Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 7991/MVDA
CASE NAME: 7991 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 March 12, 2013 to Refuse and Revoke Registrations
Ahmed Elbasiouni and VD Auto Trader Inc. Applicants
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
CONSENT ORDER
Upon the application to the Tribunal by Ahmed Elbasiouni and VD Auto Trader Inc., 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: June 28, 2013
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: VD Auto Trader Inc. 443 Centre Street Brampton, ON L6V 3L7
AND FROM: Ahmed Elbasiouni c/o VD Auto Trader Inc. 443 Centre Street Brampton, ON L6V 3L7
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 VD Auto Trader Inc. (the “Dealer”), Ahmed Elbasiouni (the “Applicant”) 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 agrees that for a period of two [2] years from the date of this Order, it shall only be registered as a dealer within the “Wholesaler” class of registration as defined by Ontario Regulation 333/08.
The Dealer further acknowledges that while registered as a “Wholesaler” it is restricted to trading in motor vehicles with other registered motor vehicle dealers in accordance with section 21 of Ontario Regulation 333/08.
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 and the Applicant 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 Applicant 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 and the Applicant 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 and the Applicant 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 and the Applicant agree they will not be involved with the buying, selling or leasing of motor vehicles without the benefit of registration.
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
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.
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.
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 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
The Dealer agrees to maintain a sign at the Dealer's registered premise that is visible to the public.
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.
Disclosure
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 it sells or leases to its 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.
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.
The Dealer and the Applicant agree that all contracts for trades will comply with sections 40 to 45 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 that are completed by the Dealer’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Dealer.
The Dealer and the Applicant agree to provide the Registrar with written notice, within 5 days, of any substantive changes to their business plan.
The Dealer and the Applicant agree to comply with any requests for information received from the Registrar’s office in the form and within the time period specified by the Registrar or his representative(s).
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 agrees to maintain a bank account in accordance with section 59 of Ontario Regulation 333/08.
The Dealer agrees to maintain a trust account, in respect of any deposits made in excess of $10,000.00 or any funds in relation to motor vehicles sold on consignment, if applicable.
The Dealer further agrees that should a trust account be opened, it shall maintain its trust account in accordance with section 58 of Ontario Regulation 333/08 under the Motor Vehicle Dealers Act, 2002.
The Dealer agrees that should a trust account be opened, the Dealer shall provide written confirmation to the Registrar that a trust account has been established in the Dealer’s name at its financial/banking institution within 5 days of establishing same.
The Dealer further agrees to notify the Registrar of its bank 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 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, if applicable.
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
The Dealer and the Applicant understand that the Registrar is relying on the accuracy and completeness of all documents, statements or information provided by them in support of their applications for registration. The Dealer and the Applicant confirm that all documents, information or statements provided to the Registrar are true to the best of the Dealer's, and the Applicant’s knowledge and belief and that the Dealer and the Applicant have given full answers to all questions and requests made by the Registrar in connection with their applications.
The Dealer and the Applicant 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 and the Applicant acknowledge that they have taken the time to carefully review these terms and conditions, and, by signing and initialling, acknowledge that they understands their significance and agree to abide by them.
The Dealer and the Applicant hereby consent to an Order of the Licence Appeal Tribunal, which may include the terms and conditions set out herein.
The Dealer and the Applicant 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 2013.
Ahmed Elbasiouni (signature)
I have the authority to bind the corporation, VD Auto Trader Inc.
Ahmed Elbasiouni (signature)
Applicant
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date:
Carl Compton