Licence Appeal Tribunal
FILE: 9021/GAR
CASE NAME: 9021 v. Director of Vehicle Inspection Standards
Appeal from a Notice of the Director of Vehicle Inspection Standards pursuant to Sections 91(3)(a) and 92(4)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8, to Refuse to Issue a Motor Vehicle Inspection Station Licence to Fareeborz Zaraineh and to Refuse to Register Fareeborz Zaraineh as an Motor Vehicle Inspection Mechanic.
Fareeborz Zaraineh dba Technique Automotive Appellant
-and-
Director of Vehicle Inspection Standards Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Shiva Zareian, Paralegal
For the Respondent: Matthew Peachey, Counsel
Heard in Toronto: November 4, 2014
DECISION AND ORDER
BACKGROUND
This is an appeal to the Tribunal of a Notice of Proposal issued by the Director of Motor Vehicle Inspection Standards (the “Director”) under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), issued on July 22, 2014, to refuse to issue a Motor Vehicle Inspection Station (“MVIS”) licence to Fareeborz Zaraineh dba Technique Automotive and to refuse to register Fareeborz Zaraineh as an motor vehicle inspection mechanic.
In summary, the grounds set out in the Proposal are that, based on violations during Fareeborz Zaraineh’s previous participation in the MVIS program, the Director has reasonable grounds for belief that Mr. Zaraineh will not operate a motor vehicle inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity.
As a preliminary matter, Mr. Peachey requested that the Director’s Notice of Further and Better Particulars dated October 30, 2014 be entered as an exhibit. Ms Zareian objected on the basis that the Notice had only been disclosed on October 31, 2014. The Notice set out the Director’s intention to rely on six convictions rather than five as set out in the July 22, 2014 Notice of Proposal. The Tribunal admitted the October 30, 2014 Notice as Exhibit 2; the Appellant had been advised it was to be issued, the documents disclosed for purposes of the pre-hearing referred to the further conviction, and its content was not information that the Appellant did not possess. The Notice of Proposal dated July 22, 2014 and the Appellant’s Notice of Appeal were entered as Exhibits 1 and 3 respectively.
EVIDENCE AND FACTS
Registrar’s Evidence
The evidence of the Registrar comprised books of documents (Exhibits 4, 5 and 6) and the testimony of Ministry of Transportation employee Glen Dodwell.
Glen Dodwell has been employed by the Ministry of Transportation since January, 2001. He is a licensed mechanic. One of his responsibilities as a Transportation Enforcement Officer/Vehicle Inspector is the inspection of motor vehicle inspection stations which he checks for regulatory compliance. He explained that the Ministry licenses garages to perform safety checks and provide the fitness certificates for used vehicles which are required when vehicle ownership is transferred. A licensed motor vehicle inspection mechanic must perform an inspection in accordance with the regulations under the Act and then sign and date a safety standards certificate. Mr. Dodwell inspects a garage to ensure it has a valid licence, proper documentation and the tools required to carry out the vehicle inspection. He also follows up on complaints from the public.
Mr. Dodwell reviewed Mr. Zaraineh’s April 14, 2014 application to be licensed as a motor vehicle inspection station and registered as a motor vehicle inspection mechanic (Exhibit 3, Tab 2). Mr. Zaraineh was previously licensed as a motor vehicle inspection station doing business as Auto Display Centre (Exhibit 4, Tab 20) and, as a motor vehicle inspection mechanic, at both Auto Display Centre and at Auto Happy Inc., the latter being a motor vehicle inspection station licensed to his brother Kumarz Zaraineh (Exhibit 4, Tab 11) in 2004. Mr. Dodwell recommended that Mr. Zaraineh’s 2014 application be refused based on his record of eight convictions as the holder of the licence for a motor vehicle inspection station and three convictions as a registered motor vehicle inspection mechanic (Exhibit 4, Tabs 3 & 4).
