Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-29

FILE:

8332/GAR

CASE NAME:

8332 v. Director of Vehicle Inspection Standards

Appeal from a Notice of Proposal of the Director of Vehicle Inspection Standards under the Highway Traffic Act, R.S.O. 1990, c. H.8 - to Refuse to Issue a Motor Vehicle Inspection Station Licence and to Refuse to Issue a Motor Vehicle Inspection Station Mechanic’s Registration

Herbert G. Gale dba Eagle Sales & Service and Herbert G. Gale

Appellants

-and-

Director of Vehicle Inspection Standards

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Elizabeth Sproule, Vice-Chair

APPEARANCES:

For the Appellants:

James F. Lee, Paralegal

For the Respondent:

Ryan DeFaria, Counsel

Heard in Kitchener:

April 30, 2014

DECISON AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by Herbert G. Gale dba Eagle Sales & Service and Herbert G. Gale (collectively referred to as the “Appellant”) respecting a Notice by the Director of Vehicle Inspection Standards (the “Director”) to:

a) refuse to issue a Motor Vehicle Inspection Station Licence to Herbert G. Gale dba Eagle Sales & Service, and

b) refuse to register Herbert G. Gale as a Motor Vehicle Inspection Mechanic.

EVIDENCE

The evidence of the Director consisted of documentation and the testimony of Ron Kirkconnell. The evidence of the Appellant consisted of one document and his own testimony.

Mr. Kirkconnell has been a vehicle inspector/enforcement officer with the Ministry of Transportation of Ontario (“MTO”) since 1987. He deals with Motor Vehicle Inspection Stations (“MVIS”) in the Huron and Perth area, and was specifically involved with the matters relating to the Appellant. The Appellant made an application for an address change of his station on June 11, 2013, and as a result of various past concerns a “Review Request” was made by the Director in August of 2013. This review was conducted by Mr. Kirkconnell.

Mr. Kirkconnell provided information as to the Appellant’s convictions registered on the MVIS record.

In 2003, the Appellant was charged with making a false statement in a safety standards certificate, an offence under s. 99(2) of the Highway Traffic Act (the “Act”). A field inspection carried out by an MTO officer on a 1988 Cube Van on April 14, 2003, revealed that there was a hole behind the driver’s seat, contrary to O. Reg. 611, Schedule 1.(4)(b). The Appellant had issued a Safety Standards Certificate for the vehicle. The Appellant pled guilty and was convicted on February 6, 2004 and fined. In these proceedings, the Appellant did not deny that he had missed the defect.

In 2006, the Appellant was charged with 60 counts of failing to keep a copy of a Safety Standards Certificate for one year from the date of issue. The Appellant pled guilty on June 26, 2007. The Appellant testified that his records, and tools, had been moved from his place of business by a relative at the request of the owner of the property where he operated, (also a relative), while he had been absent (incarcerated in fact). Some records went missing during this process which he did not discover until sometime later.

In 2012, the Appellant was charged under s. 99(1) for failing to affix a Periodic Mandatory Commercial Vehicle Inspection (“PMCVI”) sticker upon the completion of an inspection.

This charge arose from an MTO inspection of a commercial vehicle on October 29, 2012. The vehicle’s right rear turn signal was out. The driver handed the inspector the sticker which the Appellant had provided to him. It is required by regulation that the inspecting mechanic affix the PMCVI sticker to the vehicle. As the Appellant had not done this, the driver filed a complaint and this led to the charge which the Appellant pled guilty to, and was convicted of, on May 28, 2013. (The Director in his notice incorrectly described the offence as failing to remove an annual inspection sticker).

The Appellant’s business has been subject to a number of audits. The most recent was April 24, 2013. With respect to equipment, the Audit Report indicates one unsatisfactory item: the Appellant had a Standard Ammco 8500 Gauge for measuring brake drums and that needed to be upgraded. Mr. Kirkconnell acknowledged that the objection to the tool that the Appellant had for measuring brake drums was that it did not read to a 1000’s of an inch. He also acknowledged that the applicable regulation does not specify that this is a requirement; rather the requirement is for a tool adequate for measuring brake drums.

It was the Appellant’s evidence that he immediately went out and purchased an upgraded brake drum measuring device when advised that his measurement tool was not viewed as adequate.

The Audit Report of April 24, 2013, also indicates that the Appellant’s records were not being adequately kept, there were no work orders or list of defects and repairs for any of the SSCs and PMCVIs issued. Following this audit, the Appellant was charged with 50 counts of failing to keep a copy of the records, etc., required to be kept for one year with respect to SSCs as prescribed by Regulation 601, section 10(b) and contrary to section 99(1) of the Act. On April 22, 2014, the Appellant pled guilty to 25 counts and 25 counts were withdrawn. He was fined $5,000 with 12 months to pay.

The Audit Report of August 11, 2010, indicates that at that time, the Appellant’s equipment on hand was satisfactory. The record keeping however was noted as deficient, as work orders and/or lists of repairs were not being maintained for the SSCs being issued. The Appellant was asked at that time if he had any lists of defects and repairs for the SSCs and he indicated he did in “rough note books”.

