Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2012-09-17
FILE: 6944/MVDA
CASE NAME: 6944 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 August 8, 2011 to Revoke Registration
Valeri Gourov o/a Master Applicant
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
CONSENT ORDER
CONSENT ORDER
Upon the application to the Tribunal by Valeri Gourov o/a Master, 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 for 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 Schedule “A”, which are incorporated into and made part of this Order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
RELEASED: September 17, 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, ON M3C 1T5
AND FROM: VALERI GOUROV o/a MASTER 191 Bowes Road Unit 10 Concord, ON L4K 1H9
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002, (the “MVDA”), the parties to the proceeding, Valeri Gourov and Master (collectively referred to as 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 (“the Tribunal”) based upon the following Terms and Conditions:
The parties to the proceedings consent to resolving the Proposal to Revoke the respective registrations pursuant to the herein agreed upon Terms and Conditions.
The Dealer agrees to an Interim Suspension for a period of ninety (90) days. Such Suspension will be in force and effect beginning on the date of release of the Tribunal’s Order; and shall expire ninety (90) days thereafter.
Upon the expiry of the Interim Suspension, the Dealer will be bound to the following Terms and Conditions:
The Dealer agrees to registration in the motor vehicle dealer class of “Wholesaler” only as defined in section 21 of Ontario Regulation 333/08.
Initials
The Dealer will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer in any “trade” in motor vehicles as defined in section 1 of the MVDA, which includes but is not limited to, the buying, selling, leasing, advertising or exchanging an interest in a motor vehicle on behalf of the Dealer, shall be registered as a salesperson to the Dealer.
The Dealer will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer are informed of these Terms and Conditions to the extent necessary to ensure compliance with these Terms and Conditions.
The Dealer further acknowledges that the restrictions concerning the activities of salespersons referred to in these Terms and Conditions apply to any trade in motor vehicles. 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.
The Dealer shall not conduct any trades in motor vehicles with anyone who is in the business of trading in motor vehicles without first confirming that the person is registered as a dealer under the MVDA.
The Dealer acknowledges and understands that the registration shall not be used in any trade in motor vehicles where they know, or ought to know, that the trade of those vehicles will facilitate an illegal or unethical practice.
Books and Records
The Dealer agrees to maintain a garage register in accordance with the Highway Traffic Act and section 57 of Ontario Regulation 333/08 and shall maintain all books and records as required by the MVDA 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.
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.
The Dealer shall not purchase a vehicle without ensuring the vehicle is registered to the seller in the records of the Ministry of Transportation.
The Dealer will ensure that all vehicles purchased within 6 days are registered in accordance with the Highway Traffic Act.
The Dealer agrees that, in the event their books and records are lost, stolen or destroyed in whole or in part, they 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.
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.
The Dealer shall maintain books and records, which accurately record the nature of transactions involving any trade of a motor vehicle. The Dealer shall not be involved in the creation of books and records, which are misleading as to the nature of a transaction involving any trade of a motor vehicle.
Premises
The Dealer agrees to maintain a sign at the Dealer's registered premises that is visible and permanently affixed.
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.
The Dealer shall not invite the public at its approved location for purposes of any trade of a motor vehicle.
Disclosure
The Dealer will ensure that all advertisements placed by or on behalf of the Dealer shall comply with section 36 of Ontario Regulation 333/08 as well as the Code of Ethics pursuant to Ontario Regulation 332/08 and OMVIC’s Standards of Business Practice, 2010 and as may be amended from time to time.
The Dealer agrees that it is under a positive obligation to disclose, in writing on the bill of sale, all material facts about the vehicles for the purposes of any trade, 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 may affect the 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.
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 shall 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.
The Dealer will ensure that all contracts for trades will comply with sections 40 to 44 of Ontario Regulation 333/08 as applicable.
The Dealer agrees to accept full responsibility for the quality of any repairs or alterations to a motor vehicle, which were completed by the Dealer’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Dealer.
Financial Responsibility
The Dealer agrees that any and all liens, loans, outstanding bills for the repair or storage resulting from any trade in motor vehicles shall be paid within 10 days; and the Dealer shall provide the Registrar with a statement to that effect.
The Dealer agrees that in the event that the Dealer is petitioned into bankruptcy or has filed a consumer proposal or has fallen into receivership, the Dealer shall notify the Registrar within 5 days of such occurrence.
The Dealer agrees to notify the Registrar within 5 days of any and all judgments registered as against the Dealer.
The Dealer agrees to pay any outstanding debts against the Dealer, when due.
The Dealer shall 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 shall not be used for any other purpose other than remittances to the federal, provincial and municipal government.
The Dealer agrees to maintain a bank account in accordance with section 59 of Ontario Regulation 333/08.
The Dealer 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.
The Dealer agrees that any consumer claim made to the Motor Vehicle Dealers Compensation Fund (the “Fund”) in relation to the Dealer, and the Fund determines entitlement to compensation of the claim pursuant to section 42 of Ontario Regulation 338/08; the Dealer shall reimburse the Fund for any monies paid in relation to the claim.
Other
The Dealer will not knowingly involve ALEX SMIRNOV in the operation of the dealership without the prior written consent of the Registrar. This includes, but is not limited to, any administrative, supervisory, management or customer service responsibilities.
The Dealer will not knowingly trade in motor vehicles with ALEX SMIRNOV or any companies affiliated with ALEX SMIRNOV without confirming that ALEX SMIRNOV is registered as a salesperson and/or dealer under the MVDA.
The Dealer acknowledges and undertakes to immediately enroll in; and attend in person, the Ontario Motor Vehicle Industry Council Certification Course. The Dealer acknowledges and undertakes to be responsible for all fees in relation to enrolment; and provide proof of successful completion within 120 days.
The Dealer understands that the Registrar is relying on the accuracy and completeness of all documents, statements or information provided by them in support of the applications for registration. The Dealer shall confirm 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 applications.
The Dealer acknowledges that the Registrar may take further administrative action in the form of a proposal to revoke their registrations, arising from any matters that have occurred or may occur related to honesty, integrity, financial position and/or compliance with these Terms and Conditions.
The Dealer hereby acknowledges that legal advice has been obtained or the Dealer has had the opportunity to obtain independent legal advice with respect to consent to the Terms and Conditions as set out herein.
The Dealer hereby confirms that by signing and initialling the Terms and Conditions, the Dealer has thoroughly reviewed, understood and accepted the Terms and Condition as set out herein.
Initials
- The Dealer hereby consents to an Order of the Licence Appeal Tribunal, including the Terms and Conditions as set out herein.
Signed in the City of this day of 2012.
Valeri Gourov o/a MASTER (signature)
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date:
Carl Compton, Registrar