Abbott v. Ontario (Registrar, Motor Vehicle Dealers Act Licence Appeal Tribunal), 2006 CanLII 36491 (ON SCDC)

COURT FILE NO.: DC-05-078124-00

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, CHAPNIK and DONOHUE, JJ.

B E T W E E N: )

ANDY ABBOTT ) In Person Applicant ) Respondent on the Appeal )

• AND - )

REGISTRAR, MOTOR VEHICLE ) DEALERS ACT ) LICENCE APPEAL TRIBUNAL ) A. Michael Rothe ) for the Appellant Appellant on the Appeal )

) Heard at Newmarket: ) September 14, 2006

ENDORSEMENT

1This Court has jurisdiction to hear this appeal pursuant to s.11 of the Licence Appeal Tribunal Act, 1999, S.O., c. 12, Schedule D, which indicates:

"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 the court."

One of the items noted is the Motor Vehicle Dealers Act.

2The matter has some history or background. The Appellant has a long history in the auto sales business. He previously had his own auto dealership, which was shut down in 2002. At the time the company owed money in unremitted sales tax. He was registered as a salesperson in 2002. One of the conditions of the settlement of the proceedings at that time, which reinstated his licence as a salesperson, was that he was to make an effort to pay the arrears of sales tax, which had been made by the collapse of his company.

3He went through a period of unemployment after obtaining the return of his licence and his registration as a salesperson lapsed. In the Spring of 2005 he obtained employment at an auto dealership in Ajax and then re-applied for registration as a salesperson.

4In July of 2005, the Registrar issued a Notice of Proposal to refuse the Appellant's registration. The Appellant appealed this proposal to the Licence Appeal Tribunal who made the Order that is the subject of this appeal.

5The Tribunal directed the Respondent to carry out his proposal refusing the registration as a motor vehicle salesperson. The Tribunal's findings of fact are set out on page 11 of the decision:

-- Section 5(1) of the Motor Vehicle Dealers Act indicates:

"An Applicant is entitled to registration or renewal of registration by the Registrar except where,

(b) the past conduct of the Applicant affords reasonable grounds for belief that the Applicant will not carry on business in accordance with law and with integrity and honesty."

6There are two findings in summary upon which the Tribunal based its decision. They found that he owed considerable retail sales tax to the Government, which were trust funds, and that the Appellant's handling of them indicated not only a lack of integrity and honesty, but a blatant disregard of and compliance with the law [sic]".

The Appellant also failed to disclose a pending charge of fraud, when he applied for registration, as required by the form. They found that he was dishonest in not disclosing the substantial fraud charge and they dealt with the issue of the evidence which he gave at the hearing.

7The standard of review in matters such as this may be summarized briefly, that under this Act there is a right of appeal. There is no privative clause protecting the decisions of the Tribunal.

8It has been held, in cases such as this, where the Court is asked to review whether a Board is right in its interpretation of a statutory provision, the standard of review should be correctness. (Feingold v Discipline Committee of College of Optometrists of Ontario (1981) 1981 1898 (ON SC), 123 D.L.R. (3d) 667).

[9] In the particular context of appeals from decisions of the Ontario Licence Appeal Tribunal this Court has held it is not for us to put ourselves in the shoes of the Tribunal. As a reviewing Court, it is for us to determine whether the Tribunal identified and applied the proper test, and whether it applied it correctly. We cannot interfere with the Tribunal's exercise of its discretion unless we are persuaded that it was clearly wrong. (Ontario (Motor Vehicle Dealers Act, Registrar) v Shahidi (c.o.b. GTA Auto) [2003] O.J. No. 778. Put simply, findings of fact and the exercise of the Tribunal's discretion will not be disturbed unless clearly wrong.

10The issues raised by the Appellant, on his own behalf, are such that initially he indicated that the Vice-Chair misapprehended the evidence. The issue turns around a comment made about the charge being fresh in the Appellant's mind, there only being a passage of nine days. We are unable to ascertain the basis for that comment. It may well have been a typographical error.

11The failure, however, does not throw into question the main portion of the Tribunal's decision. It assessed the evidence of the Appellant when he testified before them. Unfortunately for him, they did not accept his evidence on the question. They also seemed to have taken into consideration that this charge was formulated or laid shortly or near the time of the original reinstatement of his licence. It does not affect, in our view, their substantial findings in relation to the evidence as a whole.

12There was evidence on which they could reach the conclusion that they did. There was, as well, evidence that they could find that the fraud charge in question was not disclosed by the Appellant on his original application. There was a conflict of evidence between the Appellant and the position taken by the employees. The Tribunal was entitled to reach evidentiary conclusions on their assessment of the evidence.

13There does not seem, in our view, to be any legal error which arises from the dealings in regard to the retail sales tax issue. There is no issue of res judicata which arises as a result of the comments about the balance owing on the retail sales tax issue. We do not view the comments of the Tribunal as relitigating, if you like, the original issue. The comments are purely and simply directed towards the fact that he obtained his licence again on an undertaking to make attempts to pay the retail sales tax trust funds and nothing had been paid. We see nothing wrong with the Tribunal acting upon such evidence if it was available to it.

14As far as mitigating factors, it appears to us that the Tribunal took into consideration mitigating factors at page 16 of their decision.

There was an issue, which arose as well, as to whether counsel split its case before the Tribunal, breaching the long-standing rule in Brown and Dunn. If that was done, it did not breach any rule of natural justice. Indeed, upon our view of the evidence, it may well be said that there was no breach of the rule in Brown and Dunn in any case. But even if there had been such a breach, the Tribunal is not a Court and is entitled to rely upon its own procedures in the fashion that it wishes to deal with matters of evidence before it.

15In our view, while the Appellant certainly presented his case before us with substantial ability, we unfortunately are unable to interfere with the decision of the Tribunal, and his appeal must be dismissed.

16I would comment that auto sales are not the only type of occupation where sales ability is valued as an asset, and there should be other positions available for someone who can present their own appeal with such ability.

17The issue of costs in matters like this is always one with which we grapple. In this case the Appellant appeared for himself. There does not appear to be any delay or extra problems attributable to him as a result of his appeal. The parties opposing him are, if you like, institutional Respondents.

18We do not wish to inhibit people from bringing cases such as this to the Courts to review issues of importance, at least to the Appellant, and those people who have had their registration denied. In all the circumstances there will be no costs.