Dimascilo v. Ontario

Dimascilo v. Ontario Collection Decisions of the Court of Appeal Date 1999-05-04 Docket numbers C29915 Judges Catzman, Marvin Adrian; Weiler, Karen Merle Magnuson; Farley, James Montague Subject Civil Decision Content DATE: 19990504 DOCKET: C29915 COURT OF APPEAL FOR ONTARIO RE: CAMILLO DIMASCILO (Applicant / Appellant) and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the Minister of Education and Training, and THE SENIOR REGIONAL JUDGE (CENTRAL WEST REGION) OF THE ONTARIO COURT (GENERAL DIVISION) (Respondents) (Respondent in Appeal) and THE DUFFERIN-PEEL ROMAN CATHOLIC SEPARATE SCHOOL BOARD (Intervenor) BEFORE: CATZMAN and WEILER JJ.A. and FARLEY J. (ad hoc) COUNSEL: Eric J. Bungard, for the appellant William J. Burden and John N. Birch for the respondent Her Majesty the Queen Leslie M. McIntosh, for the respondent, the Regional Senior Judge M. Sclisizzi and M.L.O. Certosim for the intervenors HEARD: April 21, 1999 On appeal from the judgment of the Divisional Court (Matlow, Ferrier, Sedgwick JJ.), dated February 24, 1998. ENDORSEMENT [1] The issue on this appeal involves the interpretation of s. 270(10) of the Education Act. [2] The section deals with the circumstance where a teacher has been granted a board of reference but the chair of the board has died after the hearing and before he or she has reported to the Minister. The relevant portion of s. 270(10) provides that a new board of reference may be granted where, “within 90 days after the death…of the chairman…the person who applied for the board of reference requests the Minister in writing to grant another board of reference.” [3] The appellant submits that the Divisional Court erred in concluding that the 90-day period in s. 270(10) is mandatory and that there is no discretionary power available to the Minister to relieve against the applicant’s failure to comply with the requirements. [4] We are of the opinion that the Divisional Court did not err. The appellant’s main submission is that the 90-day period is not a binding limitation period or condition precedent to the granting of a new board of reference. In support of his position the appellant has directed our attention to ss. 270 (3) and (4). Those subsections apply in the circumstances where the initial decision to grant a board of reference has been made. Section 270(3) states that the notice granting the board of reference shall require the teacher to name a representative to the board within twelve days of receiving the notice. Section 270(4) states that if the applicant fails to name a representative, the application is deemed to be abandoned. [5] The appellant submits that the absence of any stipulated consequences for failure to comply with s. 270(10) is indicative that the subsection is intended to be directory only and not mandatory. With respect, we do not agree. Section 270(10) does not oblige the applicant to do anything. The subsection merely provides that the applicant may request another board of reference within 90 days. Inasmuch as the subsection places a discretion or power in the applicant, it is not necessary to stipulate any consequences if no application is made. [6] Section 270(10) was enacted to deal with the very situation which arose in this case. After the death of the chair on February 26, 1996, the appellant’s solicitor met with the school board’s counsel and Regional Senior Justice Carnwath on May 7, 1996. At that meeting, the appellant’s counsel indicated that the “Federation may not be prepared to fund another hearing”. It was therefore not at all clear as of that date that the appellant wished to request a new board of reference. The appellant was in control of the process. In fact, no such request was made until July 31, 1996, some sixty-six days beyond the expiration of the 90-day period. In these circumstances, the Minister was correct in taking the position that he was without jurisdiction to grant a new board of reference in response to the belated request. [7] The appeal is dismissed with costs to the respondent Minister of Education, including costs reserved to this panel, fixed in the total sum of $2,500. “Karen M. Weiler J.A.” “M.A. Catzman J.A.” “J. Farley J.”