Mr. Dodwell provided details with respect to Mr. Zaraineh’s conviction record.
Mr. Dodwell testified that he was sent reports by another Ministry enforcement officer who had conducted an investigation and had a recently purchased used vehicle re-inspected following receipt of a May 2005 public complaint with respect to the safety inspection performed on that vehicle (Exhibit 4, Tab 13). The investigation and inspection reports (Exhibit 4, Tabs 14 & 15), indicate that when the vehicle was re-inspected, it was found to have an excessively worn wheel bearing. Mr. Dodwell explained that based on their experience and on manufacturer’s specifications, the Ministry inspectors are able to determine whether or not a defect would have existed when the original safety inspection took place. In this case, that determination was made and Mr. Dodwell was sent the reports because the safety standards certificate (Exhibit 4, Tab 17) had been issued by Fareeborz Zaraineh at Auto Happy Inc., which was located in Mr. Dodwell’s geographic area of responsibility.
On receipt of the reports, Mr. Dodwell attended at Auto Happy Inc. and interviewed Fareeborz Zaraineh. Mr. Dodwell noted that the safety standards certificate had been signed by Mr. Zaraineh on April 7, 2005 but the vehicle had not left the dealership until April 14, 2005. Mr. Zaraineh advised this Enforcement Officer that he sometimes backdated his certificates because the Ministry would question him if he performed too many inspections on one day. In accordance with section 99(2) of the Act, Mr. Zaraineh was charged with making a false statement on a safety standards certificate and was convicted on January 5, 2006.
Mr. Dodwell testified that there was also a public complaint received by the Ministry with respect to a safety certificate issued by Mr. Zaraineh on June 27, 2005 while he was operating Auto Display Centre and was its registered mechanic (Exhibit 5, Tab 2). After receiving the complaint, Mr. Dodwell had the vehicle re-inspected. Issues found included a problem with steering caused by a brake caliper, an improperly working parking brake and play in a wheel bearing. Notwithstanding the fact that 63 days had passed since Mr. Zaraineh’s inspection, it was Mr. Dodwell’s professional opinion that these problems would have been present at the time of the original inspection. Mr. Dodwell met with Mr. Zaraineh who advised him that he had signed the safety standards certificate after taking the word of a mechanic at another shop who had actually done the inspection (Exhibit 5, Tab 4). Mr. Zaraineh was again charged under section 99(2) of the Act and was convicted on January 5, 2006.
Asked by Ms Zareian if unlicensed mechanics do inspect vehicles and then have licensed mechanics sign the safety standards certificate, Mr. Dodwell stated that while it does happen occasionally, most licensed mechanics are very protective of their licences and noted they assume responsibility when they sign the certificate. Referring specifically to the inspection which Mr. Dodwell conducted 63 days after Mr. Zaraineh’s safety inspection, Ms Zareian asked if it was possible that problems develop after the inspection as a result of consumers driving their vehicles. Mr. Dodwell explained that he relies on his experience and the vehicle manufacturer’s guidelines to determine whether or not a problem could have developed after an inspection. He noted that in this specific case, he believed that the mileage the driver had placed on the vehicle after the inspection was insufficient to have caused the problems. Asked then if it was fair to say that some defects might arise after inspection, Mr. Dodwell stated that he would not lay charges in those circumstances.
Mr. Zaraineh’s third conviction as a mechanic was under section 90(3)(a) of the Act, which states that a safety standards certificate shall not be issued unless the vehicle was inspected by a motor vehicle inspection mechanic at the motor vehicle inspection station. Mr. Dodwell testified that while he was at Pro Tech Auto, he found a safety standards certificate book which was marked as belonging to Mr. Zaraineh. Asked on cross examination how he happened to find the book, he explained that it was in plain view. On August 31, 2006, Mr. Dodwell attended at Auto Display Centre (Exhibit 4, Tab 23) to interview Mr. Zaraineh who explained that he had been asked to perform a safety inspection at Pro Tech Auto because they had run out of certificates. He had left his book of certificates there. Asked if he understood that he was only allowed to perform inspections on his own premises, he explained that while he had asked that the vehicle be brought to him, he did the inspection at his neighbour’s facility as a favour. Mr. Zaraineh was convicted on January 4, 2007.
