Canadian College of Business and Computers Inc. et al. v. Superintendent Under the Private Career Colleges Act, (2010) 272 O.A.C. 177 (CA)

• Judge: Rosenberg, Cronk and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 18, 2010
• Jurisdiction: Ontario
• Citations: (2010), 272 O.A.C. 177 (CA);2010 ONCA 856

College of Business v. Superintendent (2010), 272 O.A.C. 177 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.029

Canadian College of Business and Computers Inc. and Pannirshelvan (Shelvan) Kannuthurai (appellants) (respondents on appeal) v. Superintendent, under the Private Career Colleges Act, 2005 (respondent) (appellant on appeal)

(C51474; 2010 ONCA 856)

Indexed As: Canadian College of Business and Computers Inc. et al. v. Superintendent Under the Private Career Colleges Act

Ontario Court of Appeal

Rosenberg, Cronk and Epstein, JJ.A.

December 16, 2010.

Summary:

A private career college operated under authority of the Private Career Colleges Act (Ont.). The Superintendent served the college with a proposal to revoke its registration and immediately suspended its registration pursuant to s. 7(9) of the Act. The college appealed to the License Appeal Tribunal pursuant to s. 7(2). The Tribunal upheld the proposal of the Superintendent to revoke the college's registration. The college and its director/president appealed, seeking to quash the decision and to send the matter back for a re-hearing.

The Ontario Divisional Court, in a decision reported at 251 O.A.C. 221, allowed the appeal, set aside the decision below and sent the matter back to be re-heard by the Tribunal. The Superintendent appealed.

The Ontario Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Licence Appeal Tribunal made a decision pursuant to the Private Career Colleges Act (Ont.) upholding the proposal of the Superintendent to revoke the registration of a private career college - The college appealed, arguing that the adjudicator's comments and questions created a reasonable apprehension of bias that she had pre-judged the honesty and integrity of the college's owner and principal officer (Kannuthurai) - He was a "very challenging and difficult self-represented litigant" - The college relied on, inter alia, statements by the adjudicator that Kannuthurai was misleading the tribunal and her questioning of his involvement with a terrorist organization - The Ontario Divisional Court allowed the appeal, set aside the decision below and sent the matter back to be re-heard by the Tribunal - The adjudicator's impugned comments were irrelevant, inappropriate and improper - An informed and reasonable observer would likely conclude that the adjudicator had pre-judged Kannuthurai's credibility - His honesty and integrity were central to the issue before the adjudicator - A reasonable person may have concluded that the Tribunal had already determined that Kannuthurai would not operate the college in accordance with the law, with integrity and with honesty - The Ontario Court of Appeal dismissed the Superintendent's appeal - The adjudicator's impugned comments created an appearance of unfairness such that an objective observer of the hearing would reasonably conclude that she had pre-judged Kannuthurai's credibility - The Divisional Court correctly concluded that the requisite high threshold to establish a reasonable apprehension of bias was met - See paragraphs 20 to 49.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - The Licence Appeal Tribunal made a decision pursuant to the Private Career Colleges Act (Ont.) upholding the proposal of the Superintendent to revoke the registration of a private career college - The college appealed, arguing that the adjudicator's comments and questions created a reasonable apprehension of bias that she had pre-judged the honesty and integrity of the college's owner and principal officer (Kannuthurai) - The Superintendent argued that the college and Kannuthurai had waived the right to allege bias by failing to raise the allegation at the earliest practicable opportunity - The Ontario Divisional Court rejected the waiver argument - The most egregious comments by the adjudicator arose near the end of the hearing - The litigant was self-represented and there was no suggestion that he held back as a tactic or to avoid an explanation by the adjudicator - The Ontario Court of Appeal agreed - It was unlikely that Kannuthurai, who self-represented, was aware of his right to object to the comments during the hearing on the basis of bias and elected not to do so at the first opportune moment for tactical or strategic reasons - The facts giving rise to a potential bias claim emerged in the final days of the Tribunal hearing - Kannuthurai and the college advanced their bias argument as soon as they had retained counsel to conduct their appeal to the Divisional Court - That appeal was undertaken on a timely basis - See paragraphs 50 to 55.

