Ji v. Private Career Training Institutions Agency Date:, 2011 BCPC 61

Citation: Ji v. Private Career Training Institutions Agency Date: 20110314 2011 BCPC 0061 File No: 1030234 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHEN JI CLAIMANT AND: PRIVATE CAREER TRAINING INSTITUTIONS AGENCY DEFENDANT REASONS FOR JUDGMENT OF HER WORSHIP B. CORNISH Appearing on their own behalf: Shen Ji Counsel for the Defendant: Sarah Mathews Place of Hearing: Vancouver, B.C. Date of Hearing: January 26, 2011 Date of Judgment: March 14, 2011 [ 1 ] The issue in this case is whether the Complainant, Mr.

Shen Ji, has a valid cause of action against the Defendant, the Private Career Training Institutions Agency of BC ("the Agency"). [ 2 ] The Agency came into force on November 22, 2004 pursuant to the Private Career Training Institutions Act S.B.C. 2003 c.79 ("PCTIA") and is the successor to the Private Post Secondary Education Commission (the "Commission"). The predecessor statute was the Private Post-Secondary Education Act RSBC 1996 c. 375 ("PPSEA"). [ 3 ] In order to understand the positions of both parties it is necessary to set out the facts in some detail. Facts [ 4 ] In or about July, 2003 Mr.

Ji paid the sum of $3,000.00 to Guang Qi, who, at that time, was the principal of an institution known as the Canadian Film Academy ("CFA"). These funds were apparently included in funds paid by Mr. Qi to the Commission as security in accordance with the registration requirements of the PPSEA .

[ 5 ] In December, 2003 the CFA ceased operations. [ 6 ] On March 15, 2004 Mr. Qi advised the Commission that the CFA was no longer in operation and had no students currently registered. [ 7 ] On April 28, 2004 Mr. Ji completed a student complaint form which, he concedes, incorrectly stated that his program at CFA ran from July 20 to September 1, 2003. [ 8 ] On May 21, 2004 the Commission responded to the complaint form stating that since the reported end date of September 1, preceded the December closure he was not eligible for a fee refund.

The correspondence noted, however, that if he could provide some documentary proof that he was in attendance and in good standing at the date of closure, his claim would be reconsidered. [ 9 ] On May 30, 2004 Mr. Ji wrote to the Commission to advise that all of the students who were registered in his course at CFA volunteered at the Grace Seniors Home from the beginning of September to the end of December, 2003. He provided the contact information of the Home's administrator. [ 10 ] The fact that Mr.

Ji was, as part of his course, volunteering at the Grace Seniors Home, is also referenced in a document dated February 26, 2004 addressed "To whom it may concern" and detailing the activities and hours worked by Mr. Ji from September to December 2003. It is not clear on the evidence if and when this document was provided to the Commission. [ 11 ] On June 9, 2004 the Commission acknowledged receipt of the May 30th letter but responded that in order to be eligible for a refund he had to be "in class at the institution at the time of closure".

Since this was not the case, he was not eligible for a refund. [ 12 ] On June 17, 2004 Mr. Stephen Lee, the President of Grace Seniors Home wrote to the Commission as follows: "All students of Avid Express DV 3.5 course of Canadian Film Academy did their practice lessons at the media department of Grace Seniors Home as volunteer staffs since September 2003. Sam Shen Ji was one of the students who attended this lessons from the start of the lessons to January 1, 2004." [ 13 ] The Commission did not respond to the correspondence from Mr. Lee or advise Mr.

Ji that it had considered the letter as part of his refund application. [ 14 ] On September 29, 2004 the Commission refunded the security monies it held (which were in excess of $16,000.00) to Mr. Qi. It appears that Mr. Ji did not become aware of this transfer of funds until sometime later. [ 15 ] On October 7, 2004 Mr. Qi cashed the security cheques. [ 16 ] On June 13, 2005 Mr. Ji obtained a default judgment against Mr. Qi in the amount of $3,228.96.

The Commission (which by that time was operating as the Agency) was not named as a Defendant in that Action. [ 17 ] On September 9, 2005 the Agency sent a letter, addressed to "whom it may concern" referencing its prior letter of May 21, 2004 and adding the following: "As we have not received any new information, our decision with respect to Mr. Shen's claim remains the same." [ 18 ] The September 9, 2005 letter appears to have been the source of much of the miscommunication and confusion which has fuelled Mr. Ji's continued actions on this issue.

In fact, the Agency did receive an additional letter from Grace Seniors Home (the June 17, 2004 letter referenced above) after it sent the May 21st letter but as noted it did not acknowledge receipt of the June 17, 2004 letter from Mr. Lee or otherwise advise Mr. Ji that its position remained the same notwithstanding the letter from Mr. Lee. [ 19 ] On October 13, 2005 Mr. Ji made an Application for a garnishing order after judgment against the Agency.

