Cabinet - Advice. Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board
In Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board (Ont CA, 2023) the Court of Appeal considered a cabinet-tribunal relationship, here where the Cabinet sought a tribunal's advice on when to proclaim legislation that would grant an educational institute university status:
(1) The Minister’s decision to refer CCC’s application to the Board
 First, the appellant takes issue with the Minister’s decision to refer the CCC application to the Board. The appellant argues that, in effect, the Minister created a hybrid approach that exceeded his authority under the PSECE Act, involving both legislation conferring on CCC the status of a university and a distinct process for ministerial approval informed by a recommendation by the Board based on its independent review of CCC’s application.
 The statutory language governing the Minister’s referral of CCC’s application is s. 7(3) of the PSECE Act:
The Board shall, The Minister’s decision to refer CCC’s application, according to the Divisional Court, was rooted in the authority provided under the PSECE Act. The court held, at paras. 53-54:
(a) review applications made under section 5 and other matters referred to it by the Minister and make recommendations to the Minister in a manner and within a time period specified by the Minister.
Under the [PSECE Act], an institution may not grant a degree or call or hold itself out to be a university unless authorized by (i) statute or (ii) the Minister of Training, Colleges and Universities: ss. 2(1) and (3). An institution may pursue the second approach by filing an application for Ministerial consent under s. 5 of the [PSECE Act]. In rejecting CCC’s argument, the Divisional Court emphasized that s. 7(3) of the PSECE Act does not limit the Board’s role to s. 5 matters. The language is much broader and includes “any other matters referred to it by the Minister”. The Divisional Court rejected CCC’s argument that this language did not authorize the Minister to refer matters to the Board as a means of effectively overriding the will of the legislature.
According to CCC, the legislative regime clearly sets up two distinct paths: the legislative and the Ministerial consent path. The Board is to become involved if an institution has chosen the Ministerial consent path, not if it has chosen the legislative amendment path. In this case the Minister created what the Applicant describes as a “hybrid process”, which involved the Board in a case where the institution was not seeking Ministerial consent. This process was ultra vires the Minister’s authority and contrary to the purpose of the legislative scheme.
 I see no error in this analysis.
 The appellant submits that, in University of Ontario Institute of Technology v. Ontario (Finance), 2016 ONSC 7741 (“UOIT”), the Superior Court affirmed that the legislative and ministerial consent routes are mutually exclusive, thereby confirming that the hybrid process created here is outside the bounds of the PSECE Act. In that case, the court observed that UOIT was required to apply to the Minister for consent to call itself a university and to grant degrees because its enabling statute did not yet grant it these rights.
 UOIT was about the tax status of an institution granted authority to confer degrees as a university. The court did not consider the viability of a hybrid approach but rather confirmed the existence of two different routes to obtain the authority to confer degrees as a university – by express authority conferred by an Act of the Legislature or by degree-granting authorizations “by the Minister” in s. 2 and s. 5 of the PSECE Act.
 In my view, this case does not stand for the proposition that the hybrid approach adopted by the Minister in the context of the CCC application was in any way ultra vires.
 Looking at the text, context and purpose of the Act, it is clear the Minister was granted a broad discretion over referrals of matters to the Board. There is no statutory bar to a referral of an applicant for “University” status to the Board where there is also legislation conferring that status.
 Importantly, this referral to the Board occurred prior to the legislation receiving Royal Assent, and ideally, the process would have been completed by this date. The fact that the process continued beyond the date of Royal Assent makes this case unusual. It does not render it unlawful.