Administrative Law - Topic 2100

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Practice and remedies - The Licence Appeal Tribunal made a decision pursuant to the Private Career Colleges Act (Ont.) upholding the proposal of the Superintendent to revoke the registration of a private career college - The college appealed, arguing that the adjudicator's comments and questions created a reasonable apprehension of bias that she had pre-judged the honesty and integrity of the college's owner and principal officer (Kannuthurai) - He was a "very challenging and difficult self-represented litigant" - The college relied on, inter alia, statements by the adjudicator that Kannuthurai was misleading the tribunal and her questioning of his involvement with a terrorist organization - The Ontario Divisional Court allowed the appeal, set aside the decision below and sent the matter back to be re-heard by the Tribunal - The Superintendent appealed, arguing that having found that the Superintendent had a strong and largely uncontested case, the Divisional Court should itself have determined the question of whether the college's registration under the Act should be revoked or, alternatively, should have exercised its discretion to refuse to grant a remedy altogether - The Ontario Court of Appeal rejected the argument - There was no basis on which to interfere with the Divisional Court's discretionary decision to require a rehearing in this case - The rehearing should be conducted by a different Tribunal adjudicator - See paragraphs 57 to 72.

Administrative Law - Topic 2100

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Practice and remedies - The Ontario Court of Appeal stated that "... where a reasonable apprehension of bias by an adjudicative decision maker is made out, as in this case, a new hearing is ordinarily the only appropriate remedy. The right to a full and fair hearing by an impartial decision maker is of fundamental importance to our system of justice, including in the administrative law domain ... Indeed, the right to trial by an impartial tribunal is now enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. This right is particularly significant where, as here, the proceeding at issue involves self-represented litigants. I find it difficult to envisage a situation where, bias by an adjudicative decision maker having been established, a new hearing will be refused." - See paragraph 64.

Cases Noticed:

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 21].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 22].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 22, footnote 3].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 23].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 23].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 23].

Chippewas of Mnjikaning First Nation v. Ontario (Minister Responsible for Native Affairs) et al. (2010), 265 O.A.C. 247; 2010 ONCA 47, leave to appeal refused (2010), 409 N.R. 396 (S.C.C.), refd to. [para. 25].

Kelly v. Palazzo et al. (2008), 233 O.A.C. 160; 89 O.R.(3d) 111 (C.A.), leave to appeal refused (2008), 387 N.R. 397; 255 O.A.C. 400 (S.C.C.), refd to. [para. 27].

Peart et al. v. Peel Regional Police Services Board et al. (2006), 217 O.A.C. 269 (C.A.), leave to appeal refused (2007), 368 N.R. 395; 233 O.A.C. 398 (S.C.C.), refd to. [para. 27].

R. v. A.G. (1998), 114 O.A.C. 336 (C.A.), affd. [2000] 1 S.C.R. 439; 252 N.R. 272; 132 O.A.C. 1, refd to. [para. 27].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 51].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 51].

Stetler et al. v. Agriculture, Food and Rural Affairs Appeal Tribunal (Ont.) et al. (2005), 200 O.A.C. 209; 76 O.R.(3d) 321 (C.A.), leave to appeal refused (2006), 352 N.R. 196; 219 O.A.C. 400 (S.C.C.), dist. [para. 54].

MiningWatch Canada v. Canada (Minister of Fisheries and Oceans) et al., [2010] 1 S.C.R. 6; 397 N.R. 232; 2010 SCC 2, refd to. [para. 60].

Mobil Oil Canada Ltd. et al. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; 163 N.R. 27; 115 Nfld. & P.E.I.R. 334; 360 A.P.R. 334, refd to. [para. 60].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 60].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 65].

Marchand v. Public General Hospital Society of Chatham et al. (2001), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), leave to appeal refused (2001), 282 N.R. 397; 156 O.A.C. 358 (S.C.C.), refd to. [para. 65].

Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG et al., [2007] 4 F.C.R. 101; 359 N.R. 84, refd to. [para. 66].

Young v. College of Teachers (B.C.), [1999] B.C.J. No. 1908 (S.C.), affd. (2001), 150 B.C.A.C. 228; 245 W.A.C. 228; 198 D.L.R.(4th) 292 (C.A.), refd to. [para. 68].

Lisyikh v. Police Foundations Department of Canadian Law Enforcement Training College, [2007] O.T.C. Uned. J72 (Sup. Ct.), refd to. [para. 68].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2010 Looseleaf), pp. 11-77 to 11-78 [para. 52].

Mullan, David J., Essentials of Canadian Law, Administrative Law (2001), p. 348 [para. 51].

Woolf, Harry, Jowell, Jeffrey L., and Le Sueur, Andrew P., de Smith's Judicial Review (6th Ed. 2007), c. 10-055 ff. [para. 52].

Counsel:

Sara Blake and Tom Schreiter, for the appellant;

Julian N. Falconer and Sunil S. Mathai, for the respondents.

This appeal was heard on October 18, 2010, before Rosenberg, Cronk and Epstein, JJ.A., of the Ontario Court of Appeal. Cronk, J.A., delivered the following decision for the Court of Appeal on December 16, 2010.