COURT FILE NO.: 385/05
DATE: 20070329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, SWINTON and LINHARES de SOUSA JJ.
B E T W E E N:
REGISTRAR, MOTOR VEHICLES DEALERS ACT
Respondent
(Appellant in Appeal)
- and -
BILAL AHMAD KHAN
Applicant
(Respondent in Appeal)
A. Michael Rothe, for the Respondent (Appellant in Appeal)
Bilal Ahmad Khan, in person, Applicant (Respondent in Appeal)
HEARD at Toronto: March 29, 2007
SWINTON J.: (Orally)
[1] The issue on this appeal is whether the Licence Appeal Tribunal misapplied the statutory test for registration under the Motor Vehicle Dealers Act, R.S.O. 1990, c.M.42, and failed to consider and give appropriate weight to relevant and probative evidence.
[2] Pursuant to s.5(1)(b) of the Motor Vehicle Dealers Act, an applicant for registration is entitled to registration except where:
the past conduct of the applicant affords reasonable grounds for the belief that the applicant will not carry on business in accordance with law and with integrity and honesty.
[3] The standard of review on this appeal is correctness, given that the appellant submits that the Tribunal made errors of law (see First Place Fine Car Sales Inc. v. Registrar, Motor Vehicle Dealers Act, a decision of the Divisional Court, unreported, dated March 22, 2007, at para.11).
[4] The Tribunal applied the wrong test, as is shown by the conclusion at page 7 of its reasons:
Therefore the Tribunal is unable to conclude that the applicant’s past conduct when considered in whole is such that he would not carry on business in accordance with law and with integrity and honesty.
The Tribunal’s task was to determine if the past conduct of the respondent afforded “reasonable grounds” for belief that he would not carry on business in accordance with law and with integrity and honesty. See Brenner v. Ontario Registrar of Motor Vehicle Dealers and Salesmen, [1983] O.J. No.1017 (Div. Ct.) at para.9.
[5] The Tribunal also erred in law by failing to consider and give appropriate weight to relevant and probative evidence with respect to the gravity of the criminal conduct, and the extent of the respondent’s misuse of his position, as owner of a gas station, to defraud customers.
[6] Therefore, the appeal is allowed. The decision and order of the Tribunal dated September 20, 2005, are set aside, and the matter is remitted to be heard by a differently constituted Tribunal.
MATLOW J.
[7] I have endorsed on the Appeal Book:
The appeal is allowed and the decision and order of the Tribunal is set aside. This matter is remitted to the Tribunal, differently constituted, for a new hearing.
Oral reasons delivered by Swinton J.
The appellant is entitled to costs, fixed as requested at $1000, payable within 30 days.
MATLOW J.
SWINTON J.
LINHARES de SOUSA J..
Date of Reasons for Judgment: March 29, 2007
Date of Release: April 11, 2007
COURT FILE NO.: 385/05
DATE: 20070329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, SWINTON and LINHARES de SOUSA JJ.
B E T W E E N:
REGISTRAR, MOTOR VEHICLES DEALERS ACT
Respondent
(Appellant in Appeal)
- and -
BILAL AHMAD KHAN
Applicant
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
Swinton J..
Date of Reasons for Judgment: March 29, 2007
Date of Release: April 11, 2007