Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 21, 2019 5 www.lawtimesnews.com BY GABRIELLE GIRODAY Law Times A RECENT Ontario Superior Court of Justice decision focuses on a battle between a vocational college and the provincial gov- ernment of Ontario, after the college alleged they were victims of an "excessively protracted reg- ulatory compliance process im- posed on them by the province," and launched an action to claim damages. The judgment in Career Blazers Learning Centre v. Ontario, 2019 ONSC 240 centres on whether the plaintiffs had launched their claim within a two-year limitation period, which is a requirement if the claim is to proceed. The plaintiffs — listed as the college, and its owners Norine Roussain and Peter Roussain — took the position that the claim had indeed been launched with- in the two-year window that is required under the Limitations Act, and brought a motion for summary judgment on the matter. However, the province — which was named as defen- dants in the matter — disagreed. Ultimately, Justice Edward Mor- gan sided with the plaintiff, and ruled "the action was com- menced within the two-year time period." The ruling indicates that in February 2010, the province's Ministry of Training, Colleges, and Universities did a compli- ance inspection at the college, and then issued a restraining order that stopped the college from operating in March 2010. Shortly after, the province re- scinded it, in order "to give the plaintiffs a chance to bring their business into compliance," said the ruling. However, in June 2010, the province re-issued the order and posted it on the provincial web- site. "It is this second restraining order that is the subject of the damages claim. The plaintiffs allege that once the restraining order was in place, the ministry's involvement with them dimin- ished and its response times be- came excessively slow," said the ruling. In December 2010 the min- istry responded. "In this corre- spondence, the ministry finally outlined its position with re- spect to the plaintiffs' non-com- pliance. The matter then came to a near halt," the ruling stated. "During the course of the next [nine] months there was occasional correspondence be- tween the parties, but the plain- tiffs allege that the ministry failed to seriously address the matter or allow it to move ahead. On August 18, 2011, counsel for the plaintiffs informed the min- istry that the restraining order and the ministry's actions (or, perhaps, its inaction) in dealing with the plaintiffs was 'effec- tively killing' the Plaintiffs' busi- ness." By September 2011, the plain- tiffs went to the Ontario Om- budsman for help. "Counsel for both parties here acknowledge that it was the involvement of the Ombuds- man that finally resulted in the matter being addressed and the plaintiffs being declared to be in compliance. On Dec. 21, 2011, the plain- tiffs achieved full compliance with the regulations under the Private Career Colleges Act. A month later, on Jan. 12, 2012, the ministry finally acknowledged and confirmed this compliance and changed the restraining or- der to ref lect a compliance date of Dec. 21, 2011," said the ruling. But the matter wasn't finished. Discussions continued with the ombudsman about potential compensation for the plaintiffs over the closure, before the Om- budsman closed its file in June 2013 and a final offer was made by the province, in July 2013. No agreement was reached. In June 2015, the plaintiffs launched their claim. "The parties differ . . . in their view of when the limitation pe- riod actually began. According to defendant's counsel, the limi- tation period started running from the date the restraining order was re-issued, since as of that date the plaintiffs under- stood that they were incurring the losses that they now claim," said the ruling. "Defendant's counsel con- cedes, however, that the limi- tation period was tolled from March 12, 2012 (the earliest date in which monetary com- pensation was without a doubt discussed) until June 24, 2013 (the date on which the Ombuds- man's file was closed). It is the defendant's view that compensa- tion for monetary losses was on the table all along as far as the plaintiffs were concerned, and that counsel for the plaintiffs had threatened litigation well before the ombudsman was en- gaged," added the ruling. Morgan sided with the plain- tiffs, and ultimately concluded that the start date for the limi- tation period on the claim was when the Ombudsman closed its file, in June 2013. "[P]laintiffs' counsel correctly identifies that date as the start- ing date for the running of the limitation period. It would have been appropriate to bring an ac- tion any time after June 24, 2013, so long as the plaintiffs did not receive compensation for their business losses. These losses could potentially include losses incurred prior to January 12, 2012, when the plaintiffs were not in compliance due, allegedly, to delay by the defendant in en- gaging the compliance process," said the ruling. Yehuda