COURT FILE NO.: 838/01
DATE: 20031126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, FERRIER AND PITT JJ.
B E T W E E N:
REGISTRAR, MOTOR VEHICLE DEALERS ACT
Appellant
- and -
LIVIO FIACCO
Respondent
Counsel: Larry A. Banack, for the Appellant In Person
HEARD: November 26, 2003
DUNNET J.: (Orally)
[1] We are of the view that this appeal must be allowed.
[2] Although the Tribunal correctly stated the test for refusing to direct the Registrar to carry out his proposal, the Tribunal then erred in law in three respects:
(i) it misdirected itself and failed to apply the law concerning the obligation of an officer and director of a corporation when it assessed the conduct of the respondent including his duty as a director to take steps to have the corporation meet its obligations under s. 115(1) of the Ontario Business Corporations Act, R.S.O. 1990 c.B.16;
(ii) a careful reading of the decision leads us to conclude that there are no sustainable reasons for its conclusion that the Registrar was in error. The Tribunal appears to have held that personal liability of the respondent for the claims had to be established. It also appears to have been of the view that there were no significant steps that the respondent ought to have taken as an officer or director to have the corporation meet its obligations in connection with the claims; and
(iii) the Tribunal omitted consideration of relevant evidence that the respondent was a principle of the business and that he "pretty much ran the business with Claudio".
[3] Further, the Tribunal erred in its finding that there was no evidence the respondent was aware that the warranty monies had not been forwarded. It also misconstrued the significance of the respondent's purported ignorance of his statutory responsibilities.
[4] Therefore, the appeal is granted. The Registrar is directed to carry out his proposal to revoke the registration.
[5] In the circumstances of this case we are all of the view that there should be no order as to costs.
DUNNET J.
FERRIER J.
PITT J.
Date of Reasons for Judgment: November 26, 2003
Date of Release: December 1, 2003
COURT FILE NO.: 838/01
DATE: 20031126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DUNNET, FERRIER AND PITT JJ.
B E T W E E N:
REGISTRAR, MOTOR VEHICLE DEALERS ACT
Appellant
- and -
LIVIO FIACCO
Respondent
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: November 26, 2003
Date of Release: December 1, 2003