COURT FILE NO.: CV-22-00685622-0000 DATE: 2023-10-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SUPERINTENDENT OF PRIVATE CAREER COLLEGES Applicant
- and -
ISLAND AIR FLIGHT SCHOOL & CHARTERS INC. Respondent
Counsel: Michael John Sims, for the Applicant Alan Cofman and Matthew Walwyn, for the Respondent
HEARD: September 12, 2023
MERRITT J.
REASONS FOR JUDGMENT
OVERVIEW
1The Superintendent of Private Career Colleges (the “Superintendent”) seeks a restraining order pursuant to s. 47 of the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L (the "Act") prohibiting the respondent Island Air Flight School & Charters Inc. (“Island Air”) from offering or advertising vocational programs to the public because it is not registered under the Act.
2Private career colleges (“PCCs”) that offer certain vocational programs in Ontario must be registered under the Act and must comply with the Act and its regulations. The Act is primarily a consumer protection statute. It requires that private career colleges meet certain standards for their vocational programs, including requirements for advertising, complaints procedure, enrolment contracts, and policies including refund and transfer policies.
3Island Air has never registered as a private career college.
4The Superintendent has never before sought an order under s. 47 of the Act.
DECISION
5I find that Island Air did violate the Act by providing vocational training within the meaning of section 47 of the Act, at the very least until August 2019, when it stopped doing test recommendations. There are no reasonable grounds to believe that Island Air will continue to violate the Act or its regulations. I decline to exercise my discretion to issue a restraining order under s. 47.
BACKGROUND FACTS
6There are four general types of licensing for pilots: recreational pilot permit (“RPP”), private pilot license (“PPL”), commercial piolet license (“CPL”) and airline transport pilot license (“ATPL). Additional ratings can be added to any license. Ratings are Transport Canada endorsements that grant additional special privileges, such as a night rating that allows pilots to fly at night.
7An RPP pilot can fly with no more than one passenger, on a plane with no more than four seats, and only within Canada. A PPL pilot has no passenger or seat limitations and can fly internationally. A CPL pilot can fly as the pilot of a single-pilot airplane, or as a co-pilot on a multi-crew airplane. They might fly small planes to do surveying or deliver mail to remote locations, for example. A CPL is a prerequisite to an ATPL. An ATPL allows the pilot to fly professionally as pilot or co-pilot of a single pilot or multi-crew aeroplane. This is the license that is required in order to become a professional airline captain.
8Each class of license requires three areas of training: (i) specified ground training; (ii) written examinations; and (iii) specified flying experience.
9The CPL requirements include 80 hours of ground school in specified subjects and a grade of at least 60% in each section of the written Commercial Pilot License-Aeroplan (“CPAER”) test. For admission to write the CPAER test, a student must have a letter of recommendation from a flight instructor certifying that certain training was done, and a pre-test evaluation and certification that the candidate is sufficiently proficient, and the instructor recommends the candidate for the flight test (“test recommendation”).
10The CPL requirements also include specified amounts of flying time, including 30 hours of solo flight time, 35 hours of dual instruction time and 100 hours of pilot-in-command time, of which 20 hours must be cross-country pilot-in-command time.
11Island Air is authorized by Transport Canada to provide training in RPP, PPL, CPL, and several other ratings (Instructor Rating, Multi-engine Rating, Instrument Rating, VFR Over-the-top Rating and Night Rating).
12When it started in 1994, Island Air offered a full CPL course. This was before the enactment of the Act.
13Starting in 2008, the Superintendent has pursued a course of escalating enforcement with Island Air. The Superintendent issued notices of contravention and Superintendent’s restraining orders requiring Island Air to stop offering vocational training. The Superintendent has also issued administrative monetary penalties for contravening the Act.
14On October 4, 2008, Ministry staff at the Private Career Colleges Branch contacted Island Air regarding a requirement to register as a PCC. Island Air completed the PCC pre-screening process to determine whether the Act required it to seek approval for its Flight Instructor Rating and CPL programs.
15On September 29, 2009, Ministry staff advised Island Air that the above-noted programs require the Superintendent's approval and provided the steps for registration to operate as a PCC and apply for program approval. Ministry Staff further explained that advertising or providing these vocational programs while not being registered and approved was a contravention of the Act.
16Island Air began the registration process and then abandoned it.
17On January 8, 2010, the Superintendent issued a Notice of Contravention including an administrative penalty and a Restraining Order to Island Air relating to advertising on Island Air’s own website regarding CPL and Instructor Rating training.
18On November 7, 2012, the Superintendent issued a Notice of Contravention and Restraining Order to Island Air relating to advertising on Island Air’s own website advertising and offering the CPL program.