That Application was heard and dismissed by Judge Tweedale on December 23, 2005. [ 20 ] The December 23, 2005 date is significant because it appears that it was only then that Mr. Ji became aware, not only that the funds had been sent to Mr. Qi but also the exact date that this transfer occurred (i.e. on September 29, 2004). On that date Mr. Ji also learned that his claim with the Commission/Agency had been closed - although he was still unclear as to the exact date of that closure. It is evident not only from his Trial Statement (para 15) but from all of the documents that Mr.

Ji initially suspected that the Commission staff had intentionally not told him that his claim was closed to avoid him holding up the transfer of funds to Mr. Qi .The basis of this suspicion is not clear. [ 21 ] In his Trial Statement Mr. Ji notes that after the December 23, 2005 Application he sought the assistance of both the Ombudsman and his MLA. It is not entirely clear what happened over the next few years but on June 26, 2008, Mr. Ji's MLA, Shane Simpson wrote to the Assistant Deputy Minister of Education, asking for, amongst other things why the security funds were released to Mr. Qi.

It is not known what, if anything occurred as a result of this inquiry. [ 22 ] On March 3, 2009 Mr. Ji made an "FOI" request which included a specific request for the date that the June 17, 2004 letter from Mr. Lee was received by the Agency. On May 1, 2009 the Agency responded to that request, advising that there was no separate note made of the receipt date of the letter. [ 23 ] On May 13, 2009 a representative of the Agency responded to Mr.

Ji’s inquiries regarding its receipt of the June 17, 2004 letter as follows: "...There was no requirement for PCTIA to respond to your submitted letter, however, your submitted letter was considered during PCTIA's evaluation of your claim. With respect to that consideration, PCTIA issued its decision some time ago and at that time considered the matter closed.

I recommend that you please discontinue contacting PCTIA on this issue because I have followed up on this for you and determined that PCTIA considered your submitted letter. They also had another look at the file and still stand by the original decision..." [ 24 ] It appears that Mr. Ji again wrote to the Agency on October 28, 2009 and on December 8, 2009 the Agency responded and confirmed that Mr. Ji's complaint file was closed on June 9, 2004. [ 25 ] The concluding words of that correspondence provide: "In

summary, since you were not in attendance at the Canadian Film academy when it closed for business in March, 2004, you were found to be ineligible for a tuition refund. You were so advised in a letter from PPSEC on June 9, 2004 and your complaint file was closed as at that date." [ 26 ] The Agency's letter of December 8, 2009, however, did little to clear up Mr.

Ji's concerns because it stated that the Commission had closed his file before receipt of the June 17, 2004 letter and because it suggested that the end date when he was required to be in attendance at CFA was March, 2004 and not December 31, 2003 as referenced in previous letters (including the letter of September 9, 2005). The Action [ 27 ] This Action was commenced on May 25, 2010.

The Notice of Claim provides: "In December 8, 2009 letter PCTIA advised the claimant that the claim was closed at the same date of June 9, 2004 but there was not words in June 9, 2004 letter clearly indicating the closure so that left a reasonable expectation to the claimant that the claim was still valid while PCTIA would hold the money held in trust of Guang Qi.

This reasonable expectation caused the claimant unable to apply for a garnishing order before judgment to PCTIA before suing Guang Qi so that the claimant failed to collect money after won." [ 28 ] The relief sought is stated to be a garnishing order after judgment and related interest. The November 24, 2010 Hearing [ 29 ] This case originally came before me on November 24, 2010. Since the relief claimed in the Notice of Claim was a garnishing order against the Agency and since Judge Tweedale had already heard and dismissed an identical claim, it was difficult to understand the exact basis for the current claim.

After hearing from the parties and reviewing the documents, however, it became apparent that while the current Action was closely intertwined with the prior Action against Mr. Qi (and the associated garnishing order Application) the case was considerably more factually involved and that the relief sought related to the overall issue of the Agency's actions in relation to his claim for a refund rather than a simple garnishing order. [ 30 ] In addition, Mr.

Ji noted that the Agency had not delivered its Trial Statement within the time referenced in the Rules and as such that he was not able to properly respond to the Defendant’s submissions. In the end result, I adjourned the Trial and ordered that the parties could file amended Trial Statements prior to the next hearing. The January 27, 2011 Hearing [ 31 ] The case came on again on January 27, 2011. Both parties filed amended Trial Statements. The facts recited above are taken from both the original and amended Trial Statements. [ 32 ] At both hearings Mr.

Ji advised that he was unfamiliar with the law and that English was his second language. As a result I inquired as to whether a translator was required but was advised that he was content to have his son (who accompanied him at both hearings) translate if necessary. The Relief Sought By the Claimant [ 33 ] As noted, from Mr. Ji's Trial Statement and his statements at the trial itself, the real basis of his claim appears to be an action for compensation in relation to what he believes was unfair treatment on the part of the Agency.

