Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-10-19
FILE:
7441/MVDA
CASE NAME:
7441 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 May 17, 2012 to Suspend Registrations
Smart Auto Centre Ltd, Lana Dabbagh, Issah Abdallah (a.k.a. Chris George) and Adel George
Applicants
-and-
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
CONSENT ORDER
CONSENT ORDER
Upon the application to the Tribunal by Smart Auto Centre Ltd, Lana Dabbagh, Issah Abdallah (a.k.a. Chris George) and Adel George, the Applicants, 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 Applicants 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
Patricia McQuaid, Vice Chair
RELEASED: Ontario 19, 2012
SCHEDULE "A"
TO: Licence Appeal Tribunal
530 - 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: Smart Auto Centre Ltd.
106 Regina Road, Unit 6
Vaughan, ON L4L 8M8
AND FROM: Issa Abdallah
(aka Chris George)
c/o Fogler Rubinoff LLP
95 Wellington St. W.
Toronto, ON M5J 2Z9
AND FROM: Adel George
c/o Fogler Rubinoff LLP
95 Wellington St. W.
Toronto, ON M5J 2Z9
AND FROM: Lana Dabbagh
c/o Fogler Rubinoff LLP
95 Wellington St. W.
Toronto, ON M5J 2Z9
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 Smart Auto Centre Ltd. (“the Dealer”), Issah Abdallah (“Chris George”), Abdel George and Lana Dabbagh (“Dabbagh”) 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:
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.
The Dealer further acknowledges that the restrictions concerning the activities of salespersons referred to in these Terms and Conditions applies to the trade of motor vehicles which includes 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.
The Dealer, Chris George, Adel George and Dabbagh will not conduct any 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.
The Dealer, Chris George, Adel George and Dabbagh acknowledge and understand that their registrations will not be used to buy, sell or lease motor vehicles where they know, or ought to know, the purchase, sale or lease of those vehicles will facilitate an illegal or unethical practice.
The Dealer, Chris George, Adel George and Dabbagh will comply with OMVIC's Code of Ethics [Ontario Regulation 332/08] and Standards of Business Practice, 2010 as may be amended from time to time.
The Dealer, Chris George, Adel George and Dabbagh agree they will not be involved with the buying, selling or leasing of motor vehicles without the benefit of registration.
The Dealer, Chris George, Adel George and Dabbagh 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
The Dealer agrees to maintain and keep up-to-date 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, Chris George, Adel George and Dabbagh further agree to provide free access to the books and records of the Dealer to any authorized representative of the Registrar.
The Dealer, Chris George, Adel George and Dabbagh agree that, in the event the Dealer’s 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, Chris George, Adel George and Dabbagh further agree to make all reasonable efforts to reconstitute the Dealer’s lost, stolen or damaged records.
The Dealer, Chris George, Adel George and Dabbagh agree, 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 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.
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 will not purchase a vehicle without ensuring the vehicle is registered to the seller in the records of the Ministry of Transportation.
The Dealer agrees to register all vehicles purchased within 6 days in accordance with the Highway Traffic Act.
Advertising and Websites
The Dealer, Chris George, Adel George and Dabbah 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 as applicable.
The Dealer, Chris George, Adel George and Dabbah agree that the Dealer’s website [www.smartautocentre.ca], or any web address offering vehicles for sale on behalf of the Dealer, will invite the public to deal only at the Dealer’s approved location.
The Dealer, Chris George, Adel George and Dabbah agree to ensure that the Dealer’s website [www.smartautocentre.ca], or any web address offering vehicles for sale on behalf of the Dealer, shall be maintained and updated on a regular basis and that any inventory listed on the Dealer’s website shall be a reasonably accurate reflection of vehicles available from the Dealer.
Premises
The Dealer, Chris George, Adel George and Dabbah agree to maintain a sign at the Dealer's registered premise that is visible to the public.
The Dealer, Chris George, Adel George and Dabbagh agree that the Dealer shall 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, Chris George, Adel George and Dabbagh agree not to display vehicles for sale or trade from the Dealer’s inventory unless the display or trade of vehicles is conducted at a location approved by the Registrar.
The Dealer, Chris George, Adel George and Dabbagh agree that any location the Dealer operates from must comply with municipal by-laws.
