ONTARIO REGULATION 391/11

made under the

POST-SECONDARY EDUCATION CHOICE AND EXCELLENCE ACT, 2000

Made: August 17, 2011
Filed: August 19, 2011
Published on e-Laws: August 23, 2011
Printed in The Ontario Gazette: September 3, 2011


Amending O. Reg. 279/02

(Consents under the Act)

Note: Ontario Regulation 279/02 has not previously been amended.

1. The title to Ontario Regulation 279/02 is revoked and the following substituted:

GENERAL

2. Subsection 1 (1) of the Regulation is amended by adding the following definitions:

“date of the forfeiture” means the date on which the Minister gave the direction to the authorized issuer or guarantor to pay the amount of the security to the Crown;

“forfeited security” means the security paid to the Crown;

“Tribunal” means the Licence Appeal Tribunal established by the Licence Appeal Tribunal Act, 1999;

3. The Regulation is amended by adding the following Part:

PART I.1
APPLICATIONS FOR CONSENT

Referral to accrediting or quality assurance body other than the board

1.1 (1) This section applies with respect to referrals made under subsection 5 (2) of the Act.

(2) Subject to subsection (3), the Minister shall not refer an application for a consent or renewal of a consent to an accrediting or quality assurance body or authority that is not the Post-secondary Education Quality Assessment Board unless the Minister,

(a) requests the board’s advice regarding,

(i) whether the accrediting or quality assurance body or authority is at arm’s length with the applicant,

(ii) whether the standards, processes and criteria used by the body or authority in relation to accreditation or quality assurance are consistent with the standards, processes and criteria used by the board,

(iii) whether the body or authority has a history demonstrating that it consistently applies the standards, processes and criteria to the program reviews that it conducts and the extent of that history, and

(iv) the date after which it is likely that the advice provided under subclauses (i) to (iii) will no longer be relevant;

(b) gives full consideration to the board’s advice; and

(c) is satisfied that the board’s advice supports a decision to refer the application to the body or authority.

(3) The Minister is not required to request the board’s advice if,

(a) within five years before the day the Minister receives the application referred to in subsection (2),

(i) the Minister had requested the board’s advice in accordance with clause (2) (a) in respect of the same body or authority, and,

(ii) after considering the advice, referred an application to the body or authority; and

(b) after the Minister receives an application referred to in subsection (2), he or she,

(i) gives full consideration to the advice referred to in clause (a), and

(ii) is satisfied that the accrediting or quality assurance body or authority meets the conditions set out in clause (2) (c).

Rejecting applications, no referral

1.2 (1) The Minister may consider the following criteria in rejecting an application for consent or renewal of consent under subsection 5 (2.1) of the Act:

1. The impact of the consent on the viability of the same or similar programs offered by post-secondary educational institutions that receive regular and ongoing operating funds from the province.

2. The direct or indirect impact of the consent on demands for payment or other expenditures out of public funds.

3. The impact of the consent on the ability of post-secondary educational institutions that receive regular and ongoing operating funds from the province to secure sufficient program-related practicums or other clinical or workplace placements for their students who are in programs where the practicums or placements are integral components of the programs.

4. The consistency of the consent with government announcements and policies relating to the labour market or human resource planning in Ontario.

5. The impact of the past conduct of the following on the grounds to believe that the program will be operated in accordance with the law and with integrity and honesty:

i. The applicant.

ii. If the applicant is a corporation or a body that has the powers of a corporation, its officers, directors or any other individual who directly or indirectly controls the corporation.

(2) For the purposes of paragraph 4 of subsection (1), inconsistency with government announcements and policies relating to the labour market or human resource planning in Ontario may be determined with reference to any limitations on the number of individuals that may graduate from a specified program offered by a post-secondary educational institution that receives regular and ongoing operating funds from the province.

