Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-03-19
FILE:
8499/MVDA
CASE NAME:
8499 v. Registrar, Motor Vehicle Dealers Act, 2002
Appeal from a Proposal of the Registrar under The Motor Vehicle Dealers Act, 2002 S.O. 2002, C. 30, Sch. B to Suspend a Registration
Axcel Auto Group Inc. o/a Mountain Mazda
and Peter M. Pickering
Applicants
-and-
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicants:
David Levangie, Counsel
For the Respondent:
Jane Samler, Counsel
Heard in Toronto:
March 14, 2014
Reasons for Decision – Motion for Further Documentary Disclosure
1The Applicants bring this motion before the Licence Appeal Tribunal for an order requiring the Registrar to provide further disclosure with other relief including an adjournment of the hearing. The issue of an adjournment was deferred to be dealt with at a teleconference hearing on March 21, 2014 following the release of these reasons. The Registrar resists the motion on the ground that it has disclosed all relevant documents. It is necessary to review the allegations in both the Notice of Proposal and the Notice of Appeal to establish a backdrop for the position of the Parties in the motion. In doing so, the Tribunal is specifically not making findings of fact about any particular allegation. It is merely identifying the issues in the appeal to focus the submissions made in the motion. Further, while the discussion will focus on disclosure, nothing in this decision addresses disclosure of evidence that is privileged under the law.
2The Notice of Proposal that initiated this appeal is dated November 29, 2013. It seeks a suspension of the Applicants’ registrations for actions arising out of one motor vehicle transaction dating back to July 28, 2010. In that transaction, a consumer purchased a motor vehicle from a now defunct dealer, Dave White Auto Sales. The corporate applicant had transferred the vehicle to Dave White Auto Sales and had not been paid. When Dave White Auto Sales went into receivership in or around August, 2010, the corporate applicant filed a lien against the vehicle. The consumer complained to OMVIC, the office of the Registrar under the Act, and between September and November 2012 OMVIC attempted to mediate the complaint. The corporate applicant asserted its right to maintain a lien and the Notice of Proposal to Suspend was issued in November 2013.
3The Applicants’ Notice of Appeal points to the history of the vehicle registration around the time of the sale. It appears that the vehicle was transferred to the consumer, back to Dave White Auto Sales and back to the consumer through August and September 2010. The Corporate Applicant’s lien was filed on the vehicle when it was registered to Dave White Auto Sales in September 2010. The Applicants also question the right of OMVIC to elevate a genuine dispute over the legality of a lien into disciplinary action, especially in light of a possible transfer of the vehicle without consideration. Finally, the Applicants question why it took the consumer two years to complain and the Registrar a further year to issue the Notice of Proposal. They assert as positive defences expiration of limitation periods, laches and acquiescence.
4The Tribunal’s Rules of Practice address the disclosure obligations of parties in Rule 6. Specifically, Rules 6.3 and 6.6 state:
6.3 Except for the report of an expert witness to which Rule 6.4 applies or expedited hearings to which Rule 6.5 applies, a party to a hearing at least 10 business days before the pre-hearing, if one is scheduled, or the hearing shall:
a) disclose to all other parties the existence of every document and thing that the party will refer to or tender as evidence at the hearing,
b) deliver a copy of such documents to the other parties, including those documents or things intended to be used or which might reasonably be anticipated to be used solely for the purpose of cross-examination of another party or another party’s witness, and
c) disclose and make available for inspection the existence of all things other than documents that the party will refer to or tender as evidence at the hearing.
6.6 The Tribunal may at any stage of the proceeding order a party:
(1) to disclose to any other party the existence of all documents and things that party will refer to or tender as evidence at the hearing;
(2) to deliver to the other party at least ten days before the hearing or as otherwise ordered by the Tribunal copies of all documents that the party will produce or tender as evidence at the hearing; and
(3) to make available for inspection or make available for testing subject to terms and conditions established by the Tribunal, any thing, other than a document, that party will produce or tender as evidence at the hearing.
5A reading of Rule 6.3 would appear to be fatal to the Applicants’ position. The obligation under the rule is to disclose only those documents a party intends to rely on at the hearing. There are consequences in Rule 6.7 for failing to disclose documents. A party may not rely on undisclosed documents at the hearing without the consent of the Tribunal.
6If Rule 6.3 does not give the Tribunal the authority to order further disclosure, where might that authority be found. The Applicants argue that the provisions of s. 5.4 of the Statutory Powers Procedure Act, R. S. O. 1990 c. 22 extend the Tribunal’s disclosure rules and are the source of that authority. That section states:
5.4(1)If the tribunal’s rules made under section 25.1 deal with disclosure, the tribunal may, at any stage of the proceeding before all hearings are complete, make orders for,
(a) the exchange of documents;
(b) the oral or written examination of a party;
(c) the exchange of witness statements and reports of expert witnesses;
(d) the provision of particulars;
(e) any other form of disclosure.
