CITATION: Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492

DIVISIONAL COURT FILE NO.: 459/11

DATE: 20120405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Hennessy and Harvison Young JJ.

BETWEEN:

ZIAD MANUEL

Appellant

– and –

REGISTRAR, MOTOR VEHICLE DEALERS ACT, 2002

Respondent

Justin M. Jakubiak, Meagan Swan, for the Appellant

Christopher Cooper, for the Respondent

HEARD at Toronto: March 1, 2012

HARVISON YOUNG J.:

Introduction

[1] The Appellant appeals a decision of the License Appeal Tribunal (the “LAT”) released September 23, 2011, which denied him an extension of time to file for a hearing regarding the Registrar’s Notice of Proposal to Revoke Registration (“Notice of Proposal”) under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sched. B (the “Act”).

[2] The Registrar had issued a Notice of Proposal to revoke the Appellant’s licence after the Appellant failed to comply with an order from the Ontario Motor Vehicle Industry Council (“OMVIC”) Discipline Committee (the “Discipline Committee”). The Registrar ultimately revoked the Appellant’s licence.

[3] The background to this Notice of Proposal may be briefly stated. The Appellant was a salesperson and “person in charge” of 5 Star Dealers Inc. (“5 Star”), a car dealership which has operated since approximately 2004. Following a discipline hearing that was held in June 2010, 5 Star was found to have committed breaches of advertising requirements in the OMVIC’s Code of Ethics and Standards of Business Practice. The Appellant attended the hearing on behalf of 5 Star.

[4] 5 Star was ordered to pay a fine and $10,000 in costs within 30 days of the order, and to submit any future advertising to a representative of the Registrar for pre-approval. In addition, 5 Star was ordered to provide evidence by October 2010 that its management staff, including the Appellant, had successfully completed OMVIC’s Automotive Certification Course with Georgian College. 5 Star appealed the Discipline Panel’s decision. The appeal was resolved on September 29, 2010, without a hearing. According to the resolution, 5 Star was provided with 12 months to pay the fine, and the costs requirement was removed. December 29, 2010 was established as the deadline for management staff to complete the course.

[5] It is common ground that the Appellant has not completed this course. On August 5, 2011, the Registrar issued a Notice of Proposal to revoke the registrations of the Appellant, another individual and 5 Star. With respect to the Appellant, the Notice states that despite repeated warnings, he had failed to complete the course required by the Discipline Committee.

[6] The Appellant now asserts that he has left 5 Star as a result of the leadership and the manner in which the dealer principal continued to operate it following the Discipline Committee proceedings. It is clear from the materials before us that the Registrar asserts that 5 Star has continued to fail to comply with advertising standards.

[7] Pursuant to ss. 9 (2) and (4) of the Act, the Registrar may carry out a proposal if an applicant or registrant does not request a hearing within 15 days after being served with a Notice of Proposal. The Notice of Proposal itself sets out the 15 day period as well as the requirements for requesting a hearing.

[8] There is no dispute that the Notice of Proposal was properly served on the Appellant on August 8, 2011, but he maintains in an affidavit that he had not actually seen it until about August 18, 2011. The Final Notice revoking the Appellant’s registration was issued on August 24, 2011, and he received it on August 26, 2011. It was only on that date that he contacted the OMVIC staff. He told the staff member that he had not seen the Notice of Proposal until “about five days” before that date, at which point he would have had approximately one week to file his appeal. The Appellant sought to file a written request for a hearing on August 26, 2011, which, he was advised, was 3 days out of time. He then sought an extension of the time period for requesting a hearing, which the LAT refused to grant.

[9] In its decision refusing the request for an extension, the LAT noted that the Appellant had approximately one week remaining within the appeal period from the date that he acknowledged seeing the Notice of Proposal to request a hearing, but had not done so. It also commented that the Notice of Proposal “clearly outlines the process necessary for an appeal and states the 15 day deadline”, noting that he need only have mailed or faxed the Notice of Proposal to file the appeal. The LAT concluded that the Appellant did not have a firm intention to appeal the proposal, and there was no merit to the appeal. Moreover, the justice of the case did not warrant an extension.

[10] The Appellant submits that the LAT committed a number of reviewable errors in its decision to refuse the extension, and particularly in its application of the test articulated in Frey v. Macdonald, [1989] O.J. No. 236 (C.A.), which sets out the factors to be considered in relation to a request for an extension of time.

[11] The Appellant, in essence, argues that his licence was revoked simply for missing a deadline by 3 days and that he was effectively deprived of any opportunity to challenge the grounds relied upon by the Registrar in the Notice of Proposal for the revocation of his registration.

Standard of Review

[12] The parties agree that the standard of review is reasonableness. See e.g. Goselin v. Registrar, Motor Vehicle Dealers Act, 2002, [2009] O.J. No. 1433 (Div. Ct.), at para. 2.

Law and Analysis

[13] The Appellant argues that the Tribunal incorrectly and unreasonably applied the test governing granting of extensions for time to the evidence, and “incorrectly weighed” the evidence on this issue.