Deemed referral and recommendation

1.3 The Minister may make a decision under subsection 5 (3.1) of the Act to deem that a review is a referral and to deem that an approval is a recommendation if all of the following circumstances exist:

1. The prior quality assurance review referred to in clause 5 (3.1) (a) of the Act was conducted, and the approval referred to in clause 5 (3.1) (b) of the Act was made, within two years before the day the Minister makes the decision.

2. The prior review was conducted by an accrediting or quality assurance body or authority, that is not the Post-secondary Education Quality Assessment Board, in respect of which, within five years before the day the Minister makes the decision,

i. the Minister had requested the board’s advice in accordance with clause 1.1 (2) (a), and,

ii. after considering the advice, the Minister referred an application to the body or authority.

3. Before making the decision, the Minister gives further consideration to the advice referred to in paragraph 2.

4. If the Minister requires additional information for the purpose of making the decision, the Minister is satisfied that the applicant in respect of whom the decision is being made has taken all reasonable steps to ensure that the required information is provided to the Minister.

4. The heading to Part II and the heading immediately before section 2 of the Regulation are revoked and the following substituted:

PART II
CONSENTS

Public Institutions — Prerequisite for Consent

5. The heading immediately before section 3 of the Regulation is revoked and the following substituted:

Public Institutions — Conditions that Apply to Consents

6. (1) Paragraph 2 of subsection 3 (2) of the Regulation is revoked.

(2) Paragraph 3 of subsection 3 (2) of the Regulation is amended by adding “including any credits or credentials recognized by the institution for the purposes of the student’s program but awarded by another institution” at the end.

7. The heading to Part III and the heading immediately before section 4 of the Regulation are revoked and the following substituted:

Private Institutions — Prerequisites for Consent

8. The heading immediately before section 6 of the Regulation is revoked and the following substituted:

Private Institutions — Conditions that apply to Consents

9. (1) Paragraph 2 of subsection 6 (2) of the Regulation is revoked.

(2) Paragraph 3 of subsection 6 (2) of the Regulation is amended by adding “including any credits or credentials recognized by the institution for the purposes of the student’s program but awarded by another institution” at the end.

10. The Regulation is amended by adding the following Parts:

PART III
CLAIMS AGAINST SECURITY

Application of Part

13. This Part governs claims made against security maintained by a private institution in connection with a consent given under the Act for a program, if the security has been paid to the Crown as a result of a direction given by the Minister.

Claim for payment

14. (1) An individual who is or was a student in the program, as the case may be, for which the security was maintained may apply in writing to the Minister for a payment from the forfeited security within two years after the date of the forfeiture.

(2) The individual is eligible for a payment if he or she is entitled to a refund of tuition fees for the program, as the case may be, and has not been paid the amount to which he or she is entitled.

(3) The amount that an individual is eligible to claim is the amount of the refund of tuition fees that has not been paid.

(4) For the purposes of this section, an individual’s entitlement to a refund of tuition fees is to be determined with reference to the conditions of the consent given under the Act for the program as set out in Part II.

Payment of claims

15. (1) If the Minister is satisfied that a claim is valid, he or she shall pay the claim in accordance with this section.

(2) If the amount of the forfeited security paid to the Crown is sufficient to satisfy all claims against the security made within two years after the date of forfeiture, the Minister shall pay the full amount of each claim.

(3) If the amount of the forfeited security paid to the Crown is not sufficient to satisfy all those claims, the Minister shall make proportionate payments with respect to each claim.

(4) If the amount of the forfeited security paid to the Crown exceeds the amount required to satisfy all those claims, the Minister shall pay the excess amount to the authorized issuer or guarantor of the security.

PART IV
DECISIONS, ORDERS AND APPEALS

Decisions and Orders

General requirements

16. A decision by the Minister to amend, suspend, revoke or reinstate a consent under section 6 of the Act or an order made by the Minister under section 10 of the Act must be made in writing and must set out the reasons for the decision or order.