Specifically he referred to the following: • that the Agency had returned the funds to Mr. Qi when they knew he was seeking a refund of his tuition fees; • that he was not advised that the Agency had closed his file prior to the funds being sent to Mr. Qi; and • that the Agency stated he had not provided additional information in support of his claim (in the September 9, 2005 letter) when, in fact he had (the June 17, 2004 letter from Grace Seniors Home). [ 34 ] Mr. Ji also asked that the Agency provide him with information as to Mr. Qi's whereabouts if they were able to do so.

The Agency's Position [ 35 ] For the Agency's part, it took the position that Mr. Ji's claim failed to disclose a valid cause of action for the following reasons: • the Agency's authority to refund tuition fees is derived from s.13 of the "General Directives" issued under the Private Post Secondary Education Act . This authority is discretionary and as such, any "appeal" of that decision is properly brought by way of judicial review and not in the form of the within Action; • there is no valid cause of action for breach of statutory duty;

• if there is a valid claim in negligence it is statute barred; • if there is a valid cause of action it is barred on the basis of res judicata or abuse of process. [36] At the conclusion of the January 27 hearing I inquired as to whether the parties had had any settlement discussions and wasadvised they had not. I therefore ordered that the matter be adjourned until February 16, 2011 to allow the parties to have suchdiscussions if either was inclined to do so.

I further ordered that, if a settlement was concluded, counsel for the Agency inform theRegistry of this fact prior to February 16th and that if no such notification was received I would provide written Reasons for Judgment. These are those Reasons. Discussion and Decision [37] To the extent that the Notice of Claim seeks a garnishing order after judgment I clearly have no jurisdiction to make such anorder since that issue was heard and decided by Judge Tweedale on December 23, 2005. [38] Notwithstanding the formal claim for relief, as noted, the true basis of this claim is for compensation for what Mr.

Ji believeswas unfair conduct on the part of the Agency in various aspects of its handling of his claim for a tuition refund. [39] While it obviously would have been preferable, from Mr. Ji's perspective, for the Agency, to have specifically acknowledgedreceipt of the June 17, 2004 letter and advised him that it had both closed his claim and was going to send the funds to Mr. Qi, prior todoing so, the issue in this case is whether those alleged omissions form the basis of a valid cause of action. [40] Fundamental to assessing the validity of Mr.

Ji’s claim is the recognition that the Agency (and the Commission before it) is astatutory body with only those powers conferred by its governing legislation. In that regard, the Commission’s decision not to issue arefund was made pursuant to s. 13 of the General Directives to the Private Post Secondary Education Act, which provided: “13. Where an institution closes, voluntarily or otherwise, before the program of study is delivered, the Executive Director may order arefund of all or part of paid student fees.” [41] In my view, even if Mr.

Ji’s claims are given the most liberal construction, it is clear that they all, in one form or another, relateto the correctness of the Commission’s refund decision taken pursuant to s.13 and to its related procedural conduct. Counsel for theDefendant submits that such claims do not disclose a valid cause of action in negligence or otherwise. After reviewing the case lawprovided by the Defendant, I agree with that submission and conclude that the claim must be dismissed on the following bases: 1.

A claim challenging the correctness of the discretionary decision made pursuant to s.13 or of alleged failures in procedural fairnessrelated to that decision, ought properly to be advanced by way of judicial review and does not disclose a valid cause of action in civilproceedings. Cimaco International Sales Inc. v. British Columbia, [2010] B.C.J. No. 1311 (C.A.); 2. There is no valid cause of action for breach of statutory duty. Holland v. Saskatchewan, 2008 SCC 42 , [2008] S.C.J. No.43; 3. In any event, a cause of action in negligence would be statute barred in this case. Mr.

Ji was aware both that the funds had beentransferred and that the Commission had closed his claim when he appeared at the December 23, 2005 Application and this claim wascommenced on May 25, 2010. [42] For the benefit of both parties, I add one further comment. At the November 24 hearing, I initially inquired whether the Agencyhad been joined as a party to the original 2005 Action and was advised by Mr. Ji that for a variety of reasons he understood he could notdo so. This inquiry stemmed, in large part, from my initial difficulties in understanding the exact nature of the claims advanced.

Havingnow had the benefit of reviewing both the amended Trial Statements and related case law I note that to the extent a claim in 2005 againstthe Agency would have comprised similar allegations as advanced in this claim, it too, would presumably be subject to the legalobjections referred in paragraphs 1 and 2 above.

Summary [43] To summarize, while I have some sympathy for Mr. Ji in what appears to have been a long and frustrating attempt to recover histuition fees, I am nevertheless bound by the law to conclude that his claim does not disclose a valid cause of action and must bedismissed. ___________________ Barbara Cornish Adjudicator