19On July 23, 2019, the Superintendent issued a Notice of Contravention and Restraining Order to Island Air relating to operating as a PCC, providing vocational programs, advertising and obstruction.
20With the exception of the first notice of contravention, Island Air has not challenged any of the Superintendent’s orders. Island Air’s challenge to the first order was unsuccessful and the order was upheld on ministerial review.
21Formerly, Island Air provided pilot-in-command flying time, including “cross-country time” and other flying time that could have counted towards a CPL (the “Impugned Flying Time”). Island Air was providing one aspect of one of the requirements that could be counted towards a CPL. However, it did not offer a complete program: there were no CPL ground school courses and there was no testing. No CPLs were approved, and no recommendations were given after August 2019.
22After August 2019, Island Air continued to offer flying time with instruction.
23In June 2021, the Superintendent received a complaint that Island Air was providing CPL and Instructor Rating courses. The complaint included a list of students who had received training at Island Air. The Superintendent provided the list of students to Transport Canada which confirmed that several of the students had obtained test recommendations from another flight school (Canadian Flyers) after receiving flight training at Island Air.
24The Superintendent reviewed Island Air’s records in November 2021. The review of pilot training records revealed 16 students who transferred to Canadian Flyers, obtained a test recommendation from Canadian Flyers, and went on to obtain CPLs or Instructor Ratings. In some cases, the student returned to complete their flying hours at Island Air after having received a test recommendation from Canadian Flyers. In every case, they flew most of their hours at Island Air before transferring briefly to Canadian Flyers.
25After November 2021, Island Air stopped offering the Impugned Flying Time and has not provided same since then.
26There are no safety concerns with respect to Island Air’s operations.
27Island Air is now in the process of registering as a PCC.
THE ISSUES
28There are two issues as follows:
a) Are there reasonable grounds to believe that Island Air has contravened or is likely to contravene the Act and its regulations?
b) Should this Court make an order restraining Island Air from contravening the Act and its regulations?
POSITIONS OF THE PARTIES
29It is the Superintendent’s position that Island Air offers vocational programs including for a CPL or Instructor Rating, that Island Air has clearly contravened the Act, and that a restraining order should be issued. Island Air says no order should be made because there is no current or anticipated contravention of the Act, it is not clear that it ever contravened the Act, the allegations were never tested in a Provincial Offences Court because no charges were ever laid, there is no evidence of danger or harm to the public and the whole dispute may soon be moot because it has applied to be registered as a PCC under the Act.
30Island Air says that it only provided flying experience which could be used for a recreational pilot permit, for a private pilot license, as extra training, or, together with other requirements, as part of a vocational program offered at a private career college.
31It agrees that it provided pilot-in-command flying time including cross-country time which is typically only used for a CPL. It did not provide the specified ground training or written examinations and did not make test recommendations for the CPL. Island Air was providing one aspect of one of the requirements that could be counted towards a CPL. However, it did not offer a complete program: there were no CPL ground school courses and there was no testing done nor recommendations given.
32Island Air says that none of its individual courses constitute a "program", let alone a "vocational program".
ANALYSIS
Issue 1: Reasonable Grounds to Believe Island Air has Contravened or is Likely to Contravene the Act.
33There are reasonable grounds to believe that Island Air contravened the Act prior to August 2019, when it stopped making flight test recommendations. I find that after August 2019 and up until November 2021, when it was offering Flying Time only, it was not offering vocational training programs under the Act.
34Section 47 forms part of the escalating enforcement procedures under the Act.
35Section 47(1) of the Act provides:
On the application of the Superintendent, a judge of the Superior Court of Justice may make an order to restrain a person from contravening this Act or the regulations if the court is satisfied that there are reasonable grounds to believe that the person has contravened or is likely to contravene this Act or the regulations.
36“In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information": Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114. There must be an objective basis for the belief, and it must be more than mere suspicion but less than proof on a balance of probabilities: Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, at para. 72.
37Island Air takes issue with the fact that much of the Superintendent’s evidence is hearsay. However, Island Air’s founder, president and affiant on this application, Mr. Tarsitano, largely admits the facts upon which my findings are based and there are corroborating documents including Island Air’s own website, case notes from site visits to Island Air, Island Air’s daily flying sheets and student invoices. Also, I accept that the Notices of Contravention issued by the Superintendent are orders which Island Air either had to pay or review. Once paid or unsuccessfully reviewed, the orders are evidence of the underlying facts.
38In s. 1(1), the Act defines a private career college as "an educational institution or other institution, agency or entity that provides one or more vocational programs to students for a fee and pursuant to individual contracts with the students." A "vocational program" is defined as "instruction in the skills and knowledge required in order to obtain employment in a prescribed vocation".