Mr. Dodwell then testified that on October 11, 2006, when he went to Auto Display Centre to deliver a summons to Mr. Zaraineh, he witnessed him driving onto the premises from Finch Ave. Mr. Dodwell was aware that Mr. Zaraineh’s driver’s licence was suspended and therefore he also issued a summons for driving while under suspension (Exhibit 4, Tab 24).
On November 1, 2005, Mr. Dodwell investigated a consumer complaint with respect to a safety standards certificate issued by Mr. Zaraineh on September 24, 2005 (Exhibit 5, Tab 7). While a defect was found, Mr. Dodwell could not make the determination that it would have been present at the time Mr. Zaraineh inspected the vehicle. He therefore issued a general warning letter to the Appellant (Exhibit 5, Tab 10).
On April 9, 2008, Mr. Dodwell attended at Auto Display Centre because the licence for the motor vehicle inspection station had not been renewed. He discovered that Mr. Zaraineh had issued 94 safety certificates while the licence had been expired. He testified that while he could have laid 94 charges, he laid 6. Mr. Zaraineh was convicted on June 6, 2008 under section 91(1) of the Act which prohibits anyone from operating a motor vehicle inspection station without a licence.
Mr. Dodwell then referred to a March 9, 2006 MVIS Audit report (Exhibit 5, Tab 16). On that date, he attended at Auto Display Centre because Mr. Zaraineh had reported his safety standards certificate books had been stolen. This is a concern to the Ministry because it raises the possibility that the books will be used by non-licensed mechanics.
Referring to an application for a motor vehicle inspection station licence for LePage Test Inc. dated September 28, 2005 (Exhibit 4, Tab 28), Mr. Dodwell explained that he reviews these applications as part of their approval process. In this case, he was concerned because the principal of the applicant was Ashkon Zaraineh, the Appellant’s nephew, and the mechanic to be registered was the Appellant. The Ministry issued a Notice of Proposal to refuse to issue the motor vehicle inspection station licence and to refuse to register the Appellant (Exhibit 4, Tab 29). Mr. Dodwell served the Notice on Ashkon Zaraineh (Exhibit 4, Tab 30) but he could not recall if the Appellant was present at that time. Ashkon Zaraineh appealed the Notice to this Tribunal, citing both refusals in the Notice of Appeal (Exhibit 4, Tab 31). The appellants were represented by counsel Anthony Moustacalis who served an amended Notice of Appeal on the Tribunal and the Ministry on January 25, 2006 (Exhibit 4, Tab 32). Asked by Ms Zareian if the appellants had also been served, Mr. Dodwell indicated that he did not know.
On February 15, 2006, the Tribunal issued a Notice of Pre-Hearing, naming both LePage Test Inc. and Fareeborz Zaraineh as appellants, and sending it to Mr. Moustacalis (Exhibit 4, Tab 33). The February 24, 2006 Order issued by the Tribunal following the pre-hearing, at which the appellants were represented by Mr. Moustacalis, names both LePage Test Inc. and Fareeborz Zaraineh as parties (Exhibit 4, Tab 34). The Tribunal’s decision in this matter (Exhibit 6), released on May 25, 2006, indicates that at the outset of the hearing, Ariyan Zaraineh, the agent for the appellants at the hearing, withdrew Fareeborz Zaraineh’s appeal. The Tribunal therefore directed the Director to carry out his proposal to refuse to register Mr. Zaraineh as the mechanic at LePage Test Inc.
