DGN Truck & Forklift Driving School v. Ontario Superintendent of Care, 2024 ONSC 5604, released Oct. 15, involved career colleges that offered programs meant to satisfy “minimum education requirements for graduates to qualify for the Class A commercial driver licence examinations.”
In September and October 2023, the respondent, the Superintendent of Career Colleges, issued to revocation of program approval to applicants DGN Truck & Forklift Driving School Ltd. and London Truck and Forklift Driving School, respectively.
The applicants sought judicial review, arguing that the decisions were unreasonable and made in a manner that breached procedural fairness.
In 2021 and 2022, the superintendent sent general letters addressed to career colleges offering the programs in question to remind them of their obligations to ensure the programs were compliant with the Ministry of Transportation’s standards.
In June 2023 the applicants’ programs were investigated and the superintendent issued the revocations after reading the reports. The applicants did not receive notice that their programs were under consideration for revocation, nor were they provided a copy of the investigative reports or a summary. They also did not have an opportunity to respond to investigators’ concerns.
The court allowed a motion for fresh evidence to be introduced to assess the procedural fairness issue that the application turned on.
“The statute does not set out specific requirements that the Superintendent must follow to revoke a career college’s approval to provide a specified vocational program,” the court wrote.
“All that is required is that the Superintendent give the registrant notice of the revocation. The statute does not provide an appeal right from the Superintendent’s decision. The lack of an appeal right is a factor that militates in favour of greater procedural protection.”
It was noted that the applicants were only offering the programs that were revoked, thereby losing all of their business and forcing them to refund student fees. The financial impact was considerable along with the impact on their reputation that resulted from immediate program cancellation and refund, according to facts detailed in the decision.
The superintendent was said to have adopted a progressive model that provided direction on how enforcement actions should be taken based on the registrant’s compliance history, risk and behaviour. It was said that a college without a prior history of complaints or cautions would not be subject to program revocation.
“The investigator’s report to the Superintendent took the position that the Applicants had been cautioned through the General Letters, and that the inherent public safety concerns posed by improperly trained Class A truck drivers justified imposing revocation for the infractions noted,” the court said.
“The Superintendent adopted the same position before us. The General Letters were not a caution. They were not specific to the Applicants and did not outline any concerns that the Superintendent had with the Applicants’ program.”
Due to the severe impact the decision had on the applicants and the lack of appeal rights and that any discipline would be progressive, the superintendent was found to have breached the applicants’ procedural rights when issuing the revocations without providing prior notice of concerns to the applicants and allowing them an opportunity to respond.
The court rejected the respondent’s suggestion that public safety concerns justified immediate revocation. The program materials said by the inspector to be substandard “were materials that the Superintendent had reviewed prior to granting the Applicants’ approval for their programs.” These materials were also previously reviewed without noting any problems.
“While this does not mean that the Superintendent cannot change its standards, it does undermine any suggestion that these materials pose such serious safety concerns that the Applicants had to immediately cease providing any instruction.”
The superintendent’s decisions were set aside by Justices Harriet Sachs, John McCarthy and Frederick Myers. The respondent was to pay costs.
Counsel for the applicants was David Levangie and Alexander Evangelista of Fogler, Rubinoff LLP.
Counsel for the respondent was Andrea Huckins.
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