Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-03-06
FILE:
7693/GAR
CASE NAME:
7693 v. Registrar of Motor Vehicles
Appeal from a Notice of Proposal of The Director of Vehicle Inspection Standards under the Highway Traffic Act, R.S.O. 1990, c. H.8 to refuse a Motor Vehicle Inspection Station Licence and to refuse a Motor Vehicle Inspection Station Mechanic’s Registration
Adam Zurawski
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Harinder Gahir, Vice-Chair
APPEARANCES:
For the Applicant:
Matt Milczarczyk Counsel
For the Respondent:
Patrick S. Moore, Counsel
Heard in Toronto:
January 24, 2013
REASONS FOR THE DECISION AND ORDER
BACKGROUND
This is an Appeal by Adam Zurawski (the “Applicant) to the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice dated October 3, 2012 (the “Proposal”), issued by the Director of Vehicle Inspection Standards (the “Director”) proposing to refuse a Motor Vehicle Inspection Station Type 6 (the “MVIS” or the “Station”) licence and mechanic registration of the Applicant as an MVIS mechanic pursuant to Subsections 91(3)(a) and 92(4)(b) of the Highway Traffic Act (the “Act”).
The Director issued the Proposal for the following reasons:
- The Applicant was a licensee and mechanic of an MVIS at Dundas Street East, London that was first registered on November 7, 2003. Under this licence, the Applicant repeatedly violated the requirement to send in rebuilt files to the Director within seven days as required by section 10.1 of Regulation 601:
a) During his above registration the Station issued 240 structural inspection certificates. However, only 99 rebuilt files were sent to the Director and 141 files are still outstanding.
b) Of the 99 rebuilt files sent to the Director, the Director issued 44 warnings for failure to send in complete files within the prescribed period.
c) The Applicant pled guilty and was convicted of 10 counts for failure to send in the rebuilt files in accordance with the Regulations.
On or around July 4, 2004, the Applicant abandoned the licensed premises at Dundas Street without notice to the Ministry of Transportation. On February 28, 2005, the Applicant was convicted of 10 violations under section 90(3) (a) of the Act for operation from an unlicensed location.
On March 4, 2005, the Applicant was issued an MVIS licence for Clarke Road, London. This licence expired at the end of 2005. During the term of the licence, the Director issued the Applicant 52 warnings for failure to send in the required documentation in the prescribed time as required by section 10.1 of Regulation 601. On May 5, 2006, the Applicant was convicted of 49 offences under the same section. In addition, he failed to send in any rebuilt file at all with respect to two structural inspection certificates.
ISSUES
Should the Proposal of the Director to refuse the MVIS’s licence be carried out?
Should the Proposal of the Director to refuse the MVIS mechanic’s licence be carried out?
EVIDENCE
The Director’s evidence included document briefs and testimony of Structural Inspection Advisor/Enforcement Officer, Alin Gibson, and Transportation Enforcement Officer/Vehicle Inspector, Stan Piotrowicz. The Applicant’s evidence included his own testimony and that of his sister.
Mandatory Branding Program
Officer Gibson testified that the Ministry of Transportation (the “Ministry”) started the Mandatory Branding Program in March 2003 with the objective to make the roads safer, promote consumer protection, and discourage vehicle registration fraud and theft. Branding is the process by which a “brand” is assigned to a vehicle that indicates whether a vehicle has been severely damaged in the past. The brand is then recorded in the Ministry’s Vehicle Registration System and on the ownership document of each vehicle. The Mandatory Branding Program deals with vehicles written-off as a result of a collision, flood, or theft, causing a total loss.
There are four vehicle brands:
i) Irreparable: assigned to a vehicle which is not worthy of repair and therefore
cannot be driven again in Ontario. The vehicle can only be used for parts.
ii) Salvage: assigned to a vehicle which can be repaired or used for parts or scrap.
iii) Rebuilt: assigned to a vehicle which was written-off, branded as “Salvage” and
was repaired. To qualify for the rebuilt brand, the owners must have photographs
showing the pre-repair damage, and receipts of the parts used to the repairs.
Vehicles must have a Structural Inspection Certificate from an authorized
technician as a licensed MVIS.
iv) None: assigned to a vehicle which may never have been in a collision. If it has
been in a collision, the degree of the damage is not severe enough to meet
branding criteria.
