Khalid Chaudry o/a Fine Auto Sales v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 CanLII 23005

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-04-27

FILE: 7157/MVDA

CASE NAME: 7157 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 – dated 28th of November, 2011 to Revoke Registration

Khalid Chaudry o/a Fine Auto Sales Applicant

-and-

Registrar, Motor Vehicle Dealers Act, 2002 Respondent

CONSENT ORDER

CONSENT ORDER

Upon the application to the Tribunal by Khalid Chaudry o/a Fine Auto Sales, the Applicant, and the Registrar, under the Motor Vehicle Dealers Act, 2002 for issuance of a Consent Order of the Tribunal without a hearing pursuant to section 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; and

Having reviewed the written settlement signed by the Applicant and the Registrar, Motor Vehicle Dealers Act, 2002 as to the disposition of these proceedings which is filed and attached hereto as Schedule “A”;

NOW THEREFORE, upon consent of the parties, this Tribunal orders that the proceedings in this matter are concluded and disposed of without a hearing on the basis of the terms set out in the said Schedule “A”, which are incorporated into and made part of this Order.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Chair

RELEASED: April 27, 2012

SCHEDULE "A"

TO: Licence Appeal Tribunal 20 Dundas Street West, 5th Floor Toronto, ON M5G 2C2

FROM: The Registrar Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council 789 Don Mills Road, Suite 800 Toronto, Ontario M3C 1T5

AND FROM: Khalid Chaudry o/a Fine Auto Sales c/o 59 Coxworth Cres. Scarborough, ON M1B 1E2

Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 Khalid Chaudry o/a Fine Auto Sales (“the Dealer”) and the Registrar, Motor Vehicle Dealers Act, 2002, (“the Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, do hereby waive the requirements of a hearing and consent to an Order of the Licence Appeal Tribunal based upon the following terms and conditions:

1. The Dealer will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer to buy, sell or lease motor vehicles shall be registered as a salesperson to the Dealer.

2. The Dealer further acknowledges that the restrictions concerning the activities of salespersons referred to in these Terms and Conditions apply to buying, selling and leasing on behalf of the Dealer. "Buying, selling and leasing" refers to showing a vehicle to a prospective purchaser or lessee, or any form of negotiation concerning the purchase sale or lease of a motor vehicle and is not limited to the signing of contracts (see “trade” as defined in the Act). This further includes attendance at auction on behalf of the Dealer and positions commonly referred to as Sales Manager, Finance and Insurance Manager, Branch Manager, Business Manager, General Manager or any individual who has supervisory authority over salespersons, signing authority or who may be defined as a “person-in-charge” of the Dealer.

3. The Dealer will not conduct trades with anyone who is in the business of buying, selling or leasing motor vehicles without first confirming that the person is registered as a dealer under the Act.

4. The Dealer will ensure that all advertisements placed by or on behalf of the Dealer will comply with section 36 of Ontario Regulation 333/08 as well as OMVIC’s Standards of Business Practice, 2010.

5. The Dealer acknowledges and understands that his registration will not be used to buy, sell or lease motor vehicles where he knows, or ought to know, the purchase, sale or lease of those vehicles will facilitate an illegal or unethical practice.

6. The Dealer will comply with OMVIC's Code of Ethics and Standards of Business Practice, 2010 as may be amended from time to time.

7. The Dealer agrees he will not be involved with the buying, selling or leasing of motor vehicles without the benefit of registration.

8. The Dealer will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer are informed concerning the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.

Books and Records

9. The Dealer agrees to maintain a garage register in accordance with the Highway Traffic Act and section 57 of Ontario Regulation 333/08 and will maintain all books and records as required by the Act at the Dealer's registered premises. The Dealer further agrees to provide free access to books and records of the Dealer to any authorized representative of the Registrar.

10. The Dealer will ensure that any vehicles sold are registered in the name of the purchaser in the records of the Ministry of Transportation before releasing the vehicle to the purchaser.

11. The Dealer will not purchase a vehicle without ensuring the vehicle is registered to the seller in the records of the Ministry of Transportation.

12. The Dealer agrees to register all vehicles purchased within 6 days in accordance with the Highway Traffic Act.

13. The Dealer agrees that, in the event his books and records are lost, stolen or destroyed in whole or in part, he shall advise the Registrar, in writing, within 5 days of the event in accordance with section 55 of Ontario Regulation 333/08, and shall include all relevant documentation including, but not limited to, police reports, insurance claims, affidavits, etc. The Dealer further agrees to make all reasonable efforts to reconstitute the lost, stolen or damaged records.

14. The Dealer agrees, prior to the removal of any records from the registered premises of the Dealer, to obtain a receipt including the recipient's name, address, phone number, description of records taken, time of return and signature of recipient. The Dealer further agrees to make said receipt available to any representative of the Registrar, upon request.