39Section 7 prohibits any person from conducting or operating a private career college unless it is registered by the Superintendent under the Act and prohibits anyone who is not registered from holding themselves out as the operator of a private career college. In s. 8, the Act further prohibits a person from offering or providing a vocational program for a fee unless the person is registered, and the provision of the vocational program has been approved by the Superintendent.
40Section 11 prohibits advertising a private career college or the establishment of a private career college unless the person is registered under the Act.
41I accept there are reasonable grounds to believe that in 2010 and 2012, Island Air advertised on its website that it was offering the CPL and Instructor Rating courses. In 2019, Island Air students and flight instructors made social media postings that suggested they were doing training that eventually led to tests for CPL or Instructor Ratings.
42The Superintendent says instruction to qualify for a CPL or Flight Instructor Rating is clearly a vocational program because it is instruction in the skills and knowledge required to obtain employment as a commercial pilot or flight instructor. The Superintendent says Mr. Tarsitano has admitted to providing vocation programs.
43Mr. Tarsitano admitted to providing vocational programs on August 7, 2019, when he wrote to the Superintendent saying, "This is to inform you that we have stopped operating as a private career college, have stopped offering vocational programs, and have insured that any advertising has ceased." This is when Island Air stopped making flight recommendations.
44Mr. Tarsitano also said, “In roughly 380,000 hours of flying since May 1994 to today, we have put over 3,000 pilots into the seats of airlines". This is not an admission that Island Air offers vocational programs as defined under the Act. It is simply a statement that students who took flying lessons at Island Air eventually went on to become commercial pilots working for airlines.
45Mr. Tarsitano did admit that Island Air continued to offer the Impugned Flying Time until November 2021. He said that Island Air instructors continued offering the Impugned Flying Time until 2021 without his knowledge.
46The issue is whether Island Air offered a vocational program" as defined: "instruction in the skills and knowledge required in order to obtain employment in a prescribed vocation".
47The Act does not specify how much instruction constitutes a program. Given the purpose of the Act it would not make sense that providing any amount of instruction that would ultimately be required for a vocation program, no matter how small a component, would render the provider a PCC. For example, offering instruction in the use of firearms would not constitute a vocational program simply because training to be a police officer requires skill in using firearms.
48The word "program" typically refers to an entire curriculum, which provides some sort of certification or attestation upon completion, rather than a single course or a portion of a course. The Britannica dictionary definition includes "a group of classes that lead to a degree; a course of study", as in, "The university has a great graduate program", or "I enrolled in the teaching program".
49An arbitrator has distinguished a "program" from a single course in determining seniority issues under a collective agreement: Hamilton-Wentworth District School Board and O.S.S.T.F. (Re), 2016 CarswellOnt 16090 (Labour Relations Board), at para. 244.
50Although the student would usually only do the Impugned Flying Time if they were looking to complete a CPL, particularly if they already had a RPP or PPL, this is not always the case. It would be difficult, if not impossible, for Island Air to ascertain the future intentions of its students. What if those intentions were to change? Suppose a student took extra flying lessons for practice and then changed her mind and went to a PCC to obtain a CPL? Would that make the lessons previously taken at Island Air a “vocational program” under the Act? Would Island Air have to refuse to provide flying time to people who already have an RPP or PPL unless they were trying to obtain additional ratings?
51With respect to students doing the Instructor Rating flying time, likely most will go on to work as flying instructors for remuneration, but this is not necessarily the case. However, it is not necessary that a student actually obtain employment in order for a program to be vocational. Rather, a vocational program is a program of instruction in the skills and knowledge required in order to obtain employment in a prescribed vocation regardless of whether employment actually ensues.
52In this case, Island Air lost significant revenue after it stopped providing the Impugned Flying Time. The revenue it lost is difficult to quantify because the timing coincided with the Covid-19 pandemic, resulting in a loss of business. However, it appears that the lost revenue far exceeds the revenue that would have been generated by the number of students who took lessons at Island Air and went on to get CPLs according to Transport Canada. This would suggest that not all of the students who did the Impugned Flying Time went on to obtain CPLs.
53I find that providing flying time, even the Impugned Flying Time, in the absence of ground school, testing, and written recommendations, does not mean that Island Air is providing a “vocational program” under the Act. Therefore, there are no reasonable grounds to find that Island Air violated the Act after August 2019 and until November 2021. In the event that I am wrong on this point, there is no evidence that Island Air offered a “vocational program” after November 2021, when it stopped providing the Impugned Flying Time.
54Having found there are reasonable grounds to believe that Island Air did violate the Act (at least before August 2019), I must decide whether to exercise my discretion to issue an order under s. 47.