“Rebuilt” or “None” are the only acceptable brands for a consumer buying a used vehicle for on-road use. The Mandatory Branding Program helps to protect the consumers by providing important information about possible past damage to a vehicle.
Process of assigning the rebuilt brand to a vehicle
An MVIS issues a Structural Inspection Certificate (SIC) for a “salvage” branded motor vehicle after inspecting the vehicle in accordance with the inspection standards and complying with Schedule 9 of Regulation 611. The MVIS has seven days after issuing the SIC, to send in a package of documents and information to the Branding Unit of the Ministry as set out in s. 10.1 of Regulation 601, which includes:
a. Frame measurements taken by the licensee’s inspecting mechanic;
b. All documentation confirming the identity of the motor vehicle;
c. Compiled insurance estimates for repair;
d. Pictures of the vehicle before and after repair;
e. Identity of the owner and builder;
f. Invoiced for all major parts used to rebuild;
g. A Rebuilt Vehicle Parts Audit Form.
Officer Gibson further testified that the responsibility to ensure that the documentation is complete and accurate rests equally with the inspecting mechanic and the station.
Applicant’s credentials
After completing his grade 12 education, the Applicant enrolled in a college for mechanical engineering but quit after two years. He also took six I-car courses and has a 310 B Collision and Body Repair Technician licence. The Applicant began working with his father at his garage when he was 16 years old. The Applicant was registered under the Act from November 7, 2003 until February 2005 and March 2005 until December 2005, after which he did not renew his registration as an MVIS operator and mechanic.
After lapse of his registrations in December 2005, the Applicant worked at his father’s MVIS. Thereafter, from 2007 until 2012 he worked with another auto garage as an auto-body mechanic. He quit his last job in early 2012 and began operating his own auto garage in the City of Kitchener. Presently, the Applicant performs body repairs on vehicles and certifies them through other MVIS. He also has an auto salesperson licence and plans to obtain a used car sales dealer licence. In October 2012, the Director proposed to refuse the Applicant’s application for MVIS operator and mechanic registrations for his garage located at Hoffman Street, Kitchener. The Applicant appealed the refusal to the Tribunal.
In order to resolve the issues the Tribunal must analyze the past conduct of the Applicant in light of the provisions of the Act, which provide:
Grounds for refusal:
Section 91 (3): Subject to section 95, the Director may refuse to issue a motor vehicle inspection station licence where, in his or her opinion,
(a) the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors affords reasonable grounds for belief that the motor vehicle inspection station will not be operated in accordance with the law and with honesty and integrity;
(b) the proposed motor vehicle inspection station or its operation would contravene this Act or the regulations or any other Act or regulation or any municipal by-law respecting its establishment or location;
(c) the applicant is not competent to operate a motor vehicle inspection station in accordance with this Act and the regulations; or
Section 92 (4): Subject to section 95, the Director may refuse to register a motor vehicle inspection mechanic where, in his or her opinion,
(a) the past conduct of the mechanic affords reasonable grounds for belief that the mechanic will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity; or
(b) the mechanic is not competent to act as a motor vehicle inspection mechanic.
As stated above, the Applicant was first registered on November 7, 2003 as an MVIS operator and mechanic of a Station located at Dundas Street, in the City of London (the “Dundas location”). This Dundas location came to the notice of the Director in October, 2004 when the Director was unable to obtain a response from the Applicant with respect to missing or deficiently submitted rebuilt files. Officer Piotrowicz visited the Station to contact the Applicant regarding missing files. Officer Piotrowicz discovered the Dundas location was vacant. He became concerned about the SICs that the Director had issued to the Applicant. The SICs must be returned to the Ministry if and when the Station ceases operations. If those are not returned, there is potential of misuse. Officer Piotrowicz located the Applicant through the landlord of the Dundas location and learned he was operating his business from Clarke Road, London (the “Clarke location”). The Applicant neither notified the Director of his relocation nor registered the Clarke location with the Director.
Officer Piotrowicz testified that the licence of an MVIS is always location specific. The Director must approve the premises and inspect the equipment and tools before the MVIS can be licensed. Similarly, the Director issues the SICs to a particular licensed MVIS location and tracks them as such.
