Watto (“Watto”), brings this motion on an urgent basis, seeking a mandatory interlocutory injunction to prevent the respondent, the ICCRC, from revoking his and his corporations’ status as approved provider of Continuing Professional Development programs.

[2] The application will be heard on an urgent basis on September 27, 2018, in a little more than one month.

[3] The applicant, Watto, is the sole officer and director of two corporations, Professional Development and Legal Education Society and Legal and Professional Education College Ltd.

[4] Further, Watto is an officer, founding member, president and the administrator and technical contact for the United Citizenship and Immigration Consultants Association, which purports to advocate on behalf of the immigration consultant industry.

[5] The respondent is a non-share capital, not-for-profit self-regulating corporation operating under the Canada Not-For-Profit Corporations Act. The federal government has designated the ICCRC as the regulatory body of all registered immigration and citizenship consultants, known as Regulated Canadian Immigration Consultants (RCICs). Members in good standing may represent or advise persons in connection with proceedings or applications under The Immigration and Refugee Protection Act and the Citizenship Act.

[6] The respondent regulates the profession in the public interest by requiring the RCICs to complete a minimum number of continuing professional development hours annually which are ICCRC-approved CPD events. The applicant was one of numerous CPD providers.

[7] Pursuant to the CPD Regulation 10.1, the ICCRC may suspend or revoke approval of CPD events and providers if the CPD contents do not meet the criteria and requirements, if the provider conveys information that is inaccurate, untrue, misleading or if there are significant concerns or complaints about the delivery or conduct of a provider, or other circumstances warranting suspension or revocation which is at the sole discretion of the ICCRC.

[8] CPD Regulation 10.1, which is in force from April 6, 2018, states as follows:

If ICCRC monitoring or inquiries reveal that the CPD content of a Provider’s event does not meet the criteria and requirements of this Regulation, approval may be suspended or revoked at the discretion of the Director of Education. Approval may also be suspended or revoked if the information that the Provider conveys to members is inaccurate, untrue or misleading, or there are legitimate concerns or complaints about the delivery of a Provider’s event or the conduct of the Provider. Other circumstances may warrant suspension or revocation, and approval of CPD content for a Provider’s event or approval of a Provider is at the sole discretion of ICCRC.

[9] As regards programs offered by the applicant, several of his proposed programs have not been approved by the ICCRC over the years as they did not meet the standards required.

[10] Since 2013, Watto has made numerous allegations of criminal activity, corruption, fraudulent practices and other untrue and unsupported allegations against the ICCRC, publishing them, sending email blasts through the ICCRC listserv and in media interviews. He made a criminal complaint to the RCMP, commenced several proceedings against the ICCRC in the courts and is involved against the ICCRC in others, some of which have been dismissed, although not determined on the merits. He has been the subject of numerous complaints to the ICCRC.

[11] On June 1, 2018, Watto authored and sent a mass email to ICCRC members that made a number of unfounded allegations, including that the ICCRC is corrupt, the regulatory and licensing system is a fraud, and that ICCRC officers and staff were subject to criminal investigation by the RCMP. The email encouraged ICCRC members to come forward with information of any wrongdoing and cautioned ICCRC members erroneously that it was a crime if they did not come forward with such information.

[12] On this motion, he argues that the email was not authored by him. However, at the time that the ICCRC revoked his status and raised this email, he did not deny that it was his.

[13] On July 19, 2018, after the applicant reapplied for approval to provide a number of courses previously given, for which initial approval had expired or would expire prior to the anticipated date of the course, the ICCRC exercised its discretion pursuant to the CPD Regulation and revoked his accreditation as a CPD provider.

[14] The applicant seeks an interlocutory injunction to prevent the respondent from executing its revocation of his status or, in essence, reinstating his status.

The Issue

[15] The issue to be determined on this motion is whether the applicant should be granted an interim injunction restraining the respondent from revoking his and his companies’ status as a CPD provider or compelling it to reinstate his status and approve the courses to be offered.

The Test for an Injunction

[16] The tripartite test for an injunction is as set forth in RJR McDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, namely that the applicant must demonstrate (i) a serious issue to be tried (ii) that he will suffer irreparable harm if the injunction is not granted, (iii) that the balance of convenience favours granting the injunction. Where a mandatory injunction is sought, the plaintiff must meet a higher standard than the usual (serious issue to be tried) standard, namely the applicant must demonstrate that he is almost certain to succeed on the merits. In this case, the higher standard is to be applied.

Strong Prima Facie Case on the Merits

[17] In this case, the applicant seeks a “declaration” that the ICCRC’s decision to revoke the applicants’ CPD approval was “oppressive, unfairly prejudicial and unfairly disregards” his interests as a member. For the oppressive conduct allegation, he relies on the Canada Not-For-Profit Corporations Act, section 253(1). This ground was advanced in the applicant’s factum materials but not in submissions. The applicant submits that the respondent did not have valid grounds upon which to revoke the applicant’s status as a CPD provider. It contests Regulation 10.1 and its application. In this case, there is no evidence of “oppression”: see BCE Inc. v Debenture Holders, 2008 SCC 69 at para 68. Nor is there evidence of unfair prejudice or unfair disregard.