The Audit Report of April 14, 2009, indicates that the Appellant’s equipment, described as “Headlight Aim Tester”, was unsatisfactory as it was not current. In cross-examination, Mr. Kirkconnell was unable to indicate when the new style of headlights came out. With respect to the Appellant’s records being kept at that time, there is a notation in the Audit Report that work orders were removed that pertained to the SSCs and PMCVIs to be photocopied and audited. There is no indication of problems found with the documentation in this Audit Report.

In cross-examination, Mr. Kirkconnell confirmed that the original MVIS station was licensed in 1999, and up until 2003, there had been one charge against the Appellant related to safety (as described above). Between 2003 and 2013 there were no charges pertaining to vehicle defects.

The Tribunal noted that the Appellant has a number of convictions between 1979 and 2012, under the Narcotic Control Act, Criminal Code and Controlled Drugs and Substances Act. It was the Appellant’s evidence that these convictions all relate to his long struggle with substance abuse. The Tribunal accepts this evidence, which was not challenged. As a result of these convictions, the Appellant had his driver’s licence suspended for life and has been incarcerated more than once.

The Appellant testified that he had been the sole caregiver for his mother, who suffered from Alzheimer’s, for a number of years prior to her going into long-term care in June of 2013. He acknowledged that during this time, he had “let the paperwork go”. He further testified that he is a good mechanic, however, he has never been good at paperwork. He recognizes that he lacks administrative skills and has hired a full time bookkeeper who has training in business administration to ensure that the proper documentation is kept. At the time of this hearing, said bookkeeper had been employed for about four months. This individual, along with others, also assist the Appellant with test driving.

It was the Appellant’s evidence that he has had a long struggle with addiction but has sought treatment and has been sober for approximately nine months. He is continuing with counseling. It was also his evidence that, given the dangerous nature of his work and the potential for injury, he did not work impaired.

Although the Director had not included outstanding fines as grounds for the refusals, the Appellant testified that he did owe a significant amount of fines but noted that he has made arrangements for the repayment of the amount owing. The Appellant provided a copy of an acknowledgement setting out the total owing and the monthly amount he has agreed to pay. It was the Appellant’s evidence that he is now motivated to repay the fines as there is a possibility in a few years that he may be given his driver’s licence back and he sees a light at the end of the tunnel.

ISSUES

Does the past conduct of the Appellant afford reasonable grounds for the belief that the Appellant will not operate in accordance with the law and with honesty and integrity?

LAW

The following are the relevant sections of the Act:

91. (3) Subject to section 95, the Director may refuse to issue a motor vehicle inspection station licence where, in his or her opinion,

(a) the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors affords reasonable grounds for belief that the motor vehicle inspection station will not be operated in accordance with the law and with honesty and integrity;

92. (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;

APPLICATION OF THE LAW TO FACTS

The grounds for the refusal of the Appellant’s MVIS licence and his MVIS mechanic registration as set out in the August 26, 2013 Notice, and as presented before the Tribunal, do not involve the Appellant’s competence as either a mechanic or as an operator of a MVIS.

The issue for the Tribunal to determine is whether his conduct affords reasonable grounds for belief that he will not act or operate his station in accordance with the law and with honesty and integrity.

The Tribunal found the Appellant’s testimony to be forthright and honest. His explanations of his behaviour and events that occurred were believable and did not conflict with the evidence of the Director in any way. The Appellant has a record of convictions, provincial and criminal, however, given the nature of the offences, the Tribunal does not find that they afford reasonable grounds for belief that the Appellant will not act or operate his business in accordance with the law or with honesty and integrity.

The evidence before the Tribunal is that the Appellant has not consistently met the standard required in documenting the work he completes. The Appellant is operating in a highly regulated industry and by asking to be licensed as either a MVIS or a MVIS mechanic, he is agreeing to comply with the various regulations under the Act that govern those activities. To ensure that only safe vehicles are put on the road, the MTO must be able to monitor its registrants and it does this by requiring certain records to be kept so that they may be reviewed. The Appellant’s past conduct would suggest that he has not been reliably compliant in this regard. To address this issue, the Appellant has hired a full time bookkeeper who he anticipates will ensure that his notes of work done on vehicles gets translated into the required work orders and that all of the other necessary documentation will be completed and retained.

The Appellant has asked that he be given another opportunity to operate, having taken steps to address the non-compliance issues that have led to this refusal. The Tribunal is inclined to grant this second chance at this time. The evidence of the Appellant’s past conduct, in its totality, does not, in the Tribunal’s opinion, provide reasonable grounds for belief that the Appellant will not operate in accordance with the law and with honesty and integrity. Should the Appellant’s involvement of additional personnel to oversee proper record keeping not lead to regulatory compliance, the granting of another chance would be unlikely.

ORDER

Pursuant to the authority vested in it under the Act, the Tribunal orders the Director to issue a Motor Vehicle Inspection Station licence to Herbert G. Gale dba Eagle Sales & Service and to register him as a Motor Vehicle Inspection Station mechanic.

LICENCE APPEAL TRIBUNAL

Elizabeth Sproule, Vice-Chair

Released: May 29, 2014