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JR - SPD - Delegated. BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
Here the court illustrates statutory sub-delegation [here to Accreditation Canada] wrt the accreditation of medical radiation and imaging technology programs under the Medical Radiation and Imaging Technology Act, 2017 (MRITA) [MRITA, Registration Reg s.1(1)(i)], and how such sub-delegation can tolerate JR justiciability as the exercise of a statutory power:Exercise of Statutory Authority
[64] I find that Accreditation Canada exercised statutory authority as a delegate.
[65] CMRITO has the exclusive power to accredit medical radiation and imaging technology programs, pursuant to s. 4(1)1(i) of O. Reg. 31/24, titled "Registration" made under the Medical Radiation and Imaging Technology Act. Under s. 4(1)1(i), CMRITO is authorized to approve medical radiation and imaging technology programs, or to delegate the approval power to another body. For the sake of convenience, I set out the provision again:4. (1) The following are additional registration requirements for a specialty certificate of registration:
1. The applicant must have successfully completed a medical radiation and imaging technology program in the specialty where the program is,
i. offered at a Canadian institution and was approved by Council or a body or bodies approved by Council for that purpose at the time the applicant successfully completed the program …. [Emphasis added.] [66] CMRITO Policy 13.2 on Accreditation, as approved by its Council, references s. 4(1) and concludes:Council has determined that, for a program to be an approved program for the purpose of subparagraph i, the program must be accredited by Accreditation Canada (the Approved Accreditation Body) …. Accreditation is the public recognition that an educational program has met defined standards. [67] Further, CMRITO Policy 13.3 on Approved Programs states:Council has designated Accreditation Canada (the Approved Accreditation Body) as the body for the purposes of subsection 4(1)(i). [68] I find that in the Decision, Accreditation Canada has exercised its regulatory authority as the designated delegate of CMRITO. Luzak v. Real Estate Council of Ontario (2003), 2003 CanLII 25437 (ON SCDC), 67 O.R. (3d) 530 (Div. Ct.), at paras. 19-33, confirms that a delegation of power can constitute a statutory exercise of authority even where the delegation of power occurs through by-laws.
[69] The evidence on the application supports this conclusion. Mr. Roman Savka, the Director of Health Education Accreditation for Accreditation Canada, agreed that since 2018, further to Policies 13.2 and 13.3, the approved program policies, Accreditation Canada has been CMRITO’s approved accreditation body. Carolyne Morris, the Deputy Registrar and Registration Director of CMRITO, outlined the history of the regulator when it comes to the accreditation process. CMRITO lacks the resources or expertise to accredit approved educational programs and its Council has, since February 1, 2018, approved Accreditation Canada as its accreditation body. The two bodies have signed agreements to that effect. CMRITO also has a right to appoint surveyors to Accreditation Canada’s surveyor team whose roles include advising the team of provincial laws and the education system for the profession. It had appointed two surveyors in BizTech’s case.
[70] Despite this, relying on Fawcett v. Canadian Chiropractic Examining Board, 2010 ONSC 4903 (Div. Ct.), CMRITO maintains that an exercise of statutory authority has not been shown. In my opinion, Fawcett can readily be distinguished. In Fawcett, the respondent was a not-for-profit without-share-capital corporation that administered examinations for provincial licensing bodies that regulated the practice of chiropractic medicine across Canada. Judicial review was not available because, although the regulator relied on these examinations, the respondent did not exercise any delegated statutory authority. The same cannot be said of Accreditation Canada when it made the Decision under s. 4(1)1(i) of O. Reg. 31/24.
[71] Finally, there is no merit to the Respondents’ attempt to distinguish “accreditation” as done by Accreditation Canada and “approval” within the meaning of s. 4(1)1(i) of the regulation. On the record before the Court, there is no meaningful distinction. They are one and the same.
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