Levinson, principal of Levinson & Associates Bar- risters and Solicitors in Toronto, who represented the plaintiffs in the matter, says the "really nice point that comes out of this is that there's now been a clear importation into the civil law limitation period issue of the administrative law principle of prematurity." "In this particular case, the obvious remedy for Career Blaz- ers was not to bring a civil action at all, the obvious issue when you're faced with decisions of an administrative tribunal on a compliance issue — and that's what this had to do with — is that you work with the tribunal to solve them," he says. "Until there is compliance, even if there was no internal ad- ministrative law procedure to follow, you could never success- fully bring a civil action . . . how can you have damages when you're not in compliance?" Levinson says the issue that presented in the case are delays his clients had to deal with. "This started in March of 2010. There was not a final resolution until the Ombudsman got involved in January 2012, which is really, by then, a school is basically dead," he says. "So, the real point that comes out of this is that if you're in an administrative law situation, it's reasonable that you pursue that avenue before you consider civil action." Levinson says there are im- portant takeaways for civil liti- gators, and other lawyers. "What you take away from this, is that if you have a case where a client is considering damages arising out of the con- duct of a tribunal, your limi- tation period doesn't start to run until you've exhausted the administrative law process," he says. "That's the bottom line." Christopher Wirth, a partner at Keel Cottrelle LLP, says the ruling "reinforces the difficulty of successfully establishing the limitations defence on a sum- mary judgment . . . that it will be the rare case where things are clear enough that a court will make such a finding." He says the ruling is applica- ble to other Canadian jurisdic- tions. "I guess the lesson to regula- tors is that they're holding — in the case of businesses — the future of that business in their hands, if they're not dealing with matters in a timely basis," says Wirth. LT NEWS Judge sides with plaintiffs Legal battle over limitation period Yehuda Levinson says a recent judgment shows that in 'an administrative law situation, it's reasonable that you pursue that avenue before you consider civil action.' "I guess the lesson to regulators is that they're holding — in the case of businesses — the future of that business in their hands, if they're not dealing with matters in a timely basis." Christopher Wirth TWO JUDICIAL VACANCIES ONTARIO COURT OF JUSTICE The Judicial Appointments Advisory Committee advises the Attorney General of Ontario on the appointment of Judges to the Ontario Court of Justice, and invites applications for judicial positions in the following locations: LINDSAY (1) – criminal OSHAWA (1) – criminal These appointments also involve travel within the regional boundaries as assigned by the Regional Senior Justice and/or the Chief Justice. The minimum requirement to apply to be a Judge in the Ontario Court of Justice is ten years completed membership as a barrister and solicitor at the Bar of one of the Provinces or Territories of Canada. All candidates must apply either by submitting 14 copies of the current (July 2017) completed Judicial Candidate Information Form in the first instance or by a short letter (14 copies) if the form has been submitted within the previous 12 months. Should you wish to change any information in your application, you must send in 14 copies of a fully revised Judicial Candidate Information Form. If you wish to apply and need a current Judicial Candidate Information Form, or if you would like further information, please contact: Judicial Appointments Advisory Committee Tel: (416) 326-4060 Fax: (416) 212-7316 Website: www.ontariocourts.ca/ocj/jaac/ All applications, either sent by courier, mail or hand delivery, must be sent to: Judicial Appointments Advisory Committee c/o Ministry of Government and Consumer Services Mail Delivery 77 Wellesley Street West, Room M2B-88 Macdonald Block, Queen's Park Toronto, Ontario, M7A 1N3 Applications must be on the current prescribed form and must be TYPEWRITTEN or COMPUTER GENERATED and RECEIVED BY 4:30 p.m. on Friday, February 8, 2019. CANDIDATES ARE REQUIRED TO PROVIDE 14 COPIES OF THEIR APPLICATION FORM OR LETTER*. A Fax copy will be accepted only if 14 copies of the application or letter are sent concurrently by overnight courier. Applications received after this date WILL NOT be considered. *NOTE: Candidates MUST provide 14 copies of their application form or letter for EACH vacancy LOCATION for which they wish to be considered. The Judiciary of the Ontario Court of Justice should reflect the diversity of the population it serves. Applications from members of equality-seeking groups are encouraged. Untitled-2 1 2019-01-15 4:31 PM

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