Superintendent of Private Career Colleges v. Island Air Flight School, 2023 ONSC 5794.
Alan Cofman successfully helped Island Air, a pilot training school, to resist provincial intrusion under the Private Career Colleges Act.
The Honourable Justice Merritt of the Ontario Superior Court of Justice distinguished the Recreational Pilot Permits that the school was issuing from Commercial Pilot Licences, which were beyond its ambit. Accordingly, the Court declined to issue a restraining order under section 47 of the Act, which would have effectively shuttered the school.
The decision is important, in part, because flying an airplane comes squarely within federal jurisdiction, while running a private career college comes within provincial jurisdiction. This was the first known decision to ever address the definition of a “vocational program” in order to delineate the boundaries of provincial jurisdiction, or to consider the factors that ought to be considered when the Crown requests a statutory restraining order.
On the facts, the school had an exemplary record of compliance with Transport Canada, but it had a checkered history with provincial officials. The Crown asserted that Island Air’s training was “vocational” in nature – and therefore subject to provincial jurisdiction – since some of the flying time from one of its courses could theoretically be counted towards a commercial pilot’s licence. This was notwithstanding the fact that Island Air did not offer the rest of the requirements for a commercial licence, such as ground school courses, testing, or instructor recommendations to Transport Canada for Commercial Pilot Licences. The Crown was particularly interested in the fact that some of Island Air’s students and staff moonlighted at, or transferred to, another flying school, which did have a Commercial Pilot Licence program.
Regarding the proposed restraining order, her Honour agreed that the appropriate factors could be taken by analogy to permanent restraining orders at common law. On those factors, her Honour declined to intervene, including because it was unlikely that Island Air would commit any future violations of the Act, and because the Crown had les draconian options to test its allegations, such as to prosecute charges in the Provincial Offences Court.
Substantively, her Honour agreed the Island Air program was not vocational in the absence of ground school, testing, or instructor recommendations; and she found no merit in the alleged connection to another school (which had stopped granting transfer credit by the time of the hearing). She also specifically found that no course was vocational merely by virtue that a student might try to claim the hours towards a Commercial Pilot Licence. In short, the school was free from provincial jurisdiction.
Read the decision here.
The time for appeal has expired.