Mr. Dodwell indicated that the Appellant had also committed offences by issuing NSF cheques to the Ministry. On April 25, 2005, he attended at Auto Display Centre because the Appellant had issued an NSF cheque with respect to application fees and the Ministry therefore would not accept his cheque for the purchase of certificate books (Exhibit 4, Tabs 14,15,16). The Appellant provided a money order to clear the NSF cheque. A second NSF cheque resulted in the termination of the Appellant’s registration on August 15, 2005 (Exhibit 4, Tab 35; Exhibit 5, Tab 6).
Finally, Mr. Dodwell testified that, as set out in Exhibit 4, Tab 6, the Appellant has a history of driver’s licence suspensions from 1997 to 2012 for unpaid fines. He also noted that the record shows that the Appellant has been suspended for driving with a suspended licence. Asked by Ms Zareian if a valid driver’s licence is a condition of running a garage, Mr. Dodwell replied that in order for a mechanic to perform all the tests required by regulation, a vehicle must be driven. Depending on the size of a garage’s property, it might be possible for a mechanic to test drive on the property and a valid licence would not then be required. He then added that his concern with the Appellant is that he saw him drive into his facility from a major street while his licence was suspended.
Appellant’s Evidence
Fareeborz Zaraineh testified that he has been a licensed mechanic since 2004 and is now operating as Technique Automotive. Over the course of his career he has written more than 1,000 safety certificates. In that time he has had perhaps only two complaints and in those cases, the complainants went directly to the Ministry.
With respect to NSF cheques, he testified he has issued none. However, once, after issuing a cheque, he advised the Ministry that he had closed his bank account and told them they should not cash the cheque. He stated he had never received letters from the Ministry with respect to any NSF cheques. However, on cross-examination, he agreed that the address to which the August 17, 2005 letter at Exhibit 4, Tab 35 had been sent was his valid work address. Asked by Mr. Peachey if he had any record of his call to the Ministry, he said he did not.
With respect to LePage Test Inc., Mr. Zaraineh testified that the corporation belongs to his nephew and he does not know how his name came to be on the application. He stated that he never received the Notice of Proposal to refuse his registration or a copy of the Notice of Appeal. His relationship with his nephew is broken and he has not spoken to him for almost ten years. On cross-examination, he stated that his nephew did ask him if he could put him on the application as the mechanic and he told him “if you want to try, try”. Asked if the application was in fact made in 2005, he stated he had “no idea about that company”. Shown a copy of the application, he then agreed that his signature is on it but stated he does not remember signing it. He also has no memory of a hearing and no knowledge of the fact that his representative withdrew the appeal on his behalf. He only became aware of the result because a Ministry officer later told him he could not transfer to LePage Test Inc.
Mr. Zaraineh testified that he did not know his licence was under suspension on the day that Mr. Dodwell witnessed him driving into his premises from the street. Asked by Mr. Peachey if he had been convicted of driving while his licence was suspended, Mr. Zaraineh initially stated that he had been but could not recall how many times. Referred to the record contained in Exhibit 5, Tab 6, Mr. Zaraineh agreed he had been convicted three times for this reason. Finally, with respect to his certificate books, he stated that no one else has access to them because he keeps them in his table.
THE LAW
The Act sets out the reasons the Director may refuse to issue a motor vehicle inspection station licence and to register a motor vehicle inspection mechanic:
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;
The power of the Tribunal is set out in Section 95(4):
95(4) Where the applicant, licensee, registrant or proposed registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and shall hold the hearing and may by order direct the Director to carry out his or her proposal or refrain from carrying out his or her proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Director.
ISSUE
Does the past conduct of the Appellant afford reasonable grounds for belief that he will not operate a motor vehicle inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity?
SUBMISSIONS
Mr. Peachey submitted that the past conduct of the Appellant provides reasonable grounds for belief that he will not act in accordance with the law: the Appellant has a record of convictions when previously licensed or registered; he made a false statement on his application by stating that he had never before been refused registration; he issued NSF cheques to the Ministry; and he has a record of driving while his licence is under suspension.
