Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-04-24
FILE:
7298/MVDA
CASE NAME:
7298 v. Registrar, Motor Vehicle Dealers Act 2002
An Appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B - to Refuse Registrations
Khan Trading Corporation o/a Maple Leaf Autos, Faraz M. Khan and Mushtaq A. Khan
Applicants
-and-
Registrar, Motor Vehicle Dealers Act 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicant Mushtaq Khan:
Self-represented
For the Respondent:
Elizabeth Maishlish, Counsel
Heard in Toronto by teleconference:
April 23, 2012
ORDER
Mushtaq A. Khan (the “Applicant”) brought a motion pursuant to section 7 of the Licence Appeal Tribunal Act (the “Act”) for an order extending the time for filing an appeal of the Registrar’s Notice of Proposal to refuse registration dated March 12. 2012. The Registrar opposes the motion.
By his Notice of Proposal, the Registrar proposes to refuse registration to Khan Trading Corporation o/a Maple Leaf Autos (“Khan Trading”), Faraz M. Khan and Mushtaq A. Khan. The Notice of Appeal with respect to Khan Trading was filed on March 19, 2012. Mushtaq Khan filed the appeal on its behalf. No appeal was received from either Faraz Khan or Mushtaq Khan within the 15 day appeal period. After confirming that no appeal had been filed, the Registrar proceeded to issue a final notice for both individuals, specifically stating that the Registrar was carrying out the Proposal to refuse their registrations. The notices are dated March 30, 2012.
The Applicant received this notice on or about April 3, 2012. He then filed an appeal, on his own behalf, on April 5, 2012 whereupon he was advised by the Tribunal that his appeal was out of time, resulting in the within motion.
In the interim, a pre-hearing conference has been scheduled for the appeal by Khan Trading, to take place on April 27, 2012. The Applicant will be appearing on behalf of Khan Trading in that proceeding.
The Applicant, as grounds for this motion, states that it was through inadvertence that he did not file an appeal of the proposal to refuse his registration as a salesman. It was an oversight on his part. He submits that it is logical that he would appeal both the refusal of the dealership and the salesperson licences. In oral submissions, he expanded upon this, stating that he did not understand from the Notice of Proposal that there was an issue regarding his personal licence as he did not believe that there was any reason for the Registrar to reject his application. He acknowledged that the Tribunal, upon receipt of the Notice of Appeal of Khan Trading, with the $100 filing fee, did explain that the fee was required for each appeal. He indicated to the Tribunal that he was not filing an appeal on his own behalf because, it seems, he did not believe at that time there was any reason for his own application to be rejected.
Ms Maishlish stated that it is clear on its face that the proposal related to all three of the named parties. Mr. Khan clearly understood the process and the time limitations as he filed, on behalf of Khan Trading, within the prescribed period. She submits that he has not provided an explanation for his “forgetfulness’ and given the prompt from the Tribunal and his response that he would not be appealing personally, what explanation he has purported to offer is not acceptable.
In support of the Registrar’s position, Ms. Maishlish cited the recent decision of the Divisional Court in Manuel v. Registrar, 2012 ONSC 1492, 2012ONSC 1492. In particular, she drew the Tribunal’s attention to two of the four factors which the Tribunal must consider on such a motion, the prejudice to the Registrar and the merits of the appeal. On the issue of prejudice, the time period within which appeal must be made provides the Registrar with finality and allows him, where anappeal is taken, to allocate the necessary resources to the matter. Regarding the merit of the appeal, she submits that Mr. Khan has not demonstrated any merit to his case.
The Manuel decision sets out the four factors for consideration, with no one factor necessarily having ascendance:
The existence of a bona fide intention to appeal;
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
The Applicant has, throughout this process, acted without legal representation and he stated his intention to continue in that manner. He filed the appeal on behalf of Khan Trading within the 15 day period, thus showing an awareness of the process. He states he misunderstood, having read the Notice of Proposal, the need to file on his own behalf, perhaps naively believing that his registration could not be a problem. Once he became aware of the fact that his registration was very much in issue, with the Final Notice, he promptly appealed. In the circumstances, the Tribunal concludes that the Applicant intended to appeal the Registrar’s proposal, as he did do on behalf of Khan Trading. The Tribunal agrees with Mr. Khan in that it would be illogical for him to appeal on and not the other, assuming he understood the imperative to do so regarding his personal registration.
In terms of the length of the delay, it is seven days at most. While this is not to suggest that a short delay should necessarily result in an extension, on these facts, where one appeal is active, the delay on the second is not significant.
The very fact of the first appeal lends less effect to the ‘prejudice’ factor. The Registrar will be proceeding to hearing on this Notice of Proposal with the necessary resources to be allocated to it. Ms. Maishlish quite fairly conceded that there will indeed be some commonality of issues between the two applicants. Mr. Khan is the principal of Khan Trading. Further, unlike the facts in Manuel where the Applicant was in business and had exhibited a pattern of irresponsible conduct, Mr. Khan is not yet registered. There is no issue on these facts that a noncompliant registrant is continuing to operate, possibly raising public interest concerns, which would be a matter for the Registrar’s attention.
The Applicant has alluded to what he believes to be the merit of his appeal, that the nondisclosure is not his, but rather relates to Faraz Khan. He believes his case to be strong and wants the opportunity for a hearing. Again, in contrast to the facts in Manuel, there is nothing before the Tribunal to suggest there is little or no merit to Mr. Khan’s appeal. The Tribunal will be dealing with the merits in this matter by virtue of the appeal that has been filed for Khan Trading. As the Divisional Court noted,” …’justice of the case’ is the overriding consideration.” Where there is a matter arising from one and the same notice of proposal proceeding to hearing, and arguably some misunderstanding by an unrepresented party on the need to file a second notice of appeal on, in essence, the same issues, and where there is no apparent prejudice to the other party, the “justice of the case’ compels the Tribunal to conclude that on these particular facts, an extension of time for the filing of the notice of appeal is appropriate.
Therefore, pursuant to section 7 of the Act, the Tribunal hereby grants the extension of time for the appeal of the refusal to register Mushtaq A.Khan as a salesperson as proposed in the Registrar’s Notice of Proposal dated March 12, 2012 and accepts the Notice of Appeal dated April 5, 2012.
LICENCE APPEAL TRIBUNAL
_________________________
Patricia McQuaid, Vice-Chair
Released: April 24, 2012