Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 8657/MVDA
CASE NAME: 8657 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 - to Revoke Registration
Mirramin Kamali-Mafroujaki o/a Top Quality Auto Sales
Appellant
-and-
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellant: Aaron B. Harnett, Counsel
For the Respondent: Michael Rusek, Counsel
Heard in Toronto: July 8, 2014
REASONS FOR DECISION AND ORDER
This hearing arises from an appeal by Mr. Kamali-Mafroujaki o/a Top Quality Auto Sales to the Licence Appeal Tribunal (the “Tribunal”) from a Notice of Proposal issued by the Registrar, Motor Vehicle Dealers Act, 2002 (the “Registrar”), which proposes to revoke the registration of Mr. Kamali-Mafroujaki as a dealer under the Motor Vehicle Dealers Act, 2002 (the “Act”).
FACTS
Mr. Kamali-Mafroujaki was registered as a motor vehicle dealer in 2001. He is the sole proprietor of a wholesale dealership. As such, he does not deal with end consumers but with other dealers. The first ten years of his business were conducted without incident. In July 2011, Mr. Kamali-Mafroujaki was visiting a dealership to inspect a car when he engaged in conduct that led to his being charged and ultimately convicted of sexual assault on an employee of the dealership. Mr. Kamali-Mafroujaki denies any wrongdoing and is appealing the conviction.
In the reasons for judgment in the Ontario Court of Justice, Mr. Justice Armstrong characterized the issue as one of credibility and reliability. After reviewing Mr. Kamali-Mafroujaki’s testimony, Mr. Justice Armstrong concluded “I had difficulties with your evidence, sir, which led me to conclude that your version of events was improbable, not worthy of belief, and unreliable”. By contrast, Mr. Justice Armstrong was impressed with the evidence of both the victim and the dealer who employed her and accepted it in totality.
The Judge found the following as fact. Mr. Kamali-Mafroujaki asked a female motor vehicle salesperson to join him on a car lot to look at a used car. Mr. Kamali-Mafroujaki complimented the woman on her eyes and then asked her some personal questions, which she declined to answer. Mr. Kamali-Mafroujaki asked the woman to dinner three times and she refused. He then grabbed the woman by the arm, pulled her towards him and tried to kiss her on the lips. She turned her face whereupon Mr. Kamali-Mafroujaki locked the woman in a bear hug, requiring her to push against his stomach to release herself. Mr. Kamali-Mafroujaki took her arm and invited her to talk with him in a shaded, well-hidden area. Mr. Kamali-Mafroujaki then went for a test drive while the woman returned to the dealership office. She hid from Mr. Kamali-Mafroujaki and the owner of the dealership confronted him and ordered him off the premises. Two days later, Mr. Kamali-Mafroujaki was arrested and charged with sexual assault. In July 2013, he was convicted and sentenced to two years’ probation together with a prohibition against approaching the victim, a firearms prohibition, a DNA sample requirement, a requirement to register as a sexual offender and an order to undergo counselling under the supervision of a probation officer. This last part of the sentence has been suspended pending Mr. Kamali-Mafroujaki’s appeal.
In commenting on Mr. Kamali-Mafroujaki’s testimony, Mr. Justice Armstrong addressed the question of motivation. Mr. Kamali-Mafroujaki testified that he wished to “network” with the victim. He wanted her to help him source cars. Mr. Justice Armstrong found it “highly improbable to me that you had at any time any sort of relationship with [the victim] – business or personal – sufficient to invite her for coffee or dinner...It is clear that, at most, you had seen [the victim] on a few previous occasions and that your contact was extremely limited”.
Mr. Justice Armstrong issued a publication ban to prevent the identifying of the victim and the other prosecution witnesses at the trial. This Tribunal has ordered that those exhibits in these proceedings, which identify the victim or help identify her, will be kept confidential with access limited to the parties and the Tribunal. This decision will not identify anyone protected by the Court’s publication ban.
In this hearing, Mr. Kamali-Mafroujaki testified that he had done nothing wrong and was wrongly convicted. His evidence was that he did escort the woman out to the car lot and did compliment her on her eyes but he did not touch or attempt to kiss her. His motivation was to develop a business relationship with the woman. Both Mr. Kamali-Mafroujaki and his wife testified that the woman had briefly met his family at a barbeque hosted by the dealership where the woman worked. Mr. Kamali-Mafroujaki invited her to coffee or dinner with his family. He testified that she had declined because she had a boyfriend and Mr. Kamali-Mafroujaki told her she could bring the man. His testimony was that he told the woman that his two children were waiting for him in his car. Mr. Kamali-Mafroujaki testified that he invited the woman to join him in the shade because it was very hot. He also invited her to join him for the test drive but she declined. When he returned from the test drive, the owner of the dealership confronted him. When Mr. Kamali-Mafroujaki denied any wrongdoing and asked to speak to the woman, the owner refused and asked him to leave. Mr. Kamali-Mafroujaki left but, realizing that he still had the car keys, returned to the office and in the process of returning them, he again denied any wrongdoing and asked to confront the woman. The owner, according to Mr. Kamali-Mafroujaki, assured him that there was “no problem”, urged Mr. Kamali-Mafroujaki not to worry about it and shook his hand. Mr. Kamali-Mafroujaki testified that this was the same version of events he had testified to during his trial. He said it was possible that he had not understood some of the questions posed during his trial as English is not his first language. He did have a translator, whom he characterized as “not very good”.