Ms Zareian submitted that there is no proof that the Appellant had any knowledge about the Tribunal hearing that resulted in the Director’s previous refusal to license him as a motor vehicle inspection mechanic and therefore, he did not make a false statement on his application. With respect to the complaints against the Appellant about safety standards certificates he issued, she suggested that the problems subsequently found on re-inspection could have arisen after the initial inspection, noting that the complainants waited before making their complaints and asking if it was possible for someone to really be able to tell when an issue arose. She further submitted that if the Appellant had not been honest, he would not have admitted to either backdating safety standard certificates or to signing certificates for an inspection done by someone else.
ANALYSIS
The onus is on the Director to prove that there are reasonable grounds to believe that the Appellant will not act in accordance with the law, with honesty and with integrity. With regard to the standard of proof to be applied, Mr. Peachey referred the Tribunal to Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157, with respect to the standard to be applied by the Tribunal in making its determination:
18The standard of proof provided by s. 6(2)(d) of the Act that of “reasonable grounds for belief”. There is no doubt that this is a lower standard of proof than “balance of probabilities”. The Supreme Court of Canada made that clear in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, which dealt with this standard, one commonly used in regulatory statutes in the context of the Immigration Act. The court said this at para. 114:
The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion but less than the standard applicable in civil matters of proof on the balance of probabilities…In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information…
19As applied to this case, s. 6(2)(d) of the Act requires the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with the law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct makes it more likely than not that he will not carry on business as required.
Mr. Peachey also referred the Tribunal to 7686 v. Registrar of Alcohol and Gaming, 2013 CanLII 51164 (ON LAT), wherein Vice-Chair Flude wrote:
A hearing before this Tribunal, and indeed before any judicial or quasi-judicial body, requires two steps. Firstly, the Tribunal hears evidence and makes findings of fact. It then applies those findings to the applicable legal standard to determine the success or failure of the party carrying the onus. The statutory provision in issue in the current case, “reasonable grounds for belief” is applicable to the second branch of the process. Having heard the evidence and made findings of fact based on the McDougall standard of balance of probabilities, the Tribunal then must review those facts to determine if they create reasonable grounds for belief that the Applicant will not carry on business in accordance with law and with integrity and honesty.
In this case, the Appellant’s record of convictions both while licensed as a motor vehicle inspection station and while registered as a motor vehicle inspection mechanic is indisputable. Mr. Dodwell testified to the circumstances leading to the charges and the convictions: issuing safety standards certificates while not licensed as a motor vehicle inspection station; issuing a safety standards certificate for an inspection conducted by someone else and conducted off the licensed premises; making false statements on safety standards certificates, including falsifying the date of inspection and issuing certificates when the vehicle had defects. The Tribunal dismisses Ms Zaraien’s argument that the defects could have arisen after the inspection; the Appellant had the opportunity to make that argument when the charges were heard. The Tribunal accepts as fact that the Appellant was convicted of the offences.
With respect to whether or not the Appellant made a false statement on his April 15, 2014 application for a licence and for registration, the application (Exhibit 4, Tab 2) clearly shows that the Appellant ticked “no” to the question asking if he had ever been refused registration as a motor vehicle inspection mechanic. The Tribunal decision in LePage Test Inc. (Exhibit 6) states that the Tribunal directed the Director to refuse his registration after the appeal of the Director’s notice was withdrawn. Mr. Zaraineh initially testified that he did not know how his name came to be on the LePage Test Inc. application. However, he did identify his signature on the application. While Mr. Zaraineh testified that he has not spoken to his nephew, the principal of LePage Test Inc., for many years, the fact he signed the application is evidence that the relationship was not broken at that time.