Since the onset of the Dundas location and until the time Officer Piotrowicz visited the premises, the Applicant had obtained 280 blank certificates from the Director of which he issued 269. However, he only submitted 108 files to the Director pertaining to the issued SICs. Of the 108 files submitted, the Director issued 42 warnings to the Applicant for failure to submit complete files. In the absence of completed files, the Director cannot assume the Applicant inspected the vehicles for which he had issued the SICs.
In February 2005, the Applicant was convicted of 10 violations under s. 90(3)(a) of the Act for operation from an unlicensed location. On February 28, 2005, the Applicant pled guilty and was convicted of 10 counts under section 99(1) for failure to send in the rebuilt files to the Director within seven days as required by section 10.1 of Regulation 601.
Although the Applicant had questionable conduct at the Dundas location, the Director issued an MVIS operator and mechanic licence to the Applicant, for an MVIS for the Clarke location in May 2005. As Officer Piotrowicz testified, the Director wanted to allow the Applicant a second chance to improve his compliance with the Act and Regulations. Furthermore, the Director cautioned the Applicant that if he was found to be in violation of the Act, at any time in the future, he would be charged and his licences would be revoked.
Officer Gibson testified the Applicant assured the Director he would improve his record keeping at the Clarke location though eventually he failed to do so. At the Clarke location, the Applicant issued 182 SICs, of which he failed to send 3 files to the Director. Of the 179 files submitted, the Director placed warnings on the Applicant’s record on 48 occasions for sending in incomplete files within the required timeframe. The Director charged the Applicant on August 25, 2005, with 63 counts under section 99(1) of the Act. On May 5, 2006, the Applicant pled guilty and was convicted of 49 counts. The Director withdrew the remaining counts.
Officer Gibson referred the Tribunal to Exhibit 4, Tab 9, exemplifying randomly selected incomplete files submitted by the Applicant to the Director. The deficiencies in these files varied from minor discrepancies as missing insurance estimates to more serious issues as missing information pertaining to the wheel or body alignments of the vehicles.
The Applicant did not renew his MVIS operator and mechanic registrations after those lapsed in December 31, 2005.
Under cross-examination, Officer Gibson testified he was not aware of any convictions against the Applicant for faulty inspections. He further testified that at present there are different compliance requirements for MVIS rebuilt files. The Director no longer sends a second reminder letter after 21 days of notice. The new procedure allows the Director to suspend the registration of vehicles for which the Station has failed to provide complete files.
Explaining his previous violations of the Act, the Applicant testified, at that time, he was single and immature. He further testified that he is now a family person and has a different mentality in terms of responsibility. In addition to himself, he plans to employ his sister, on a part-time basis, to do the paperwork with respect to the SICs.
The Applicant’s sister lives in London, Ontario and presently works as a full-time Supply Chain Analyst. She worked full-time at her father’s MVIS from 2004 to 2008 and thereafter has been working part-time and forwards all necessary documents to the Director for the issued SICs. She seemed knowledgeable with respect to the process involved in branding of the vehicles in Ontario. Under cross-examination, she agreed her father’s MVIS received 4 warnings in 2012, 6 warnings in 2011 and 17 warnings in 2010.
APPLICATION OF THE LAW TO FACTS:
The Divisional Court in Registrar, Motor Vehicle Dealers Act v. Unity-A-Automotive Inc. et al., 2009 CanLII 67420 (ON SCDC) at paragraph 22 reiterated the test to be applied in case of a revocation of registration under that particular Act. The Court held:
[T]he legislation does not create a subjective test to determine whether the applicant for registration knowingly acts outside the law. The legislation asks whether the conduct of the applicant affords reason to believe he or she will not act within the law and with honesty and integrity in the future. [emphasis in original]…Conduct does not require evidence of deceit or even of willful blindness
The same test applies in case of refusal of registration under the Act here.
The Applicant admitted all the allegations contained against him with respect to his questionable past conduct. He vowed not to repeat his past mistakes. He plans to employ his sister on part-time basis to assist him in administrative work pertaining to Branding Program. He indeed places heavy reliance on his sister. However, his sister is full-time employed and works for her father on the weekends. She lives approximately an hour drive from the location of the Applicant’s garage. On the basis of the evidence, the Tribunal is not persuaded that she will have adequate time commitment necessary for the proper operations of the Applicant’s MVIS.