In the spring of 2012, Mr. Kamali-Mafroujaki applied to the Ontario Motor Vehicle Industry Council (“OMVIC”), the agency which administers the Act, to renew his registration. One of the questions posed on the application form is question 5 in Section G of the form. Question 5 reads:
Has the registrant ever been found guilty or convicted of an offence under any law, or are there any charges pending? Make sure to include those cases where a conditional, absolute discharge, stayed charges or pardon has been ordered/granted. Please note: This question refers to charges under any law. Accordingly, you may need to answer “yes” even if a criminal record (or other) check has come back clean.
Despite the charge of sexual assault against him, Mr. Kamali-Mafroujaki answered this question “No”. A year later, after several court appearances, Mr. Kamali-Mafroujaki again incorrectly answered the question in the negative. Mr. Kamali-Mafroujaki conceded that as part of his training to be a motor vehicle dealer he had received training on how to complete the form for registration and renewal. He testified that he “made a mistake” in completing the form because he believed he was not guilty. His wife, who is not a registrant under the Act, testified that the two of them had talked this over and she had encouraged him to deny that he had charges pending because she felt that he was not guilty.
Mr. Kamali-Mafroujaki was charged with a violation of the Act and pled guilty to providing false information on the renewal forms. In a negotiated settlement, he agreed to pay a fine of $5,000 together with a victim surcharge. This amount has been paid.
Ms. Mary Jane South, the Deputy Registrar of OMVIC, testified that OMVIC oversees approximately 23,000 salespeople and 8,000 dealers with an investigatory staff of approximately two dozen. Since it is not possible to police registrants, OMVIC relies on self-reporting by registrants. Therefore, the accurate and honest completion of registration forms is taken very seriously by the Registrar, according to Ms. South, and is regarded as a test of honesty.
Of concern to the Registrar in this case is the false and misleading information provided on the renewal forms and the underlying conduct that led to the conviction. The fact that the sexual assault occurred during the course of Mr. Kamali-Mafroujaki’s employment raises particular concern on the part of the Registrar, according to Ms. South. Ms. South also testified that the fact that Mr. Kamali-Mafroujaki denies any wrongdoing in the face of the conviction increases the risk of future misconduct in the Registrar’s opinion.
On February 11, 2014, the Registrar issued the Notice of Proposal to revoke Mr. Kamali-Mafroujaki’s registration on the grounds of the conduct surrounding the charge of sexual assault and the provision of false answers on his application for renewal forms.
DECISION
Under the Act, a person has a qualified right to be registered as a salesperson or dealer.
Section 6 of the Act reads, in part:
- (1) An applicant that meets the prescribed requirements is entitled to registration or renewal of registration by the registrar unless,
(a) the applicant is not a corporation and,
(i) having regard to the applicant’s financial position or the financial position of an interested person in respect of the applicant, the applicant cannot reasonably be expected to be financially responsible in the conduct of business,
(ii) the past conduct of the applicant or of an interested person in respect 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
(iii) the applicant or an employee or agent of the applicant makes a false statement or provides a false statement in an application for registration or for renewal of registration; ...
The Tribunal finds several aspects of Mr. Kamali-Mafroujaki’s conduct of concern. The sexual assault took place in a workplace setting. There is no evidence that alcohol or drugs were involved. Mr. Harnett, Counsel for Mr. Kamali-Mafroujaki, submits that the assault itself is on the “lower end” of the spectrum of sexual assaults. It is not possible to determine that in a vacuum. To make that determination, it would be necessary, among other things, to hear from the victim as to what the impact of the assault has been on her, both in the short and medium term. Assuming, for the sake of argument, that the Tribunal were in a position to conclude that the assault was comparatively minor with little victim impact, then what would flow from that finding? If Mr. Kamali-Mafroujaki were making sincere efforts to understand what motivated him to assault the victim and how to avoid acting on such impulses in the future, it might well have been possible to consider a registration, perhaps on terms and conditions. In this case, however, Mr. Kamali-Mafroujaki accepts no responsibility for what happened and continues to assert his complete innocence in the face of a conviction which includes a strongly worded finding of credibility against him.