When decision or order effective

17. (1) A decision or order that may be appealed to the Tribunal comes into effect on the date specified in the decision or order or 15 days after the day on which the decision or order is served on, or deemed under subsection 12.1 (5) of the Act to be served on, the person who has the affected consent, whichever is later.

(2) If a decision or order is appealed to the Tribunal or to the Divisional Court, the decision or order is stayed until the appeal is finally determined unless the Tribunal or Court, as the case may be, decides otherwise.

Appeal of order

18. A person in respect of whom the Minister makes an order under section 10 of the Act may appeal the order to the Tribunal by filing a notice of appeal with the Tribunal within 15 days after the person receives the order.

Amendment of a Consent

Amendment upon request

19. (1) Upon the written request of the person who has a consent, the Minister may amend the consent under clause 6 (1) (c) or (d) of the Act to authorize an existing program to be offered at one additional campus or premises specified in the amendment.

(2) Section 20 of this Regulation does not apply with respect to an amendment requested by the person who has the consent.

Appeal if a request is refused

20. (1) A person whose request for an amendment under section 19 is refused in whole or in part may appeal the refusal to the Tribunal.

(2) A college of applied arts and technology is not entitled to appeal a refusal, in whole or in part, of a request to make an amendment.

Proposal to amend a consent

21. (1) If the Minister proposes to amend a consent under clause 6 (1) (c) or (d) of the Act, the Minister shall give notice of the proposal, together with reasons, to the person who has the consent.

(2) The notice must be in writing and it must indicate that the person is entitled to make written representations about the proposed amendment within 30 days after the notice is given or within such longer period as the notice may specify.

(3) The Minister shall consider such representations as he or she received within the period specified in the notice.

(4) After the period for making representations has expired, the Minister may proceed with the amendment either as it was described in the proposal or with such changes as he or she considers appropriate; the Minister may also decide not to proceed further with the proposal.

(5) The Minister shall give notice of his or her decision concerning the proposal to the person who has the consent.

Appeal of an amendment

22. (1) A person whose consent is amended under clause 6 (1) (c) or (d) of the Act may appeal the amendment to the Tribunal by filing a notice of appeal with the Tribunal within 15 days after the person receives the decision amending the consent.

(2) An amendment requested under section 19 of this Regulation cannot be appealed in whole or in part.

(3) A person cannot appeal an amendment if the person did not make written representations about the proposed amendment in accordance with section 21 of this Regulation.

(4) If the amendment made by the Minister is different from the proposed amendment, a person may appeal the amendment, despite subsection (3), even though the person did not make written representations about the proposed amendment.

(5) A college of applied arts and technology is not entitled to appeal an amendment in whole or in part.

Cancellation of a Consent

Cancellation upon request

23. (1) The Minister may cancel a consent under clause 6 (1) (a) of the Act upon the written request of the person who has the consent and may impose conditions with respect to the cancellation.

(2) The written request must be made in a form approved by the Minister.

Suspension of a Consent

Proposal to suspend a consent

24. (1) If the Minister proposes to suspend a consent under clause 6 (1) (a) of the Act, the Minister shall give notice of the proposal, together with reasons, to the person who has the consent.

(2) The notice must be in writing and it must indicate that the person is entitled to make written representations about the proposed suspension within 30 days after the notice is given or within such longer period as the notice may specify.

(3) The Minister shall consider such representations as he or she received within the period specified in the notice.

(4) After the period for making representations has expired, the Minister may proceed with the suspension either as it was described in the proposal or with such changes as he or she considers appropriate; the Minister may also decide not to proceed further with the proposal.

(5) The Minister shall give notice of his or her decision concerning the proposal to the person who has the consent.

Immediate suspension

25. (1) Despite section 24 of this Regulation, the Minister may decide to suspend a consent under clause 6 (1) (a) of the Act without first making a proposal if, in his or her opinion, the suspension is necessary for the immediate protection of the interests of students.