The Dealer, Chris George, Adel George and Dabbagh agree not to invite the public to deal at a place other than the Dealer’s approved location.
The Dealer agrees to have a phone number that is publicly listed with the Dealer's registered name and address.
Disclosure and Contracts
- The Dealer, Chris George, Adel George and Dabbah agree that the Dealer is under a positive obligation to disclose, in writing on the bill of sale in accordance with section 42 of Ontario Regulation 333/08, all known *material facts about the vehicles sold or leased to its customers.
*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, branded status, originating jurisdiction.
The Dealer, Chris George, Adel George and Dabbah agree that in the case of damaged vehicles, the Dealer shall 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, Chris George, Adel George and Dabbah agree that should the Dealer provide purchasers with copies of vehicle history reports in connection with a vehicle sold by the Dealer, this shall be noted on the bill of sale and initialed by the purchaser.
The Dealer, Chris George, Adel George and Dabbah agree that all contracts for trades will comply with sections 40 to 45 of Ontario Regulation 333/08 as applicable.
The Dealer, Chris George, Adel George and Dabbah agree that should the Dealer engage in trades that involve the financing of a motor vehicle, the Dealer shall ensure that all consumers are provided with an Initial Disclosure Statement (IDS) in accordance with the Consumer Protection Act, 2002.
The Dealer, Chris George, Adel George and Dabbah agree that should the Dealer engage in trades that involve the leasing of a motor vehicle, the Dealer shall ensure that all consumers are provided with a Lease Disclosure Statement (LDS) in accordance with the Consumer Protection Act, 2002.
Financial Responsibility
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.
The Dealer, Chris George, Adel George and Dabbah agree that if any claim is made to, and paid by, the Motor Vehicle Dealers Compensation Fund on behalf of the Dealer, the Dealer, Chris George, Adel George and/or Dabbah shall pay or make arrangements to pay the Fund after being notified that the Dealer is in default with the Fund, if applicable.
Purchasers/Lessees
- In relation to the Inspection conducted on September 6, 2012, the Dealer agrees to provide written confirmation to the Registrar within 30-days of the release of this Order, that full and complete disclosure of prior history has been made to the purchasers/lessees of the following vehicles:
(i) 2003 Ford Explorer – VIN: 1FMZU67E03UA79985
(ii) 2003 Mercedes E500 – VIN: WDBUF70J93A247984
- The Dealer, Chris George, Adel George and Dabbah agree that the Dealer shall institute a process to ensure proper written disclosure is made to purchasers/lessees on all contracts and that said disclosures are initialed by the purchasers/lessees in connection with any trades conducted by the Dealer.
Education
- Chris George, Adel George and Dabbah agree to enroll in, and pass, the one-day on-site OMVIC Automotive Certification Course offered by the Automotive Business School at Georgian College. Chris George, Adel George and Dabbah agree to be responsible for all fees in relation to enrolment. Chris George, Adel George and Dabbah further acknowledge that they will each be required to successfully complete OMVIC’s Automotive Certification Course within 90-days of the release of this Order.
General
The Dealer, Chris George, Adel George and Dabbah understand that the Registrar is relying on the accuracy and completeness of all documents, statements or information provided by them in support of their continued registration under the Act. The Dealer, Chris George, Adel George and Dabbah confirm that all documents, information or statements provided to the Registrar are true to the best of the Dealer’s, Chris George’s, Adel George’s and Dabbah’s knowledge and belief and that full answers have been given to all questions and requests made by the Registrar in connection with their continued registrations.
The Dealer, Chris George, Adel George and Dabbah acknowledge 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, Chris George, Adel George and Dabbah acknowledge that they have taken the time to carefully review these terms and conditions, and by signing, acknowledge that they understand their significance and agree to abide by them.
The Dealer, Chris George, Adel George and Dabbah hereby consent to an Order of the Licence Appeal Tribunal, which shall include the terms and conditions set out herein.
The Dealer, Chris George, Adel George and Dabbah hereby acknowledge that they have obtained or have had the opportunity to obtain independent legal advice with respect to their consent to the terms and conditions set out in this document.
Signed in the City of this day of 2012.
Smart Auto Centre Ltd. (signature)
I have the authority to bind the corporation.
Issa Abdallah [aka Chris George] (signature)
Adel George (signature)
Lana Dabbagh (signature)
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date:
Carl Compton