Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-03-13

FILE:

7763/GAR

CASE NAME:

7763 v. Director of Vehicle Inspection Standards

An Appeal from a Notice of Proposal by the Director of Vehicle Inspection Standards, pursuant to section 92(4)(a) of Highway Traffic Act to refuse Ephrim Iankelevic as an MVIS mechanic.

Ephrim Iankelevic

Applicant

-and-

Registrar, Motor Vehicle Dealers Act 2002

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

E. Alan Garbe, Vice-Chair

APPEARANCES:

For the Applicant:

self-represented

For the Respondent:

Patrick S. Moore, Counsel

Heard in Toronto

February 13, 2013

REASONS FOR DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Proposal dated November 15, 2012, by the Director of Vehicle Inspection Standards (the “Respondent”) to refuse to register the Applicant, E I as a motor vehicle inspection mechanic pursuant to section 92(4)(a) of the Highway Traffic Act, (the “Act”) on the grounds that the past conduct of the Applicant affords reasonable grounds to believe that the Applicant will not act as a motor vehicle inspection mechanic in accordance with the law, with honesty and integrity.

The position of the Applicant was to deny the various allegations of the Respondent and take the position that he was trying to do the best he could given the attitude of the owner and the condition of the motor vehicle inspection station where he was working.

FACTS

At the commencement of the hearing, the Notice of Proposal and Notice of Appeal were entered as Exhibits 1 and 2, respectively. The Director’s Exhibit Book was entered as Exhibit 3, printouts of the payment details with respect to the renewal of the Applicant’s certificate of qualification for the 310T program and the certificate of qualification for the 310S program were entered as Exhibits 4 and 5, respectively.

Gordon M. Sadler, a transportation enforcement officer with the Ministry of Transportation, whose resume appears at Tab 3 of Exhibit 3, gave evidence on behalf of the Respondent and the Applicant testified on his own behalf.

There is no dispute with respect to the basic facts surrounding this matter.

At all material times, the Applicant worked as a motor vehicle inspection mechanic (“MVIM”) for Eli-Trans Ltd., a licensed motor vehicle inspection station (“MVIS”) which company was owned by Roza Seff. The Applicant’s licence had been terminated as of March 10, 2010. The Applicant was now applying for a licence as a MVIM so he could work for 3 Star Auto Sales and Service, a motor vehicle inspection station located in Toronto.

Officer Sadler testified that he had conducted seven MVIS audits of Eli-Trans Ltd. from January 19, 2007 to March 10, 2010 and on each occasion found that tools necessary to conduct a proper MVIS inspection were not on the premises; that the premises were in such a state it would be difficult to perform an inspection and at the times when he attended the premises of Eli-Trans Ltd. without prior notice, the Applicant was not on site.

The witness referred to the mechanic record appearing at Tab 5 of Exhibit 3, which records that there were 5 convictions against the Applicant under Section 90(3)(b) of the Act and 1 conviction against the Applicant under Section 90(3)(a) of the Act.

Officer Sadler referred to Tab 8, Exhibit 3, where there are copies of 27 Annual Inspection Certificates reportedly issued by Eli-Trans Ltd. and signed by the Applicant both as a representative of the licensee and as the inspecting mechanic, however there was no authorization in the records of Eli-Trans Ltd. which indicated that the Applicant had been appointed an agent to sign such certificates on behalf of the licensee.

Officer Sadler referred to a series of emails appearing at Tab 9, Exhibit 3, which were sent to him in his capacity as a Ministry of Transportation enforcement officer, the last of which is dated June 13, 2008. In the emails Officer Sadler was advised by Officer Corey Inman of the OPP truck unit of an accident that occurred in the Caledon area on or about June 2, 2008, between a dump truck and a school bus. The series of emails discloses that when the OPP truck unit inspected the dump truck it was found that the truck basically had no brakes and the driver could not produce an inspection report. There were concerns that the company that did the annual inspection of the truck did not conduct a thorough inspection. It was determined that the annual inspection certificate, No. H2210572, had been issued by Eli-Trans Ltd.

On July 18, 2008, Officer Sadler conducted a MVIS audit of Eli-Trans Ltd. and interviewed both the owner, Roza Seff, and the Applicant and when asked if either recalled issuing an inspection certificate H2210572 on a four axle dump truck on approximately April 5, 2008, the response was “not really”. When the parties were asked if they had a work order or paper work indicating any repairs or inspection for this vehicle, the answer was “no they did not”.

The witness referred to an incident documented at Tab 13, Exhibit 3, that occurred on January 22, 2009, when a dump truck bearing licence plate no. 94TO82 was inspected by Officer Kirk Goldthorp who noted that the preventive maintenance commercial vehicle inspection certificate (“PMCVIC”) No. H2210671 for the truck had expired in November 2008. At that time the owner/company was charged with failing to display what is described in section 85(1) of the Act as a “device” issued by the Ministry as evidence that the inspection requirements and performance standards prescribed by regulation had been complied with.