(2) Without limiting the generality of subsection (1), the Minister may decide that a suspension is necessary for the immediate protection of the interests of students if the person with the consent does not maintain the security or the trust fund, if any, required by the consent for prepaid tuition fees.

Appeal of a suspension

26. (1) A person whose consent is suspended under clause 6 (1) (a) of the Act may appeal the suspension to the Tribunal by filing a notice of appeal with the Tribunal within 15 days after the person receives the decision suspending the consent.

(2) A college of applied arts and technology is not entitled to appeal a suspension under clause 6 (1) (a) of the Act.

Revocation of a Consent

Proposal to revoke a consent

27. (1) If the Minister proposes to revoke a consent under clause 6 (1) (a) of the Act, the Minister shall give notice of the proposal, together with reasons, to the person who has the consent.

(2) The notice must be in writing and it must indicate that the person is entitled to make written representations about the proposed revocation within 30 days after the notice is given or within such longer period as the notice may specify.

(3) The Minister shall consider such representations as he or she received within the period specified in the notice.

(4) After the period for making representations has expired, the Minister may proceed with the revocation either as it was described in the proposal or with such changes as he or she considers appropriate; the Minister may also decide not to proceed further with the proposal.

(5) The Minister shall give notice of his or her decision concerning the proposal to the person who has the consent.

Appeal of a revocation

28. (1) A person whose consent is revoked under clause 6 (1) (a) of the Act may appeal the revocation to the Tribunal by filing a notice of appeal with the Tribunal within 15 days after the person receives the decision revoking the consent.

(2) A college of applied arts and technology is not entitled to appeal a revocation under clause 6 (1) (a) of the Act.

Reinstatement of a Consent

Proposal to reinstate a consent

29. (1) If the Minister proposes to reinstate a consent under clause 6 (1) (b) of the Act, with or without conditions, the Minister shall give notice of the proposal, together with reasons, to the person who had the consent.

(2) The notice must be in writing and it must indicate that the person is entitled to make written representations about the proposed reinstatement within 30 days after the notice is given or within such longer period as the notice may specify.

(3) The Minister shall consider such representations as he or she received within the period specified in the notice.

(4) After the period for making representations has expired, the Minister may proceed with the reinstatement either as it was described in the proposal or with such changes as he or she considers appropriate; the Minister may also decide not to proceed further with the proposal.

(5) The Minister shall give notice of his or her decision concerning the proposal to the person who had the consent.

Appeal of a reinstatement

30. (1) A person whose consent is reinstated under clause 6 (1) (b) of the Act with or without conditions may appeal the reinstatement or any condition of the reinstatement to the Tribunal by filing a notice of appeal with the Tribunal within 15 days after the person receives the decision reinstating the consent.

(2) A person cannot appeal the reinstatement or a condition if the person did not make written representations about the proposed reinstatement in accordance with section 29 of this Regulation.

(3) A college of applied arts and technology is not entitled to appeal a reinstatement.

Appeals

Powers of the Tribunal

31. (1) On an appeal, the Tribunal may make any order that the Tribunal considers appropriate and may substitute its opinion for that of the Minister.

(2) Without limiting the generality of subsection (1), the Tribunal may refer a matter back to the Minister for reconsideration.

(3) The Tribunal may attach such conditions to its order as it considers appropriate.

Procedural matters

32. (1) The parties to an appeal to the Tribunal are the appellant and the Minister.

(2) The appellant has the onus of proving that the Minister’s decision or order is unreasonable.

(3) The oral evidence taken before the Tribunal must be recorded and, if so required, copies of a transcript of the oral evidence must be furnished upon the same terms as in the Superior Court of Justice.

Appeal to court

33. An order of the Tribunal may be appealed to the Divisional Court.

General

Notices

34. (1) Notices required by this Regulation may be given to a person by ordinary mail or by personal delivery or by fax to the person’s address as reflected in the records of the Ministry or, if the person is a corporation, to its head office in Ontario as reflected in the records of the Ministry.