Other Acts and regulations
(1.1)The tribunal’s power to make orders for disclosure is subject to any other Act or regulation that applies to the proceeding.
Exception, privileged information
(2)Subsection (1) does not authorize the making of an order requiring disclosure of privileged information.
6In the Applicant’s submission, s. 5.4 above has a substantive effect. According to the Applicants, once a Tribunal makes rules about disclosure, it is then free to make an order for disclosure in accordance with this section unfettered by any limitation in its own rules. This interpretation found favour before this Tribunal in Alexandre Alves – Motion, decision released on August 18, 2010. At page 7 of the decision, Vice-Chair Weary sums up the expansive approach to s. 5.4 as follows:
In s. 6.3 of the Tribunal’s Rules of Practice disclosure requirements are limited to those documents and materials upon which a party intends to rely for evidence. By virtue of Rule 6.6, the Tribunal is able to make additional orders for similarly intended material at any time during the hearing process as and when such become relevant to a party in presenting its case. Given that the Tribunal has established such material disclosure obligations for parties who appear before it, section 5.4 of the Statutory Powers Procedure Act authorizes this Tribunal to provide additional disclosure orders, the only exception being that for documents or records subject to privilege.
6In 5505-ONHWPA-CLAIM-DISCLOSURE MOTION, O.L.A.T. decision released on November 20, 2009, the Tribunal reviewed the interplay of Rule 6 and s. 5.4.and found that a restrictive approach best reflected the legislative intent. The Tribunal stated at page 5:
Rather, it is the Tribunal’s view, that the proper interpretation of this paragraph is that s. 5.4(1) works in concert with the Tribunal’s Rules to provide the statutory authority to enforce the Rules regarding disclosure. It does not extend the Rules. Read as a whole, it is clear that s. 5.4(1) is subject to the rules made by the applicable tribunal. To accept the Applicant’s interpretation is to render nugatory the limiting language in the opening clause “If the tribunal’s rules made under section 25.1 deal with disclosure.” If it had been the intent of the Legislature to provide broad disclosure powers it was a simple step to set such powers out in the Act without limitation.
With the greatest respect to those who hold a contrary view, the Tribunal finds the reasoning in 5505 to be persuasive. Section 5.4 does not expand the authority to compel further disclosure, it merely provides the statutory power to make orders in accordance with the Tribunal’s rules.
7The Applicants argue that the Tribunal’s disclosure rules have been overtaken and surpassed by recent developments of the common law arising out of the decision of the Supreme Court of Canada in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326. In Stinchcombe the Crown was in possession of witness interviews that were supportive of the accused’s defence. At trial the defence counsel asked the trial judge for disclosure of the evidence in the face of the Crown’s refusal to provide the evidence to the defence or to call the witness who made the statements. The trial judge ruled against the defence and the matter was appealed, ultimately to the Supreme Court of Canada. In ordering disclosure, Sopinka J. noted:
It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. states, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.
8There are certainly parallels between the role of the Crown in a criminal prosecution and the role of the Registrar in proceedings before the Tribunal. The Registrar holds a statutory office for the purpose of ensuring that the public can repose confidence when dealing with motor vehicle dealers and salespersons. The Registrar has extensive investigative powers and registrants are under a statutory obligation to cooperate with the investigation. Should that investigation uncover behaviour of concern to the Registrar, the Registrar is under a duty to set out those concerns as allegations in a notice of proposal. A registrant in receipt of a notice of proposal may decide not to appeal and may then suffer serious regulatory consequences including loss of livelihood or loss of a significant business investment. Should the registrant decide to appeal to this Tribunal, the Registrar becomes, in essence, the prosecutor. The Tribunal echoes the views of Rand J. that in the exercise of the public duty, it is the role of the Registrar to ensure that all relevant facts come before the Tribunal such that the Tribunal may ensure that justice is done.
9The Tribunal’s view that the Stinchcombe analysis applies in administrative law proceedings involving questions of livelihood and personal reputation is supported by the decision of the Federal Court of Appeal in Sheriff v. Canada (Attorney General), 2006 FCA 139, [2007] 1 FCR 3 where the court distinguished the earlier decision of the Supreme Court of Canada in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 SCR 809. May held that a purely administrative decision to move inmates from a minimum to a medium security institution did not attract Stinchcombe disclosure. The court held:
- It is important to bear in mind that the Stinchcombe principles were enunciated in the particular context of criminal proceedings where the innocence of the accused was at stake. Given the severity of the potential consequences the appropriate level of disclosure was quite high. In these cases, the impugned decisions are purely administrative. These cases do not involve a criminal trial and innocence is not at stake. The Stinchcombe principles do not apply in the administrative context.