[14] The LAT cited the relevant sections of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, and Frey v. MacDonald, stating that it would consider the following factors as constituting “reasonable grounds” for assessing this request for an extension of time in which to file an appeal:

1. The existence of a bona fide intention to appeal;

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

[15] The LAT also went on to state that,

[a]ll four aspects of the test need to be considered with no one aspect necessarily having ascendance. Further, the premise is that an extension should not be granted if the Appellant is not reasonably able to explain why he failed to observe the limitation unless “justice of the case” requires otherwise. [Reasons, at p. 4.]

[16] The Appellant does not take issue with the test as articulated above. However, as will be discussed, he does take issue with the LAT’s application of the test to the circumstances.

[17] As the Court of Appeal held in Frey v. Macdonald, page 2, the general rule is that time for an appeal is not extended unless the appellant has shown that these factors apply to support an extension. The Appellant bears the onus of establishing the necessary factual foundation.

Intention to Appeal

[18] The Appellant argues that the Tribunal “failed to properly appreciate the Appellant’s intention to appeal”, by incorrectly emphasizing the fact that the Appellant needed only to mail or fax his appeal. The Appellants submits that he took some steps that should have led the LAT to conclude that he did intend to appeal.

[19] The LAT reviewed the evidence relating to this issue. It considered the Appellant’s argument that he was not familiar with the process, noting that the Notice of Proposal set out clearly the requirements for commencing an appeal. Mr. Jakubiak for the Appellant argued that the fact that Mr. Manuel contacted the OMVIC staff after he received the Final Notice should have been treated by the LAT as evidence of an intention to appeal.

[20] The LAT had the evidence of this communication before it. It referred to the coordinator’s notes, which detailed this communication. It also noted that, on the Appellant’s own evidence, he had approximately one week to file his appeal from the time he discovered the Notice of Proposal, but he did not do so. The LAT reasonably concluded that the Appellant had not shown an intention to appeal within the appeal period.

[21] The LAT stated that,

[g]iven that the Applicant needed only to mail or fax the Notice of Proposal his delay in filing his appeal although he had at least a week to do so is found to be indicative of inactivity on his part and does not support his having maintained a “firm intention from the beginning” to appeal the Proposal. [Reasons, at p. 5.]

[22] In essence, the Appellant takes issue with the manner in which the LAT weighed the evidence on this issue. In our view, it was open to the LAT, on the evidence, to conclude that he had not shown an intention to file an appeal.

[23] We note that the LAT, in listing the factors to be considered, described this element as the “existence of a bona fide intention to appeal”. In our view, this is the correct framing of the test to be applied in these circumstances. However, it concluded that the evidence did not support “his having maintained a ‘firm intention from the beginning’ to appeal the Proposal” (Reasons, at p. 5). In our view, there is no reason to require that a person in the Appellant’s position demonstrate an intention to appeal “from the outset”. It is sufficient if an intention to appeal is demonstrated during the appeal period.

[24] That said, in our view, this difference in the test to be applied made no difference in the LAT’s decision not to extend the time in this case, because the LAT concluded on the evidence that the Appellant did not show an intention to appeal at any time during the appeal period.

[25] Accordingly, we conclude that the LAT reasonably found that the Appellant did not meet the first factor to be assessed.

The Length of the Delay

[26] The Appellant also submits that the LAT erred in its consideration of the length of the delay, which is another factor to be considered pursuant to Frey v. Macdonald. The LAT acknowledges that the length of delay in filing an appeal was not “grossly excessive”, but considered the 15 day appeal period to be reasonable.

[27] In effect, the Appellant submits that this factor alone should have been sufficient to require the LAT to grant the extension of time. We do not agree. All four aspects of the test are to be considered and no one element necessarily is determinative. Moreover, the logical consequence of this submission would be that a relatively short delay would always result in an extension, undermining the very purpose of appeal periods.

[28] The LAT found that the Appellant had not offered any explanation for the delay. Although his affidavit in support of his request for an extension stated that it was always his intention to appeal the Registrar’s Proposal, the Appellant filed little evidence that offered an explanation for his delay. As the LAT reasons state at p. 4,

[t]he Notice of Proposal clearly outlines the process necessary for an appeal and states the 15 day deadline. Other than an alleged unfamiliarity with the process no evidence was given of any incident or impediment that would explain why the Applicant was unable to file an appeal in time to meet the deadline. No extenuating circumstances such as illness, accident or personal crisis of any sort were presented to offer a reasonable or credible explanation for failure to file an appeal within the 15 day limit.

[29] In our view, the LAT conclusion that there was no explanation for the delay was reasonable.

Prejudice to the Other Party

[30] With respect to the third factor to be considered, prejudice to the other party, the Appellant argues that the LAT erred in considering only the prejudice to the LAT and not the prejudice to the Appellant, and in failing to consider whether any prejudice could be compensable by costs. In the circumstances, having found that there was no good explanation for the delay, the LAT considered that “the granting of exemptions to this policy without sufficient cause would lead to chronic abuse and unnecessary delay in the work of the Tribunal.”