(2) A notice sent by ordinary mail shall be deemed to have been received on the third day after the date on which it is mailed.

PART V
ADMINISTRATIVE PENALTIES

Prescribed penalties for prescribed contraventions

35. (1) The administrative penalty for the first contravention of one or more provisions set out in a single item of Table 1 is the amount set out for that item in Column 2 of Table 1.

(2) If, within three years after the first contravention of a provision set out in an item of Table 1, a subsequent contravention of a provision set out in the same item occurs, the administrative penalty is,

(a) for the second contravention, twice the amount set out for that item in Column 2 of Table 1;

(b) for the third contravention, three times the amount set out for that item in Column 2 of Table 1;

(c) for each contravention after the third, four times the amount set out for that item in Column 2 of Table 1.

(3) If a contravention of one or more provisions set out in a single item of Table 1 continues for more than three successive days after the day the notice of contravention is served or deemed to be served under subsection 12.1 (5) of the Act, and the Minister or his or her designate determines that the circumstances described in one or more paragraphs of subsection (4) exist, the administrative penalty is determined according to the following formula:

A × B

where,

A is the amount determined under subsection (1) or (2), and

B is the number of successive days, following the first three days after the day the notice of contravention is served or deemed to be served under subsection 12.1 (5) of the Act, that the contravention of a provision set out in that item continues.

(4) The circumstances referred to in subsection (3) are the following:

1. The person has a history of non-compliance with the Act or the regulations, as evidenced by,

i. reports on the results of inspections conducted under section 9 of the Act,

ii. orders made by the Minister under section 10 or 10.9 of the Act, or

iii. convictions for offences committed under section 11 of the Act.

2. The person is contravening or has previously contravened section 2 or 3 of the Act.

(5) When issuing a notice of contravention to a person under subsection 10.2 (1) of the Act, the Minister’s designate shall issue only one notice of contravention for all contraventions that have occurred or are occurring at the same time.

(6) The maximum total amount that a notice of contravention may require a person to pay for all contraventions set out in the notice is $250,000.

Application for review of notice of contravention

36. An application to the Minister under subsection 10.2 (6) of the Act for review of a notice of contravention shall set out the grounds on which the review is sought and shall be accompanied by the documentary evidence, if any, that is relevant to the review.

11. The Regulation is amended by adding the following Table:

TABLE 1
ADMINISTRATIVE PENALTIES

Item

Column 1

Column 2

 

Contravened Provisions, with Headnotes

Amount of Administrative Penalty ($)

1.

Act, s. 2 — Prohibition against granting a degree, etc.

1,000

2.

Act, s. 3 — Prohibition against operating or maintaining a university, etc.

1,000

3.

Act, s. 4 (3) — Duty to comply with terms and conditions of consent

750

4.

Act, s. 6 (2) — Duty to provide notice of potential non-compliance with consent

750

5.

Act, s. 9 (6) — Duty to assist inspector

1,000

6.

Act, s. 9 (11) — Prohibition against obstructing inspector

1,000

7.

Act, s. 10.9 — Failure to comply with Minister’s order made under s. 10.9 of the Act

1,000

8.

O. Reg. 279/02, s. 2 and s. 4 — Duty re accessibility of transcripts

750

9.

O. Reg. 279/02, s. 3 and s. 6 — Duty re transcript standards

750

10.

O. Reg. 279/02, s. 7 — Prohibition against collecting more than 12 months of tuition fees

750

11.

O. Reg. 279/02, s. 8 — Duty re tuition fee refunds

500

12.

O. Reg. 279/02, s. 10 — Duty re trust funds for unearned tuition fee revenue

750

13.

O. Reg. 279/02, s. 11 — Duty re security required during the term of a consent

750


Commencement

12. This Regulation comes into force on the later of January 1, 2012 and the day this Regulation is filed.