Ms Zareian argued that there was no evidence that Mr. Zaraineh was served with either the Director’s Notice of Proposal or the amended Notice of Appeal. With respect to the latter, the Tribunal notes that initially both LePage Test Inc. and the Appellant were represented by counsel and that the amended Notice of Appeal was served by an articling student in counsel’s office. While the Tribunal acknowledges that there is no evidence that the Appellant was served with either notice, it notes that it would be highly unusual practice for counsel to formally serve his own clients with an amended Notice of Appeal. Counsel attended the pre-hearing in the matter and the Tribunal’s pre-hearing Order not only names Mr. Zaraineh as a party but requires the parties to advise whether they take issue with the Director’s findings with respect to his improper vehicle inspections. That counsel did not notify one of his two clients of either the pre-hearing, the issues raised at the pre-hearing, or the hearing date, stretches credulity. It further stretches credulity that the Appellant did not follow up on the status or the disposition of the matter, particularly given his testimony that he told his nephew, “if you want to try, try”, implying that he had some doubt about the application’s success. On a balance of probabilities, the Tribunal rejects Mr. Zaraineh’s testimony that he was unaware his LePage Test Inc. application had been refused and finds that he did make a false statement on the application which is the subject of this hearing.
The evidence provided by Mr. Zaraineh at this hearing was somewhat sparse. In addition to stating he was unaware of the previous refusal to register, he testified that he did not know that his driver’s licence was suspended on the date on which Mr. Dodwell witnessed him driving, and he denied issuing NSF cheques to the Ministry. He estimated that he had perhaps only two complaints in his career. However, he offered no supporting evidence for any of this testimony.
The Tribunal questions whether Mr. Zaraineh was unaware of his driver’s licence suspension. However, even if he was unaware, the fact remains that the documentary evidence provided by the Director shows a lengthy series of suspensions for unpaid fines dating back to 1997. Mr. Dodwell testified that the record also showed a suspension for driving while the licence was suspended. The Tribunal notes that, in fact, the record shows three such suspensions. The documentary evidence, in particular the Ministry’s August 15, 2005 letter, which was sent to the correct address, also indicates that Mr. Zaraineh did issue two NSF cheques to the Ministry.
The purpose of licensing motor vehicle inspection stations and registering motor vehicle inspection mechanics is to protect public safety. The falsification of safety standards inspection certificates puts the public at risk. In this case, the Appellant issued certificates for vehicles with defects; he changed the date on a certificate; he signed a certificate for an inspection he did not conduct. The evidence also indicates that he issued 94 certificates while he was not licensed to operate a motor vehicle inspection station.
Ms Zareian submitted that the Appellant’s admissions to signing a certificate for an inspection he did not conduct and to backdating a certificate are proof of his honesty. The Tribunal notes that these admissions were made when Mr. Dodwell was interviewing the Appellant during the course of his investigations. That the Appellant made these admissions under those circumstances does not diminish the fact that he has a record of multiple infractions.
The Appellant has a record of convictions for offences in the motor vehicle inspection program both as a licensee and a registrant. Moreover, the Tribunal has found that he made a false statement on his application and that he issued NSF cheques to the Ministry. And, while having a valid driver’s licence is not a statutory requirement for registration as a mechanic, the Appellant’s driving record of multiple suspensions, including three for driving while under suspension, demonstrates a pattern of disregard for the law. Based on this evidence of the Appellant’s past conduct, the Tribunal finds that there are reasonable grounds for belief that he will not operate a motor vehicle inspection station or act as a motor vehicle inspection mechanic in accordance with the law and with integrity and honesty.
ORDER
Pursuant to the provisions of section 95(4) of the Act, the Tribunal orders the Director to carry out the Proposal dated July 22, 2014 to refuse to issue a motor vehicle inspection station licence to Fareeborz Zaraineh and to refuse to register Fareeborz Zaraineh as a motor vehicle inspection mechanic.
LICENCE APPEAL TRIBUNAL
_________________________
Mary Ann Spencer, Member
Released: November 19, 2014