COURT FILE NO.: 119/03

DATE: 20030512

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o'driscoll, lane and kozak jj.

B E T W E E N:

T & R AUTO SERVICE CENTRE INC. and NASEEM JAMIL

Appellants

• and -

THE DIRECTOR OF VEHICLE INSPECTION STANDARDS

Respondent

J. Sebastian Winny, for the Appellants

John Petrosoniak, for the Respondent

HEARD: May 12, 2003

LANE J.: (Orally)

1This is an appeal from a decision dated November 6, 2002 of John Ort, a Member of the Licence Appeal Tribunal.

2The Tribunal directed the respondent Director to carry out his proposal to revoke the Motor Vehicle Inspection Station licence of the appellant T & R Auto Service Station Inc., and the Motor Vehicle Inspection Mechanic's licence of the appellant Naseem Jamil.

3The appellants appeal seeking to set aside the order. In its place they ask for one directing the Director to refrain from carrying out these proposals, or in the alternative, for a new hearing before a different Member.

4T & R has held its licence since September 12, 1997. Prior to that time it operated as a partnership and had been licenced since December 3, 1993. Mr. Jamil has been personally licenced as a Motor Vehicle Inspections Station Mechanic since December 26, 1999. The director gave notice in February, 2002 of his intention to revoke both licences alleging that false statements had been made in numerous safety standards certificates and that inspections authorized by the licence and registration were incompetently performed or not performed in accordance with the Act and the Regulations.

5The present appellants requested a hearing and the Tribunal made findings of fact that numerous safety standard certificates were issued for vehicles with defects, that Jamil had signed these certificates and that he knew or ought to have known that the vehicles did not comply.

6Our jurisdiction on appeal is pursuant to s.96(12) of the Highway Traffic Act:

"(12) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the Tribunal and may exercise all powers of the Tribunal to direct the Director to take any action which the Tribunal may direct him or her to take and as the court considers proper and for such purposes the court may substitute its opinion for that of the Director or of the Tribunal, or the court may refer the matter back to the Tribunal for rehearing, in whole or in part, in accordance with the directions that the court considers proper. R.S.O. 1990, c.H.8, s.96(12); 1999, c.12, Sched. G, s.24(18)."

7This is a very broad review power. As it is alleged that the Tribunal deferred too much to the Director's opinion, we review this matter without deference to the opinion of the Director and placing the burden of proof upon him to establish the offences relied upon. We do not agree that the Tribunal in fact required the registrant to prove the Director was in error as alleged by counsel, rather, the registrant was faced with a burden imposed by the considerable weight of the evidence against him.

8In our view, the evidence accepted by the Tribunal, including its acceptance of the convictions of the registrant, both as station licensee and as mechanic, provide the necessary clear and cogent proof required as a basis for approval of the Director's proposed action. The Member's Reasons have been criticized but they contain the essential elements: a review of the

important evidence; findings of fact; and a conclusion rooted in the evidence. Therefore, we dismiss the appeal and direct the Director to proceed to carry out his proposal.

O'DRISCOLL J.

LANE J.

KOZAK J.

O'DRISCOLL J.

9I have endorsed the back of the appeal book as follows: "This appeal is dismissed for the oral reasons of even date given for the Court by Lane J. Counsel agree on the quantum of costs at $1,000. That amount shall be paid forthwith by the appellants to the respondent."

O'DRISCOLL J.

Date of Reasons for Judgment: May 12, 2003

Date of Release: May 15, 2003

COURT FILE NO.: 119/03

DATE: 20030512

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o'driscoll, lane and kozak jj.