COURT FILE NO.: 507/01

DATE: 20030211

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lane, Then and J. Wright JJ.

B E T W E E N:

REGISTRAR, MOTOR VEHICLE DEALERS ACT

Appellant

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SHINE CAR SALES AND OMAR HASSAN RAHIM

Respondents

A. Michael Rothe, for the Appellant

Philip Ulrich, for the Respondents

HEARD: February 11, 2003

LANE J.: (Orally)

1This is an appeal from the decision of Vice-Chair David Hunt of the Licence Registration Appeal Tribunal, dated July 27, 2001.

2The Tribunal directed the appellant Registrar not to carry out his proposal to revoke the registration of the respondents Shine Car Sales Inc. and Omar Hassan Rahim, pursuant to the Motor Vehicle Dealers Act, R.S.O. 1990, c.M.42.

3The Registrar appeals seeking an order quashing or setting aside the Tribunal's decision and ordering the Registrar to revoke the respondent's registration as a motor vehicle dealer and sales person. In the alternative, the Registrar asks that the decision be set aside and a new hearing be held before the Tribunal.

BACKGROUND

4The Registrar issued a proposal to revoke the registration of both respondents on February 1, 2001 as a consequence of Shine's conviction in December, 2000 of two counts of tampering with the odometers of vehicles sold by it to members of the public. The Registrar later issued further particulars to support this proposal, namely, that Rahim and Shine had sold two other vehicles without disclosing the true distance travelled and a third vehicle without making disclosure of its status as a salvaged vehicle.

DECISION OF THE TRIBUNAL

5The Tribunal found it to be proven that Rahim had replaced faulty odometers in two vehicles without adjusting the replacement odometers to match the readings on the original odometers. In regard to other claims, the Tribunal preferred the evidence of Mr. Rahim to that of the purchaser as to the sale of the 1989 Honda Civic. The Tribunal found there was no intention to deceive in respect of the sale of the 1992 Ford Aerostar and the Tribunal found that Mr. Rahim had corrected the procedures in question.

6As a result, the Tribunal found that the respondents were able to remain registrants but placed them upon certain conditions. Two of these conditions relate to informing prospective purchasers as to odometer readings and a third is in relation to informing purchasers as to the history of the vehicle as an insurance write-off or a salvage vehicle or a theft recovery vehicle.

THE APPEAL

7This Court has the authority to hear this appeal pursuant to s.11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c.12, Sched. G. Section 11 provides:

"A party to a proceeding before the Tribunal relating to a matter under any of the following acts, may appeal from its decision or order to the Divisional Court in accordance with the Rules of Court and one of the acts listed is the Motor Vehicle Dealers Act."

8There is no privative clause protecting decisions of the Tribunal and we are therefore free to substitute our opinion for that of the Tribunal should the case require it.

WHAT IS THE TEST THAT THE TRIBUNAL SHOULD HAVE APPLIED TO THE FACTS WHICH IT FOUND?

9In our view, the test in the Divisional Court case of Brenner v. Ontario (Registrar of Motor Vehicle Dealers and Salesmen) [1983] O.J. No. 1017, remains the proper test for this purpose. Brenner must be read carefully. It does not establish a rule that the Registrar must be shown to be wrong in having concluded that there was reason to doubt that the registrant would carry on business appropriately. The Tribunal approaches the matter uninhibited in any way by the Registrar's view. The test as set out in par. 12 of Brenner is as follows:

"The proper question at the rehearing remains, however, whether the past conduct of the applicant affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty. Unless the Tribunal can find that it does not, the Tribunal should not order the Registrar to refrain from carrying out his proposal."

10In our view, properly read, this Court in the subsequent case of Ontario (Registrar of Real Estate and Business Brokers) v. Faccenda [1994] O.J. No. 954 did not import into the Brenner test a further test of error on the part of the Registrar. That case reiterated the Brenner test and did not add any element of deference to the Registrar. It should be clearly understood that the Tribunal owes no deference to the Registrar's opinion. The Registrar is the investigator. The Registrar is not a trier of fact whose opinion is based upon a hearing and so entitled to deference.

11Turning to this present case, the Tribunal considered the evidence before it with care. It reached conclusions as to credibility which is a matter peculiarly within the competence of one who sees and hears the witnesses. It preferred the evidence of Mr. Rahim to that of others and found the evidence of Mr. Ferrante to be unbelievable in certain important respects. It found that despite his dated assault conviction and his non-industry theft conviction that Mr. Rahim was nevertheless a registrable person.

12It dealt with the two odometer tampering offences. These were troubling and they trouble us. But it was open to the Tribunal to regard these matters as not determinative in the circumstances of the issue of registrability. We cannot say, in all of the circumstances of this case that the Tribunal was wrong to do so. Overall, there is evidence in this record to support each finding of the Tribunal and we ought not therefore to interfere with those findings.

13There was a specific issue raised before us as to the use made by the Tribunal of certain bills of sale subsequent to the odometer tampering offences which were referred to by Mr. Rahim in the witness box to refresh his memory. These documents were not marked as exhibits but the Tribunal referred to them as "substantiating" the oral evidence given by Mr. Rahim. In the box, Mr. Rahim read from these bills of sale the notations he had made on them. We see no error in the Tribunal referring to the bills in its reasons; the oral evidence was clearly admissible. In our view there is no substantial error in the findings of the Tribunal and the appeal is dismissed.

14I have endorsed the appeal book, "This appeal is dismissed for reasons dictated, costs of the respondent fixed at $3,500."

LANE J.

THEN J.

J. WRIGHT J.

Date of Reasons for Judgment: February 11, 2003

Date of Release: February 19, 2003

COURT FILE NO.: 507/01

DATE: 20030211

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lane, Then and J. Wright JJ.

B E T W E E N:

REGISTRAR, MOTOR VEHICLE DEALERS ACT

Appellant

• and -