Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-04-22
FILE: 8231/MVDA
CASE NAME: 8231 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 July 16, 2013 to Revoke Registrations
Switzer Motors Ltd, Robert Switzer, Sarah Amaral Applicants
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
CONSENT ORDER
CONSENT ORDER
Upon the application to the Tribunal by Switzer Motors Ltd, Robert Switzer, and Sarah Amaral, 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: April 22, 2014
SCHEDULE "A"
TO: Licence Appeal Tribunal 530 - 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: Switzer Motors Ltd., Robert Switzer and Sarah Amaral c/o Symon Zucker, Danson & Zucker 701-375 University Avenue Toronto, ON M5G 2J5
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (the “Act”), Switzer Motors Ltd., Robert Switzer and Sarah Amaral (the “Registrants”), 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 Registrant’s acknowledge that "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.
The Registrants will require that all personnel, agents, assignees or anyone acting on behalf of Switzer Motors Ltd. (the “Dealer”) to trade in motor vehicles shall be registered as a salesperson to the Dealer.
The Registrants will maintain a formal process to track and resolve consumer complaints, and advise OMVIC within thirty (30) days of initial receipt of consumer complaint of any unresolved consumer complaints.
The Registrants acknowledge that they are jointly and severally under a positive obligation to review their bills of sale and instruct all salespersons that optional charges to the bill of sale must be accurately and clearly described and noted in accordance with the MVDA, the Consumer Protection Act, 2002 (the "CPA"), the Sale of Goods Act (the "SGA"). The customer will be given an opportunity to waive charges not mandated by law,
The Registrants agree that they will immediately provide a complete and full refund of a customer’s deposit upon demand in every situation where the customer does not receive a signed duplicate of their bill of at the time the agreement is entered into in accordance with the MVDA.
The Registrants shall not demand payment or make any representation that a customer is required to make payment in respect of any unsolicited and/or optional goods or services except as permitted under the MVDA, CPA, or SGA.
The Registrants shall provide the Registrar with written particulars of any customer complaints the dealer is unable to resolve within thirty (30) days after being contacted by the complainant. Particulars will include the name and contact information of the complainant, the nature of the complaint and the steps taken by the dealer to resolve the complaint.
The Registrants will ensure that they and all salespersons, when dealing with customers, are clear and truthful in describing vehicle features, benefits, prices and in explaining products, programs and charges.
The Registrants agree that they and all personnel, agents, assignees or anyone acting on behalf of the Dealers to trade in motor vehicles, will respond promptly, honestly and courteously to all customer inquiries and complaints.
The Registrants will advise all personnel, agents, assignees or anyone acting on behalf of the Dealers to trade in motor vehicles, will cooperate in a prompt manner with representatives of the Registrar carrying out the Registrar’s administrative activities.
The Registrants will comply with the Code of Ethics and OMVIC’s Standards of Business Practices, as may be amended from time to time.
The Registrants will comply with the CPA. Without limiting the generality of the foregoing, the Registrants will not collect any funds or assets towards the purchase or lease of a vehicle unless the customer has been provided with full disclosure of any applicable financing or leasing terms in accordance with the MVDA or CPA. The Registrants further acknowledge that if they are not able to provide financing or leasing at the agreed upon previous terms, the customer will be advised of other options to purchase, lease or finance or offered a refund of their deposit.
The Registrants agree to maintain a written record of any repairs or reconditioning done to their vehicles including, but not limited to, work orders, invoices and diagnostic reports.
The Registrants will ensure that all personnel, agents, assignees or anyone acting on behalf of the Registrant are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.
The Registrants will comply with section 14 of the MVDA, 2002 and specifically acknowledge that they are responsible for providing information requested by the Registrar in relation to any complaint within five (5) days. The Registrants further agree to reply, in writing, to any written request for further information or material to be submitted to the Registrar within a reasonable period of time.
The Registrants specifically acknowledge that they are under a positive obligation to comply with section 47 of the MVDA, 2002, O. Reg. 333/08 with respect to the sale of extended warranties.
The Registrants will disclose all material facts about the motor vehicles for purchase or lease to its customers. The Registrant further agrees that notwithstanding whether or not the Registrant considers a fact to be material, the Registrant will comply with the disclosure obligation. The Registrant further agrees to disclose all material facts on the Bill of Sale, in writing. The Registrant will ensure compliance with the disclosure obligation notwithstanding whether or not the vehicle has been branded through MTO. For greater certainty, a material fact is one that if disclosed could affect the decision of a reasonable person to purchase or lease the vehicle. In the case of damaged vehicles, the Registrant further agrees to disclose as much detail as possible regarding the nature and severity of the damage. The Registrant undertakes to research the history of all the motor vehicles under trade to ensure all material facts are disclosed.
The Registrants will comply with all requests made by the Registrar in relation to any failure to comply with disclosure obligations. Further, where the Registrar considers any information to be a material fact, the Registrant will provide good faith and fair compensation to a purchaser concerning a motor vehicle under trade in a timely fashion.
The Registrants will maintain all books and records at the Registrant's registered premises in accordance with the MVDA and Ontario Regulation 333/08.
The Registrants will undertake to ensure that all vehicles sold will be registered in the name of the purchaser in the records of the MTO before releasing the vehicle to the purchaser.
The Registrants will ensure that all trades in motor vehicles are completed in accordance with section 30 of the MVDA and pursuant to sections 39, 40, 41, 42 and 43 of Ontario Regulation 333/08 and section 4 of Ontario Regulation 332/08, where applicable.
That Robert Switzer and Sarah Amaral agree to immediately enroll in the Ontario Motor Vehicle Industry Council's Automotive Certification Course (“Certification Course”) and to be responsible for all fees in relation to enrolment. Robert Switzer and Sarah Amaral further agree to pass the Certification Course within sixty (60) days of entering into these Terms and Conditions of Registration.
Robert Switzer and Sarah Amaral agree to immediately enroll in the Georgian College Automotive Record Keeping Course within sixty (60) days, and the Georgian College MVDA 2002 Key Elements Course (the “Continuing Education Courses”) within sixty (60) days of the course being made available, and to be responsible for all fees in relation to enrolment. Robert Switzer and Sarah Amaral further agree to complete pass these courses without delay.
Switzer Motors Ltd. agrees to ensure that all salespersons will be immediately enrolled in the Ontario Motor Vehicle Industry Council's Automotive Certification Course. The Registrant will be responsible for all fees in relation to enrolment for all current salespersons.
The Registrants will ensure that the registration will not be used to trade in motor vehicles where the Registrant knows, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.
The Registrants agrees to accept full responsibility for the quality of any repairs or alterations to a motor vehicle completed by the Registrant’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Registrant.
The Registrants acknowledge that the Registrar may take further administrative action, including a proposal to revoke its registration, arising from any matters that have occurred, or may occur, relating to honesty, integrity or financial position.
The Registrants acknowledge that they have obtained, or have had the opportunity to obtain, independent legal advice with respect to their consent on the Terms and Conditions set out herein.
Signed in the City of this day of 2014.
(Signature) Robert SWITZER
(Signature) Sarah Amaral
(Signature)
SWITZER MOTORS LTD.
I have authority to bind the dealership
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date:
Carl Compton