10In addressing what would appear to be a blanket statement that Stinchcombe does not apply in an administrative law context, Malone J.A. stated:
[29]While the Court is unequivocal in stating that “[t]he Stinchcombe principles do not apply in the administrative context,” it clearly is not referring to a licensing review hearing, where a loss of livelihood and damage to professional reputation are at stake. In contrast, in the present appeal, the innocence, i.e. the reputation of the Trustees, is under review. Accordingly, I would classify a review of a trustee in bankruptcy’s licence by the OSB as an exception to the rule established in May...
[32]The requirement for increased disclosure is justified by the significant consequences for the professional person’s career and status in the community. Some Courts have noted that a finding of professional misconduct may be more serious than a criminal conviction (see Howe v. Institute of Chartered Accountants of Ontario 1994 CanLII 3360 (ON CA), (1994), 19 O.R. (3d) 483 (C.A.), per Laskin J.A. in dissent, at pages 495‑496; Re Emerson and Law Society of Upper Canada 1983 CanLII 1776 (ON SC), (1983), 44 O.R. (2d) 729 (H.C.J.), at page 744).
11The above analysis supports the proposition that the Registrar is under an obligation to make greater disclosure than the limited disclosure obligations set out in Rule 6.3 in appeals involving the suspension or revocation of registration. This obligation flows from the dire consequences of the outcome of the hearing to the applicant. The extent of such disclosure, set out by Malone J.A. in Sheriff, is that documents that are clearly irrelevant may be excluded:
[34]In this case, the Trustees face a suspension of their licence and injury to their professional reputation. In order to fully understand the case against them and to ensure a fair disciplinary proceeding, the Trustees must have access to all relevant material which may assist them. This is consistent with the Superintendent’s earlier ruling in this case that the SDA had a duty to disclose all documents unless they were “clearly irrelevant.”
12To be fair to the Registrar, the Registrar has submitted that all relevant documents have been disclosed. Ms Samler has undertaken to approach staff who were involved in dealing with the Applicants and determine if any documents relating to the proceedings may have been misdirected. She explained to the Tribunal that OMVIC records all documents electronically. Although it is unlikely, documents attached to emails may not have been posted by staff to the electronic system. She will ask the staff to review their emails and ensure that all documents have been properly posted. She will then forward any documents that may turn up.
13The Applicants submit that the Registrar should not act as the filter in determining relevance. It is their submission that they should be permitted access to OMVIC’s records to review them for themselves in the belief that there might be relevant documents, especially with respect to documents relating to the delay in issuing the Notice of Proposal. With respect to the insolvency of Dave White Auto Sales, they wish to see unredacted investigation notes. Ms Samler advised the Tribunal that the redactions relate to dealings between Dave White Auto Sales and other dealers and consumers and do not relate to the impugned transaction in this case.
14The question now posed by the Applicants was before the court in Stinchcombe. It was resolved by Sopinka J. as follows:
While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate "the wheat from the chaff" must therefore rest with Crown counsel.
By analogy, it is the Registrar’s counsel who must decide on the scope of disclosure in the knowledge that there may be serious consequences for willful non-disclosure. As she reviews the Registrar’s files she must err on the side of inclusion but need not disclose anything that is clearly irrelevant or that is subject to solicitor/client or litigation privilege.
15The Applicants also seek the names and last known addresses of any former employees of the Registrar who may have dealt with this matter. This request goes far beyond the Stinchcombe principles. In Stinchcombe, the identity of the witness was known. In fact, she had refused to speak to the defence counsel. It was the transcript of her interview with police that was in issue. In Sheriff, what was at issue was a document, a report. Stinchcombe cannot assist the Applicants in getting names and addresses. The Applicants’ reasoning was that one of the former employees may have relevant information. To order the requested relief, the Tribunal would need to deal in more than conjecture. Notes relevant to the case by any and all employees should be found in OMVIC’s electronic database and, in accordance with Ms Samler’s undertaking above, either have been or may be disclosed to the Applicants. Should more concrete grounds for a more focused disclosure request arise in the future, counsel may raise it with the Tribunal.
16In conclusion, the Tribunal finds that in proceedings before this Tribunal dealing with the suspension or revocation of a registration, the Stinchcombe disclosure rules apply. Counsel for the Registrar will review her file and disclose any relevant documents not already disclosed over which privilege is not asserted. Counsel shall err on the side of inclusion but need not disclose any clearly irrelevant documents. The balance of the Applicants’ motion is dismissed.
LICENCE APPEAL TRIBUNAL
__________________________
D. Gregory Flude, Vice Chair
Released on: March 19, 2014