Issue 2: Should this Court make an Order Restraining Island Air from Contravening the Act and its Regulations?
55Section 47(1) provides this court with discretion to make a restraining order. There are no reported decisions concerning the exercise of this discretion under this Act or similar provisions in other Provinces. Making such an order would elevate any future breaches of the Act by Island Air to contempt of court.
56In determining whether to exercise my discretion to issue an order under s. 47, I will consider the purpose of the Act. The Act regulates two aspects of vocational training: consumer protection and standards. With respect to consumer protection, the Act specifically protects students’ transferability and security of tuition. With respect to standards, the Superintendent has deferred entirely to the regulation by Transport Canada. As set out above, Island Air is authorized by Transport Canada to provide all of the training it has provided and there are no safety concerns.
57There is no concern about transferability; students may take flying lessons at Island Air and then go to a PCC to obtain vocational training. One of the main concerns of the Act is security of tuition because Island Air does not pay into the “Training Completion Assurance Fund” created by section 3 of the Act, which provides security for tuition. However, since Island Air is not offering a full CPL course, the only fees at risk are fees paid for ad hoc flying time.
58Issuing a restraining order under the Act bears resemblance to making an order for a permanent injunction. I will consider the law with respect to granting of permanent injunctions for guidance in determining whether a restraining order under s. 47 is appropriate.
59The Court of Appeal for Newfoundland and Labrador, in Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46, 358 Nfld. & P.E.I.R. 123, at para. 72, set out the following factors to be considered in granting permanent injunctions in the private law context:
a. Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant’s suit should be dismissed).
b. Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed).
c. Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy).
d. If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant’s prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court’s discretion as to whether to deny the injunction remedy.)
e. If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?
f. In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent?
60The NunatuKavut factors have been followed in public law matters: Canadian Civil Liberties Association v. Nova Scotia (Attorney General), 2022 NSCA 64, 476 D.L.R. (4th) 29, at para. 53. There the court considered whether the legislation was sufficiently toothless that a party could treat it as a cost of doing business, whether a party harmed by a breach could invoke the law, and whether serious danger or harm would result from the delay in invoking the statutory remedy.
61In this case, the Superintendent has not proven that any breaches of the Act that did occur are likely to recur. While this is not a requirement for me to make an order under s. 47, it is a factor to consider in deciding whether to exercise my discretion to do so.
62The allegations concerning advertising are quite dated, occurring in 2010, 2012 and 2015, and apparently were based on old information on links on Island Air’s website and another website maintained by a third party. I also note that the Superintendent took the position that advertising attracted strict liability and did not afford Island Air the opportunity to raise a due diligence defence.
63There are no reasonable grounds to believe that advertising is continuing or will occur in the future.
64The most recent notice of contravention from 2019 alleges that social media postings show that vocational training appears to be ongoing, and that Island Air has had numerous graduates go on to test for a CPL or Instructor Rating.
65The allegations relating to test recommendations are from 2019 or before. After 2019 some Island Air students completed their CPL training at Canadian Flyers. Apparently because of an administrative oversight, Canadian Flyers did not seek and was not allowed to grant “advanced standing” meaning they could accept previous flying time from another provider for credit without requiring students to start all over. This administrative error has since been corrected.
66As set out above, there are no grounds to believe that the Impugned Flying Time which could be a component of the CPL or Instructor Ratings courses has been offered since November 2021 and no grounds to believe it will be offered in the future. In fact, Island Air has now applied to become a PCC.
67Island Air submitted that it would have been more appropriate for the Superintendent to lay a charge under the Act and s. 47 should be reserved for only the most grave circumstances. While the Act does contain escalating enforcement procedures, there is no requirement that any particular step(s) be taken before resort to s. 47. Having said that, I do find that the fact that there are adequate alternate remedies, including fines and penalties under the Act and prosecution in Provincial Offences court. This is a relevant consideration in the exercise of my discretion.
68In conclusion, I decline to exercise my discretion to make a restraining order under s. 47. I find that Island Air did violate the Act, but not in any material way, not recently, and not by providing only the Impugned Flying Time. There are no reasonable grounds to believe that Island Air will violate the Act in the future. There are no public safety concerns and no real consumer protection concerns. The Superintendent has shown no likelihood of harm to the public. At best, it has shown that Island Air has not contributed to its "Training Completion Assurance Fund", which is likely of little or no consequence given that Island Air is charging only fees for ad hoc flying time. There is no evidence that future breaches are likely to occur, and the Act has adequate alternative remedies.
COSTS
69The parties have agreed that the successful party on this Application is entitled to costs in the amount of $23,000, inclusive of HST and disbursements and I so order.
Merritt J.
Released: October 13, 2023