[18] Based on the voluminous evidence before this court, and the CPD Regulation 10.1, I am not satisfied that there is a strong prima facie case. I am not satisfied that this case meets that higher test. Accordingly, the first test is not met. Indeed, based on all of the evidence before me, it would appear to me to be no more than frivolous and vexatious.

Irreparable Harm

[19] The applicant submits that he will suffer irreparable harm due to financial losses which he will sustain if he is not permitted to provide CPD courses to RCIC members. The applicant states that he has had to refund to members who have signed up for his courses $51,823 as he will not be able to provide courses to them. It is the position of the respondent that the courses for which his attendees had signed up had not been approved by them in any event and advertising them without the requisite approval was contrary to the Regulations.

[20] While the applicant submits that he has no other sources of income, it appears from the evidence before the Court that the Watto corporations currently offer a number of professional development courses in industries not related to immigration, including LSO bar exam prep courses; Law Society of BC accredited CPD courses; LSO accredited CPD courses; diplomas in correctional services and policing; and certificates in criminal procedure, legal writing and emergency management. In the evidence, courses offered by the applicants are listed for the LSO from September through December, 2018. Further, based on the affidavit of the applicant, he is also a paralegal, and an accredited CPD provider for various law societies. Thus, he has other sources of income available to him.

[21] Injunctive relief is not an appropriate remedy where damages can provide adequate relief: Traynor v UNUM Life Insurance Co. of America, [2003] O. J. No. 2252. In the event that the applicant is ultimately successful on the application, the alleged revenue loss can be quantified and reimbursed.

[22] The applicant submits that he will also suffer significant reputational and professional harm that cannot be compensated for in damages if the injunction is not granted. However, the evidence indicates that from 2013, he has garnered media attention by his publications, his email blasts, his media interviews and the numerous legal proceedings that he is involved in with the ICCRC or has commenced, which have, for the most part, been dismissed by the courts. As regards this application, the applicant himself provided the application materials to the CBC. He has, by his own actions, put himself and his reputation in the public forum. I am not satisfied, based on the evidence, that his reputation could be further impacted by the revocation of his license in this instance.

[23] I do not find there to be irreparable harm based on the evidence adduced in this case.

Balance of Convenience

[24] The balance of convenience is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits.

[25] In assessing where the balance of convenience lies, a court should have regard to the two following principles: (i) where all else is equal, “it is council of prudence to… preserve the status quo”; and (ii) “the assessment of where the balance of convenience lies is significantly affected by the “extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial ”: Sharpe Robert J, Injunctions and Specific Performance (Canada Law Book: Aurora, ON, looseleaf, 214 (at s 2.530, quoting American Cyanamid, [1975] A. C. 396 (H. L.)). The balance of convenience analysis considers what is the effect on the parties and sometimes on third parties of the court granting or not granting the interlocutory injunction: Maudore Minerals Ltd. v The Harbour Foundation, 2012 ONSC 4255 at para 79.

[26] It is the position of the applicant that the balance of convenience favours granting the injunction. The applicant submits that he should not be penalized by the false assumptions used by the respondent to revoke his CPD provider status. Further, he should not be penalized for questioning the governance of the respondent.

[27] It is the position of the respondent that the balance of convenience does not favour granting the injunctive relief sought as the applicant’s only evidence of possible harm is economic and the relatively small quantum can be easily compensated for if he were successful on the merits. Further, he has not demonstrated that any third party would be significantly affected by maintaining the status quo. The respondent submits that the harm it would face if forced to approve the applicant’s CPD events despite their deficiencies would be immeasurable. Further, the harm it would suffer based on the appearance of condoning the vicious and vexatious attacks against it by the applicant if it were required to reverse its decision as regards revocation of the applicant’s status as CPD provider would also be immeasurable. It is the position of the respondent that based on Regulation 10.1, its discretionary power to revoke or approve a CPD program or provider also includes suspension or revocation on the ground that the provider conveys to its members information that is inaccurate, untrue or misleading or there are legitimate concerns or complaints about the delivery of a provider’s event or the conduct of the provider, or other circumstances warranting revocation or suspension. In this case, the respondent submits that the applicant’s conduct as described above was sufficient to permit it to exercise its discretion.

[28] I note in this case that the application for a determination of the issues is to be heard within one and one half months.

[29] I am satisfied on all of the evidence before me that the balance of convenience does not favour the applicant in the circumstances of this case.

[30] I do not grant an interlocutory injunction.

Carole J. Brown, J.

Date: August 14, 2018