Statutes – Interpretation – Apprenticeship and Trade Certification Commission Regulations, Section 40
Pursuant to s. 30 of The Apprenticeship and Trade Certification Act, 1999, the appellant appealed from the decision of the Appeal Committee of the Saskatchewan Apprenticeship and Trade Certification Commission that had upheld the decision of the commission to suspend his journeyperson certificate to carry on the trade of an electrician on the grounds of “fraud or misrepresentation” in connection with an examination he wrote to obtain his certificate. The initial decision to suspend the appellant’s certificate was made by an authorized official of the commission pursuant to s. 40(2)(a)(i)(B) of The Apprenticeship and Trade Certification Commission Regulations on the grounds that he obtained his certificate by “fraud or misrepresentation.” During the investigative phase of the commission, the appellant acknowledged that he had gained access to training and exam materials from a Dropbox account and shared such materials with other electrical apprentices. He stated to the investigator that the materials he accessed had not included the examination that he subsequently wrote to obtain his certificate. The exams in question were described as “compromised,” meaning that they had been used in the past for interprovincial examination and had been intended to be kept securely so they could be reused, but as the security had failed, they were labelled “compromised” and after 2017 no longer used in the examinations. The commission took the position that the appellant knew or ought to have known that he should neither have accessed nor shared the materials from Dropbox. The appellant appealed and his statements were presented in evidence during the de novo hearing before the Appeal Committee. The commission argued that the appellant was in the best position to provide information about what exam materials he accessed and what he knew or understood when accessing them. As he chose not to testify at the de novo hearing before the committee, this failure permitted the committee to draw an adverse inference against him. His access to these materials gave him an advantage when writing his exam and this constituted fraud or misrepresentation. The committee made express findings of fact that prior to writing his exam, the appellant gained access to compromised exams and materials and shared them with other apprentices. The majority then concluded, without stating reasons for its conclusion, that the commission’s decision would be upheld and the appeal dismissed. The issues on appeal were whether the committee: 1) erred in law in its conclusion that he obtained his certificate by fraud or misrepresentation: 2) lost jurisdiction by failing to provide reasons; or 3) should be disqualified because all the members of the committee had received a report prepared by the commission prior to the de novo hearing that stated the appellants and others had been properly suspended for fraud and misrepresentation for accessing the materials, and this raised a reasonable apprehension of bias.
HELD: The appeal was allowed and the committee’s decision quashed. The court noted that as this was a statutory appeal, the standard of review was correctness. It interpreted the meaning of “fraud or misrepresentation” in s. 40(2) of the Regulations as unambiguously meaning a false statement, that is, known to be false or made recklessly as to whether it was true or false, intended to induce a party to rely on it to his or her detriment. As the appellant had been granted his certificate pursuant to s. 29(2), the right was vested and if there were any ambiguity in the meaning of “fraud or misrepresentation,” it would be resolved by the presumption against interfering with vested rights. It found with respect to each issue that: 1) the appeal committee had erred in law in its decision. Accepting its factual findings, those facts did not constitute “fraud or misrepresentation” within the meaning of the Act and Regulations. The committee had not undertaken any analysis of the grammatical or ordinary meaning of the phrase. The Regulations existing at the time did not permit a journeyperson certificate that had already been granted to be cancelled for academic dishonesty. To find fraud, the committee would have had to have before it evidence of, and a finding of, actual knowledge on the part of the appellant that what he was doing was wrong or prohibited. A finding that he ought to have known did not constitute fraud. 2) The appeal committee lost jurisdiction by failing to provide adequate reasons and the decision could be quashed on that ground as well. Finally, 3) the committee erred in deciding the appeal only on the basis of the evidence presented to it in the de novo hearing and the fact that it acquired knowledge or information contained in the report raised concern that the committee may have entered the hearing with predetermined views. In light of the court’s decision on the first ground, it was unnecessary to deal with this issue. It awarded party and party costs to the appellant but declined his request for damages because s. 53 of the Act barred such relief in the absence of bad faith. The court also denied his request for solicitor-client costs as there was no evidence that there had been scandalous or reprehensible conduct on the part of the committee.