Licence Appeal Tribunal
FILE: 8657/MVDA
CASE NAME: 8657 v. Registrar, Motor Vehicle Dealers Act, 2002
Motion for Stay of an Order of the Tribunal pursuant to the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B
Mirramin Kamali-Mafroujaki o/a Top Quality Auto Sales Appellant
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant: Symon Zucker and Nancy Tourgis, Counsel
For the Respondent: Michael Rusek, Counsel
Heard in Toronto: September 29, 2014
Reasons for Decision – Motion for Stay
1In a decision released on July 31, 2014, this Tribunal ordered the revocation of the Appellant’s registration as a motor vehicle dealer. The Registrar’s proposal was based on two grounds: the fact that the Appellant had been found guilty of sexual assault of a woman while he was conducting his business and the fact that he had falsely answered questions concerning the charge and conviction in two applications for renewal. The Tribunal stated that the false answers would not have been sufficient in themselves to draw the penalty of revocation. The Appellant was given two years of probation and other terms. He has appealed the conviction and the sentence. The appeal is scheduled to be heard on October 20, 2014. He has also appealed the Tribunal’s decision to order revocation of his registration to the Divisional Court. All of the procedural steps necessary to perfect the appeal have been taken, including having the recording of the proceedings sent for transcription. He now brings a motion to stay the Tribunal’s order pending the Divisional Court appeal.
2S. 9 (9) of the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B (the “Act”) addresses the issue of a stay of the Tribunal’s order pending appeal. It states:
(9) Even if a registrant appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal.
3Both parties agree that the test to be applied in considering whether to grant a stay is the test set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC). The test has three elements: is there a serious issue to be tried, will the failure to grant the relief sought cause irreparable harm to the Appellant and does the balance of inconvenience favour the granting of the stay? No single element is determinative. Deficiency in one element may be offset by a strong case for a stay in another element. The overriding concern is to make a just decision based on weighing the three elements.
4Despite the wording of the first element, that there is a serious issue to be tried, or in the case to be appealed, the threshold is not high. As the Court stated:
What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: see Metropolitan Stores, supra, at p. 150. Similarly, a decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but a refusal of leave in a case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits.
Once satisfied that the application is neither vexatious nor frivolous the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.
5On the current facts, the Appellant points out that, on a fair reading of the Tribunal’s decision, the Tribunal relied very heavily on the reasons for judgment in the criminal trial to find that the Appellant was not credible. The Tribunal then finds the Appellant has not accepted his guilt nor taken steps to remediate himself. The Appellant argues that he has appealed