The Applicant’s Counsel submitted that the Applicant paid substantially, in terms of fines, for his past mistakes and has learned from those mistakes and thus he should be given a third chance. In support of his submissions, Counsel referred the Tribunal to Re1526599 Ontario Inc. (c.o.b. Pennzoil Lube Center) [2009] O.L.A.T.D. No. 143. In that case, the Tribunal took into consideration the Registrant’s guilty plea and found:
The Tribunal does not believe that the Applicant willfully set out to sign SSCs as an unregistered mechanic. His plea of guilty to the charges is evidence that he accepts the regulations of the industry and has respect for their compliance. .... He further accepted his conviction in 2007 for a faulty inspection and recognized that there are areas in the operation of his business that require improvement.
In Pennzoil, the Tribunal also considered Stetler v. The Ontario Flue-Cured Tobacco Growers. Marketing Board, 2009 ONCA, 234 at 37, in which the court held:
It was unreasonable for the Tribunal to give no consideration to the number of times in which a person has engaged in unlawful activity or to the quantities, and further that There must be some degree of proportionality between the wrongdoing and the penalty imposed. The importance of proportionality is particularly significant where, as here, a person’s livelihood is at stake. As the Divisional Court stated in Carruthers v. College of Nurses of Ontario (1996), 1996 CanLII 11803 (ON CTGD), 31 O.R. (3d) 377 at p. 404: a [N]ot every case is the worst case, nor every person adjudged guilty worthy of the most severe sanction. There must be proportionality between the underlying findings and the penalty imposed
The facts in Pennzoil are different than those in this case. In Pennzoil, the registrant had only four instances of noncompliance with the Act and Regulations whereas in this case, the degree of Applicant’s noncompliance is significantly greater.
The Tribunal appreciates the fact that the Applicant paid the fines imposed on him. However, that alone is insufficient to grant the registrations. The Applicant’s Counsel submitted that the Applicant is a good mechanic but a poor administrator. The Tribunal agrees.
The Tribunal is mindful that the Applicant is now a family person and his spouse is a lawyer. One might argue the Applicant’s wife would play a role in the Applicant’s business as her legal training will assist in the proper administration of the Applicant’s business. However, the Tribunal did not hear such evidence.
Applicant’s Counsel submitted that the Tribunal may impose conditions on the Applicant’s registration and put him under probation. Director’s Counsel opposed the idea of putting the Applicant under conditions, keeping in mind the Applicant’s repeated past violations of the Act. Counsel pointed that the Applicant, despite his past violations of the Act, got a second chance when he was registered for the Clarke location in March 2005.
Considering the testimony of the witnesses and the submissions of both Counsel, the Tribunal had to determine whether, despite adverse finding of past conduct of the Applicant, the registration be granted subject to conditions. As held in Unity supra, The Tribunal must weigh the evidence of the Applicant’s past conduct and provide an analysis of the likely future conduct in light of that past conduct. Past conduct may be excused in some cases where there is evidence to indicate that the business will be conducted in accordance with the law and with honesty and integrity in the future, if the conditions are placed upon the registration.
During his first registration, the Applicant failed in his obligations by not forwarding the completed files on 42 occasions and did not send any files for 141 SICs he had issued. In 2005, he got a second chance to improve his conduct but continued with his previous pattern of non-compliance. During the second registration, which lasted about ten months, he received 48 warnings for sending in incomplete files to the Branding Unit.
The Applicant, having being given two chances to run an MVIS, appears to be unable to adhere to the requirements of the Mandatory Branding Program and has exhibited total disregard for the Act, Regulations and document requirements. Considering the Applicant’s past conduct and absence of a persuasive plan, the Tribunal is not satisfied that the Applicant will conduct his business in accordance with the law and with honesty and integrity if he was granted registration, even with conditions.
DECISION
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Director to carry out his Proposal to refuse the MVIS registrations of the Applicant.
LICENCE APPEAL TRIBUNAL
Harinder Gahir, Vice Chair
Released: March 6, 2013