[31] In our view, the LAT was required to consider the prejudice to the Registrar as a result of the delay that would have resulted from the extension of the appeal period. Its reasons do not expressly do so.

[32] Such prejudice might, for example, include any prejudice that would result from allowing the Appellant to continue with his licence pending the appeal. The LAT did not clearly articulate prejudice in these terms. Rather, it seems to have only considered the general institutional need for respect of the rules and deadlines.

[33] Despite our concern that the LAT did not properly apply this factor, we conclude that it was only one of the factors that led the LAT to its ultimate conclusion. Viewed within the context of the reasons as a whole, this error would not render the decision unreasonable.

The Merits of the Appeal

[34] Finally, the Appellant submits that the LAT erred in concluding that his appeal did not have merit. He submits that there was no evidence before the LAT in relation to the earlier OMVIC hearing, and that the findings of OMVIC were not before the LAT. He argues the Notice of Proposal, which contains the particulars of the outstanding orders, was not evidence. Rather, it was more akin to a statement of claim, amounting to mere allegations. Given the broad scope of potentially relevant evidence on a s. 6(1) hearing, the Appellant submits that the LAT simply did not have evidence before it that would justify the finding that the appeal was without merit.

[35] The LAT considered the evidence before it and concluded that the appeal did not have merit. In our view, it was entitled to consider the particulars contained in the Notice of Proposal relating to the violations before the Discipline Committee, the history of the matter, and the findings made in the earlier proceedings before OMVIC that resulted in its order that the Appellant take the course. These were not merely allegations, as the Appellant claims, because they had previously been established in the disciplinary proceedings.

[36] The Notice of Proposal contains additional particulars relating to matters since those proceedings. We agree that it was not open to the LAT to assume that there would be no merit to an appeal on the basis of these allegations, as they had yet to be proven. In the circumstances, however, we are of the view that even in the absence of these allegations there was ample evidence to support its conclusion that there was no merit to the appeal. The Appellant was to have taken the course by December 29, 2010, and he had not done so at the time of the LAT hearing in September 2011.

[37] In addition, this argument ignores the fact that it was up to the Appellant, on a motion for an extension of time, to demonstrate some merit to the case. It was not up to the Respondent to prove the case on the merits. The Appellant could have demonstrated some merit to the case, for example, by offering some clearer and more specific evidence as to why he had not taken the course. Instead, the affidavit evidence is thin and states only that,

[i]t was always my intention to complete… [the course], but unfortunately I could not complete same on or before October 29, 2010 as a result of various personal commitments. If the within motion is permitted, I will take the Georgian College Course right away. [Affidavit of Ziad Manuel, sworn September 9, 2011, para. 11.]

[38] This is even more problematic in light of the fact that the record indicates that the Appellant has made conflicting statements about his intentions to take the course and his reasons for not doing so to date. Counsel for the Respondent referred us to a letter from Mr. Manuel requesting a motion date (dated August 30, 2011), attached as an exhibit to his affidavit, in which he stated that he had made an appointment to take the test.

[39] In short, we are not satisfied that it was unreasonable for the LAT to conclude that the appeal did not have merit.

Justice of the Case

[40] It is clear from the authorities cited that the “justice of the case” is the overriding consideration. In fact, the other factors considered above may properly be understood to be factors that assist in assessing whether the justice of the case requires that the extension be granted: see Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109 (C.A.), at paras. 4-5.

[41] We do not agree that the LAT failed to take the “justice of the case” into consideration. It reviewed the Appellant’s evidence and the circumstances, and concluded that “he was the author of his own misfortune”. The Appellant filed very little evidence on the application to extend, and the evidence that he did file was vague.

[42] The LAT considered the explanations offered by the Appellant for the delay, and the pattern of his conduct, and concluded that justice did not require granting the exemption in this case. We do not agree that it failed to take the Appellant’s claim of hardship into consideration. Having said this, the Appellant’s evidence was simply that his family would suffer financially if his registration was revoked.

[43] As set out above, the Appellant’s own evidence indicated that he has yet to take the course, although he indicated that he would if this court so required. He states that he has left 5 Star’s employment, but gives no indication when that occurred. In short, the Appellant did not file persuasive evidence to support his argument that the extension should be granted. The LAT’s conclusion that the justice of this case did not require granting the extension was reasonable in the circumstances of this case.

Conclusion

[44] For the foregoing reasons, we conclude that the LAT reasonably held that the Appellant had not satisfied it, on the basis of the appropriate legal considerations, that the extension should be granted in the circumstances. The appeal is therefore dismissed.

[45] Costs to the respondent are fixed at $3,000.00 inclusive of HST and disbursements.

Harvison Young J.

Swinton J.

Hennessy J.

Released: April 5, 2012

CITATION: Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492

DIVISIONAL COURT FILE NO.: 459/11

DATE: 20120405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Hennessy and Harvison Young JJ.

BETWEEN:

ZIAD MANUEL

Appellant

– and –

REGISTRAR, MOTOR VEHICLE DEALERS ACT, 2002

Respondent

REASONS FOR JUDGMENT

Harvison Young J.

Released: April 5, 2012