Mr. Harnett submits that Mr. Kamali-Mafroujaki is appealing the conviction and is entitled to assert his innocence pending that appeal. It is not the role of the Tribunal to either look behind the conviction or attempt to anticipate the outcome of an appeal. Mr. Kamali-Mafroujaki has been convicted in a proceeding that turned on detailed findings of credibility against him. If he is successful in overturning the conviction, then that would be a material change in his circumstances which might form the basis of an application to the Registrar for re-instatement. The Tribunal cannot deal in hypotheticals; it must consider the evidence before it. The conviction stands. Mr. Kamali-Mafroujaki steadfastly denies any responsibility for the incident. He did not address the question of how, if his conduct were entirely innocent, his actions were misconstrued as sexually threatening. One consequence of Mr. Kamali-Mafroujaki’s position is that it is impossible to conclude that he has learned anything from his conviction or the events leading up to it that would serve to avoid a repetition.
Mr. Kamali-Mafroujaki testified that he is now afraid to have any dealings with women. This is not a sustainable position; he would have to continue to deal with women in the course of his day-to-day business. In fact, Mr. Kamali-Mafroujaki called as a character witness a woman who, with her husband, runs a dealership which Mr. Kamali-Mafroujaki supplies with cars. She was unaware of his conviction or the events leading up to it until the day before this hearing.
She testified that she has had no reason to be concerned about Mr. Kamali-Mafroujaki’s conduct in the two years that she has done business with him. She also testified that he is the principal supplier of cars to her dealership, that she would be hard-pressed to find a replacement supplier and that his business relationship is important to the success of her dealership. This is not to impugn her testimony but it does make it less than objective. Also, the circumstances are different in this case. The fact that the witness is in business with her husband might be expected to act as a deterrent to inappropriate behaviour on Mr. Kamali-Mafroujaki’s part. Her character assessment of Mr. Kamali-Mafroujaki is not persuasive. Mr. Kamali-Mafroujaki’s wife also testified that she trusted him and had no reason to be concerned about his conduct around women, including two women who were regularly in the house. Her evidence is not objective. Not only does she have an obvious interest in the outcome of this proceeding, but her belief in Mr. Kamali-Mafroujaki’s innocence is so total that she encouraged him to falsify his applications for renewal by withholding the fact of his criminal charge from his regulator.
Taken by itself, the provision of false information to the Registrar would not necessarily have been grounds for revocation. The false answers are a concern in the context of this case, not only because they are violations of the Act but also because the false responses should be seen as part of the complete denial of the events leading up to Mr. Kamali-Mafroujaki’s charge and conviction. If nothing is admitted, no lessons can be learned.
Mr. Harnett submitted that Mr. Kamali-Mafroujaki’s history as a dealer without misconduct prior to the sexual assault should be considered. The Tribunal did weigh this but concluded that the steadfast refusal of Mr. Kamali-Mafroujaki to confront his responsibility in the sexual assault significantly increased the risk of a re-offence. That risk must outweigh Mr. Kamali-Mafroujaki’s prior record as a dealer.
The Tribunal considered the possibility of registration on terms and conditions. Mr. Kamali-Mafroujaki acceded to proposed terms and conditions that might be characterized as draconian. Mr. Kamali-Mafroujaki has told no one outside of his immediate family and the character witness he called and her husband of his conviction. However, he would be willing to disclose in writing the facts of his conviction to all the dealers with whom he does business. These dealers would be asked to countersign the letter and the letters would be provided to OMVIC. In addition to disclosing his criminal record, the letters would provide that it is a condition of his registration that he not be alone with any females. A person over 18 would be required to be present at all times. The difficulty with these proposed terms is that they appear to transfer the responsibility for good conduct from Mr. Kamali-Mafroujaki to the dealers with whom he does business. It is not their responsibility to monitor his behaviour. If Mr. Kamali-Mafroujaki were registered as a salesperson, it might be possible to consider imposing oversight requirements on his dealer. However, in this case, Mr. Kamali-Mafroujaki is the dealer. The proposed terms and conditions appear to be almost impossible to police.
There is also the question of whether Mr. Kamali-Mafroujaki could be trusted to live up to the requirements of the terms and conditions. In view of his complete denial of any responsibility for his sexual assault conviction and his willingness to mislead the Registrar about it on his renewal forms, it is impossible to have confidence that he would comply with terms and conditions that attempt to directly address the risk of misconduct towards women. For these reasons, continuing Mr. Kamali-Mafroujaki’s registration on meaningful terms and conditions is not an option.
Based on Mr. Kamali-Mafroujaki’s past conduct, including the conduct leading up to his conviction for sexual assault, his denial of responsibility for any of that conduct and his attempt to conceal his criminal charge from his regulator, there are reasonable grounds for belief that Mr. Kamali-Mafroujaki will not carry on business in accordance with law and with integrity and honesty. His registration must be revoked.
ORDER
By authority of subsection 9(5) of the Act, the Tribunal directs the Registrar to carry out the Proposal.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: July 31, 2014