The same vehicle was stopped on January 27, 2009 by a different officer and it was noted that the vehicle had a new PMCVIC certificate, dated January 22, 2009, however when the vehicle was inspected it was found that the right side front axle lead suspension main spring was broken. It was considered by the inspecting officer to be a major defect and the vehicle was placed out of service and both the owner and the operator of the vehicle were charged under the Section 107(11) of the Act. The annual inspection certificate for this vehicle had been issued by Eli-Trans Ltd. on January 22, 2009 and signed by the Applicant both as the licensee and the inspecting mechanic. It was the opinion of the witness that based on the rust which was evident around the spring that the spring had not broken in the period between January 22 and 27, 2009.

Officer Sadler testified that, based on his inspections of Eli-Trans Ltd. and the two incidents referred to above, he believed that the Applicant was performing inspections offsite and possibly operating a mobile inspection station, both of which activities are contrary to the Act.

The Applicant testified that he was only acting as an inspection mechanic at Eli-Trans Ltd. and that the owner, Roza Seff, had on numerous occasions indicated that she had no interest in signing the annual inspection certificates and had therefore authorized the Applicant to sign on behalf of the licensee. The Applicant testified that the record keeping at the inspection station was very poor and that he had tried to keep control of the books and records of the certificates issued and supporting work orders but that it was difficult given the circumstances in the garage.

The Applicant testified that the mechanical work done in the garage was basically transmission work and other basic mechanical services. The Applicant stated that the owner of the garage and her husband were heavy smokers and that he did not want to be in the garage when they were there as he was allergic to cigarette smoke.

The Applicant testified that the records were in the station and that all that the necessary tools were, in fact, in place. The witness testified that he needed to have an inspection mechanic’s certificate as he was no longer able to work as a regular mechanic because he did not have the necessary training to work on the more sophisticated technologically advanced vehicles.

With respect to the dump truck and school bus incident, the Applicant stated that he remembered the event and suggested that the dump truck had burned out its breaks when it tried to stop under heavy a load. The witness stated that when he inspected the vehicle it was in fine condition. With respect to the incident of the dump truck with the broken main spring, the witness stated that the spring must have broken after the January 22, 2009, inspection.

In his testimony, the Applicant implied that he was not in the garage because of the effect of the owner’s smoking. However, on cross-examination, he stated that the owner and her husband stayed at the garage until late at night.

THE LAW

The law applicable to this matter is set forth in the following provisions of the Act.

Motor vehicle inspection mechanic

92 (1) No person shall sign a vehicle inspection record as mechanic or certify in a safety standards certificate that a vehicle complies with the standards of equipment and performance prescribed by the regulations unless the person is registered by the Director as a motor vehicle inspection mechanic in a motor vehicle inspection station and the Director may so register any person for whom application is made under subsection (2). R.S.O. 1990, c. H.8, s. 92 (1).

Registration

(2) Where a licensee or an applicant for a motor vehicle inspection station licence applies for the registration as a motor vehicle inspection mechanic in the motor vehicle inspection station of the licensee or in the proposed motor vehicle inspection station of the applicant for a licence, as the case may be, of any person who meets the requirements of this Act and the regulations, the person is entitled to be registered as a motor vehicle inspection mechanic in the motor vehicle inspection station. R.S.O. 1990, c. H.8, s. 92 (2).

Grounds for refusal

(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. R.S.O. 1990, c. H.8, s. 92 (4).

Proposal to refuse to issue or revoke licence or registration

95. (1) Where the Director proposes,

(a) to refuse to issue or renew a licence;

the Director shall serve notice of his or her proposal, together with written reasons therefor,

(d) in the case of a proposal to refuse to issue a licence, upon the applicant;

(e) in the case of a proposal to revoke or to refuse to renew a licence, upon the licensee;

(f) in the case of a proposal to refuse to make a registration, upon the applicant or licensee and upon the proposed registrant; and

(g) in the case of a proposal to revoke a registration, upon the registrant and the licensee of the motor vehicle inspection station in which the registrant is employed. R.S.O. 1990, c. H.8, s. 95 (1).

Power of Tribunal where hearing

(4) Where the applicant, licensee, registrant or proposed registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and shall hold the hearing and may by order direct the Director to carry out his or her proposal or refrain from carrying out his or her proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Director

ANAYLIS

It is clear from the evidence introduced by Officer Sadler, the Applicant was issuing inspection certificates without performing the proper inspections at a licensed motor vehicle inspection station. It is also clear that the Applicant was issuing and signing these certificates on behalf of the licensee when not properly authorized to do so.

The bald denials by the Applicant do not persuade the Tribunal that the position taken by the Respondent is incorrect. The Applicant’s position was not aided when he testified that he was not in the garage during the day because of the owner’s smoking implying that he was in the garage later only to subsequently state that the owner was in the garage until late in the evening. The conclusion to be drawn from this contradictory testimony is that the Applicant was not regularly in the garage during the day or the evening doing inspections.

The Respondent has established beyond the balance of probabilities that the past conduct of the Applicant affords reasonable grounds to believe that the Applicant will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity.

ORDER

The Tribunal hereby orders that the Respondent carry out the proposal as stated in the notice of proposal dated November 15, 2012, to refuse to register the Applicant as a motor vehicle inspection mechanic under the Act.

LICENCE APPEAL TRIBUNAL

E. Alan Garbe Vice-Chair

Released: March 13, 2013