15. The Dealer shall maintain books and records, which accurately record the nature of transactions involving the purchase, sale or lease of a motor vehicle. The Dealer will not be involved in the creation of books and records, which are misleading as to the nature of a transaction involving the purchase, sale or lease of a motor vehicle.

Premises

16. The Dealer acknowledges and understands that he will have 60-days from the date of this Order to find a premise. The Dealer further agrees to provide the Registrar with notice of his new premise by way of a Business Change Notice within 5-days of having found a location from which to operate and further agrees that said premise will comply with all municipal by-laws.

17. The Dealer agrees to operate exclusively from the location approved by the Registrar. The Dealer further agrees to apply for the Registrar's approval, by way of prior written notice, of any change in location.

18. The Dealer agrees not to invite the public to deal at a place other than his approved location.

19. The Dealer agrees to maintain a sign at the Dealer's registered premise that is visible to the public.

20. The Dealer will have a phone number that is publicly listed with the Dealer's registered name and address.

Disclosure

21. The Dealer agrees that he is under a positive obligation to disclose, in writing on the bill of sale, all material facts about the vehicles he sells or leases to his customers, whether or not the Dealer agrees with the disclosure and whether or not the vehicle has been branded through the Ministry of Transportation. Material facts include, but are not limited to, disclosure of salvage, previous salvage, accidented and repaired, frame damage, theft recovery, unibody damage, previous taxi cab, previous police car, previous daily rental, insurance write-off and any other material fact which, in the Registrar's opinion, may affect one's decision to purchase or lease the vehicle. In the case of damaged vehicles, the Dealer further agrees to disclose as much detail as possible with respect to the nature and severity of the damage. The Dealer agrees to make reasonable efforts to research the history of all the Dealer’s vehicles prior to sale to ensure all material facts are disclosed.

22. The Dealer agrees that, should any information come to light, which the Registrar deems to be a material fact concerning a vehicle the Dealer has sold, the Dealer will comply with all reasonable requests made by the Registrar to provide compensation to the purchaser, whether or not the Dealer agrees with the disclosure and whether or not the vehicle has been branded through the Ministry of Transportation.

23. The Dealer agrees that all contracts for trades will comply with sections 40 to 45 of Ontario Regulation 333/08 as applicable.

24. The Dealer agrees to accept full responsibility for the quality of any repairs or alterations to a motor vehicle that are completed by the Dealer’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Dealer.

Financial Responsibility

25. The Dealer agrees, within 60-days of the date of this Order, to provide the Motor Vehicle Dealers Compensation Fund with security in the amount of $7,000 to be held in trust for the benefit of the Fund for a period of 2-years from the date of this Order.

26. The Dealer further acknowledges that should the Dealer be registered for a period of less than 2-years from the date of this Order, the Fund shall hold the $7,000 security for a period of 2-years from the date the Dealer’s registration ceases under the Act.

27. The Dealer agrees that if any claim is made to, and paid by, the Motor Vehicle Dealers Compensation Fund, the Dealer shall pay or make arrangements to pay the Fund within 10-days of being notified that the Dealer is in default with the Fund.

28. The Dealer agrees to pay any outstanding debts against the Dealer, when due.

29. The Dealer will comply with all federal, provincial and municipal tax obligations. Without limiting the generality of the foregoing, the Dealer will ensure all required filings are current and submitted with required payments. All taxes collected are deemed to be trust funds and will not be used for any other purpose other than remittances to the federal, provincial and municipal government.

30. The Dealer agrees to maintain a bank account in accordance with section 59 of Ontario Regulation 333/08.

31. The Dealer further agrees to notify the Registrar of the account information, including the name and address of the financial institution, the account number and the signing officers on the account and to ensure that all financial transactions of the Dealer are processed through these accounts.

32. The Dealer agrees to provide the Registrar with written notice of any new sources of financing or guarantors for the dealership within 10 days of having arranged for, or received, the financing, whichever comes first. This does not apply where the Dealer has applied on his/her own account and has obtained financing from a corporation registered under the Loan and Trust Corporations Act, the Bank Act or from a credit union or league to which the Credit Unions and Caisses Popularies Act, 1994, as amended from time to time, applies.

Other

33. The Dealer understands that the Registrar is relying on the accuracy and completeness of all documents, statements or information provided in support of his continued registration under the Act. The Dealer confirms that all documents, information or statements provided to the Registrar are true to the best of the Dealer's knowledge and belief and that the Dealer has given full answers to all questions and requests made by the Registrar in connection with the Dealer’s continued registration.

34. The Dealer acknowledges that the Registrar may take further administrative action in the form of a proposal to revoke his registration, arising from any matters that have occurred or may occur related to honesty, integrity, financial position and/or compliance with these terms and conditions.

35. The Dealer hereby acknowledges that he has obtained or has had the opportunity to obtain independent legal advice with respect to his consent to the terms and conditions set out in this document.

Signed in the City of this day of 2012.

Khalid Chaudry (signature) o/a Fine Auto Sales

These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.

Date:

Carl Compton Registrar