Alexander Dagonas v. Registrar, Collection Agencies Act, 2013 CanLII 51149

Licence Appeal Tribunal

Date: 2013-07-29

File: 8017/CAA

Case Name: 8017 v. Registrar, Collection Agencies Act

Appeal under Section 8 of the Collection Agencies Act, R.S.O. 1990, c. C. 14, from a Notice of Proposal to refuse registration.

Alexander Dagonas Applicant

-and-

Registrar, Collection Agencies Act Respondent

ORDER

Adjudicator: D. Gregory Flude, Vice-Chair

Appearances:

For the Applicant: No-one appearing

For the Respondent: Rob Sidhu, Counsel

Heard in Toronto: July 22, 2013

ORDER

1The Applicant appealed the Notice of Proposal to Refuse Registration issued by the Registrar, Collection Agencies Act, R.S.O 1990 c. C-14 (the "Registrar" and the "Act" respectively). At the pre-hearing in this matter on May 28, 2013, in which the Applicant participated, the hearing was scheduled for July 22, 2013. The Applicant did not attend the hearing by 10:00 a.m., one half hour after the scheduled start time. The Tribunal satisfied itself that he had notice of the time and place for the hearing and therefore proceeded in his absence.

2The sole witness to testify was the Registrar, Gary DeMers. Mr. DeMers has a long history in law enforcement and regulation. He was a police officer for many years before becoming an investigator for the Provincial Government. Thereafter, he has acted as a registrar under various pieces of legislation. In particular, he has acted as the Registrar under the Act from 1998 to 2000 and again from January 2012 to the present.

3As Registrar, Mr. DeMers has responsibility for enforcement of the Act. His staff process applications and any problematic applications are brought to his attention. As a result, he has dealt with the Applicant's file and is familiar with it.

4The Applicant's application form (Ex. 5) was brought to Mr. DeMers attention following a criminal record check. Since it is a requirement for registration that registrants act in accordance with law and with integrity and honesty, the application form asks a number of questions about an applicant's background. Question 9 of the form asks:

Have you ever been convicted of an offence under any law of any province, territory, state or country, or are you currently subject of any charges?

The Applicant answered "No" to this question. Subsequent checking revealed that the Applicant was, at the time when he gave that answer, charged with two counts under the Criminal Code: uttering a death threat and threatening bodily harm (Ex. 4). Indeed, the Applicant had a first court appearance less than two weeks after he submitted the application form (Ex. 3).

5When the Applicant was asked to explain why he did not disclose the charges, he wrote a letter to the Registrar stating that he did not disclose the charges because he had not been convicted (Ex. 6). He has since embellished that explanation by stating in correspondence with the Tribunal that he did not understand the question and that he thought he would be acquitted on his first court appearance on March 11, 2013.

6The Registrar explained that his concern with registering the Applicant is that he has demonstrated in his dealing with the regulator that he cannot be honest. If he cannot be honest in his dealings with the regulator, the Registrar has no confidence that he will have the requisite integrity and honesty necessary to deal with the public at large while acting as a collection agent.

7S. 6 of the Act sets out the grounds upon which an application for registration may be denied. Applicants for registration are entitled to registration unless they fall within one of the exceptions. It is clear from the wording of the Act that the Registrar bears the onus of proving that an Applicant is subject to one of the exceptions. The Registrar relies on the exceptions found in ss. 6(1)(b) and (d):

Registration

6. (1) An applicant is entitled to registration or renewal of registration by the Registrar except where,

(b) the past conduct of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty; or

(d) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act or the regulations.

8No direct evidence was put before the Tribunal to indicate that the Applicant is involved in or is likely to be involved in an activity that will contravene the Act or regulations. It appeared to be the Registrar's position that, given concerns about the Applicant's honesty, the Tribunal may conclude that he would break the law when dealing with debtors. The Tribunal is of the view that this type of inference is addressed in s 6(1)(b) and that subsection (d) requires some specific behaviour to trigger its provisions. Accordingly, the Tribunal makes no finding under subsection 6(1)(d).

9With respect to subsection 6(1)(b), the Tribunal is satisfied that the Registrar has satisfied the onus of showing there are reasonable grounds for belief that the Applicant will not carry on business in accordance with law and with integrity and honesty. The application form is a first test of integrity. The Registrar bases registration decisions on information set out in the form. To mislead the Registrar, as happened in this case, raises concerns about future honesty and integrity of the Applicant. The Applicant was not available to testify so the Tribunal's concerns were not allayed by hearing the Applicant's version of events. The Tribunal is satisfied that question 9 on the application form is not ambiguous. Any ambiguity the Applicant felt should have been resolved by greater disclosure, not lesser. Failure to make this disclosure during the period when he was preparing for his first court appearance indicates a deliberate attempt to mislead.

Order

10In accordance with the authority invested in it by the provisions of s.8(4) of the Act, the Tribunal orders the Registrar to carry out the proposal to refuse registration to the Applicant.