COURT FILE NO.: 256/07

DATE: 20080625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

jennings, molloy and swinton jj.

B E T W E E N:

BEST DEAL MOTOR COLLISION CENTRE INC. and GREGORY RABKIN

Appellants

• and -

DIRECTOR OF VEHICLE INSPECTION STANDARDS

Respondent

Ron Shulman, for the Appellants

Murray Forbes, for the Respondent

HEARD at Toronto: June 25, 2008

swinton J.: (Orally)

1The appellants, Best Deal Motors Collision Centre Inc. and Gregory Rabkin, appeal from the decision of the Licence Appeal Tribunal, dated April 25, 2007, in which the Tribunal ordered the Director of Vehicle Inspection Standards to carry out his proposal to revoke the motor vehicle inspection station licence of Best Deal and the registration of Gregory Rabkin as a motor vehicle inspection mechanic.

2The standard of review of the decision of the Tribunal is reasonableness, except with respect to the standard of proof to apply and who bears the burden. On those issues, the Tribunal is required to be correct.

3Although the Tribunal could have articulated more clearly where the burden of proof lay, we are satisfied, looking at the reasons as a whole and particularly in the context of the evidence before it, that there was no error by the Tribunal with respect to who bore the onus.

4It is conceded by the respondent that the onus was on the Director to prove the allegations on a balance of probabilities, with the qualification that the proof must be clear and convincing and based upon cogent evidence.

5The only indication that the Tribunal may have improperly placed the burden on the licensee is one sentence at page 10 of the Reasons, where the Tribunal states: “Moreover, the Applicant was aware of the case he had to prove.” That sentence should not be taken out of context. There was evidence before the Tribunal that a significant number of certificates were dated when Mr. Rabkin was on vacation in Germany, and that Mr. Rabkin admitted to a Ministry inspector that the certificates were not signed by him and that they were signed by a mechanic without authority to do so. At the hearing, he testified that the work had been done before he went away on vacation, specifically on May 19 and 20, 2006, but the certificates were dated in error for the period he was away between May 20 and June 7, 2006. The Tribunal did not accept that evidence, and it found the evidence given by the two Motor Vehicle Inspection Station Inspectors credible.

6In the face of the overwhelming evidence against the appellants, it was not inappropriate to hold that there was an evidentiary onus to produce documents to support the bald assertion that the work was done before Mr. Rabkin went away. There would have been abundant documentation in the form of work orders, invoices, payment receipts and scheduling records to corroborate Mr. Rabkin’s evidence, if it was, in fact, truthful.

7Given that the appellants did not dispute the other infractions, and given the overwhelming evidence with regard to the issuance of certificates while Mr. Rabkin was on vacation, the Tribunal’s decision ordering the Director to carry out the proposal to revoke was a reasonable one.

8The Tribunal has discretion with respect to remedies. The Tribunal quoted the applicable statutory provision which gives it the authority to impose conditions on a licence. In this case, the Tribunal concluded that the appellants’ conduct showed an indifference to statutory obligations and the conduct at times compromised public safety, and, therefore, the licences should be revoked. That is a reasonable result.

9There is no merit to the argument that there was a denial of natural justice or a contravention of the Statutory Powers Procedure Act because of the failure of the Tribunal to record counsel’s final submissions.

10For these reasons, the appeal is dismissed.

JENNINGS J.

COSTS

11Costs as agreed by counsel fixed at $2,000, inclusive, payable to the Director forthwith.

JENNINGS J.

MOLLOY J.

SWINTON J.

Date of Reasons for Judgment: June 25, 2008

Date of Release: July 2, 2008

COURT FILE NO.: 256/07

DATE: 20080625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

jennings, molloy and swinton jj.