Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-12-22
FILE:
9043/GAR
CASE NAME:
9043 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 and to Refuse to Register a Motor Vehicle Inspection Mechanic
Khan Brothers Auto Ltd. and Nadeem A. Khan
Appellants
-and-
Director of Vehicle Inspection Standards
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellants:
Nadeem A. Khan, on his own behalf and as Agent for Khan Brothers Auto Ltd.
For the Respondent:
Patrick S. Moore, Counsel
Heard in Toronto:
December 4, 2014
DECISION AND ORDER
BACKGROUND
This is an appeal to the Tribunal of a Notice of Proposal (the “Proposal”) issued by the Director of Vehicle Inspection Standards (the “Director”) under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), on July 15, 2014, to refuse to issue a Motor Vehicle Inspection Station (“MVIS”) licence to Khan Brothers Auto Ltd. and to refuse to register Nadeem A. Khan as a motor vehicle inspection mechanic.
In summary, the grounds set out in the Proposal are that, based on violations during Nadeem A. Khan’s previous participation in the MVIS program, the Director has reasonable grounds for belief that Khan Brothers Auto Ltd. will not operate a motor vehicle inspection station, and that Mr. Khan will not act as a motor vehicle inspection mechanic, in accordance with the law and with honesty and integrity.
PRELIMINARY MATTERS
At the time scheduled for the commencement of the hearing, no one appeared on behalf of the Appellants. The hearing was recessed and Tribunal staff unsuccessfully attempted to reach Nadeem A. Khan. The hearing re-commenced when Mr. Khan arrived at 10:00 a.m. The Tribunal asked him if he was comfortable proceeding without his assistant who had not yet arrived. Mr. Khan advised that while he had some difficulty understanding English “slang”, he was prepared to proceed alone until she arrived. The Tribunal notes that Mr. Khan’s assistant, who did arrive later, was not acting as a formal interpreter.
EVIDENCE AND FACTS
The Director’s Evidence
The evidence of the Director comprised a book of documents (Exhibit 3) and the testimony of Ministry of Transportation employee, Ivor Johnson.
Ivor Johnson has been employed by the Ministry of Transportation since January, 2001. He has been a licensed mechanic since 1995 and possesses Class 310S and Class 310T licences. In addition to inspecting garages for regulatory compliance, his duties as an inspector include the investigation of complaints in Peel Region, his assigned area of responsibility. He explained that Ministry-licensed garages conduct safety inspections on all types of vehicles and are authorized to issue safety standards certificates required for the transfer of vehicles. They also perform the required annual inspections for vehicles weighing 4500 kg or more. Mr. Johnson explained that mechanics inspect vehicles in accordance with Regulation 611 and the specific standards set out in Schedules I and 2. He noted that when a licensed motor vehicle inspection station opens, the Ministry provides it with a copy of the “MVIS manual” which contains the relevant regulations and Ministry circulars.
He further noted that a registered motor vehicle inspection mechanic who signs a safety standards certificate is required to have inspected the vehicle himself.
Mr. Johnson testified that on June 11, 2014, Nadeem A. Khan applied for a motor vehicle inspection station licence for Khan Brothers Auto Ltd. located at 70 Advance Blvd., Units 11-12, Brampton (Exhibit 3, Tab 1). Mr. Khan is the only director of the corporation (Exhibit 3, Tab 3). Mr. Khan also applied for registration as the sole motor vehicle inspection mechanic for the proposed inspection station.
Speaking to the documents contained at Exhibit 3, Tab 5, Mr. Johnson noted that Mr. Khan was previously registered as a motor vehicle inspection mechanic at Khan Brothers Auto, a business owned by his brother Naveed Khan. Khan Brothers Auto was licensed as a motor vehicle inspection station in April, 1996 and operated at Unit 10, 70 Advance Blvd. with the same telephone number as set out on the current application submitted by Khan Brothers Auto Ltd. Nadeem A. Khan was registered as Khan Brothers Auto’s sole motor vehicle inspection mechanic from April, 1996 to September, 2010, when both his registration and the station licence were terminated.
Mr. Johnson testified that the Ministry of Transportation records show that Naveed Khan, as the owner of Khan Brothers Auto, was convicted of four offences while licensed as a motor vehicle inspection station (Exhibit 3, Tab 6). Nadeem A. Khan was convicted six times between 1998 and 2009 while registered as the mechanic at Khan Brothers Auto (Exhibit 3, Tab 5). Mr. Johnson explained Nadeem A. Khan’s offences:
A conviction on July 20, 1998 under section 90(3)(a) of the Act for issuing a safety standards certificate when the vehicle did not meet the regulated standards. Mr. Johnson noted that this type of offence is normally discovered following investigation of a consumer complaint.
A conviction on July 15, 2003 under section 99(2) of the Act for making a false statement on a safety standards certificate.
A conviction on June 28, 2005 under section 90(3)(a) of the Act for issuing a safety standards certificate when the vehicle did not meet the regulated standards.
A conviction on June 27, 2006 under section 8(6) of Regulation 611 for failing to apply an annual inspection sticker to the vehicle. Mr. Johnson noted that if a commercial vehicle does not have a valid inspection sticker, the owner can be charged. It is the responsibility of the inspecting mechanic to apply the sticker.
Although he was not the investigating officer, Mr. Johnson provided detail with respect to Mr. Khan’s fifth and sixth convictions. Referring to the documents at Tab 7 in Exhibit 3, he explained that Mr. Khan signed an annual inspection certificate for a commercial vehicle on April 8, 2008, as both the licensee and the mechanic.
On April 23, 2008, the vehicle was re-inspected and two significant defects relating to steering, both of which were “out of service” violations, were discovered. The inspection report notes that there was no evidence of the wheels of the vehicle having been removed recently, which Mr. Johnson explained would mean that the brakes would not have been properly inspected. The investigating officer met with Mr. Khan on May 12, 2008, at which time Mr. Khan admitted that the wheels had not been removed and told the officer that this was because the truck had been in for a big job two months earlier. He could not provide an explanation as to how he missed the steering defects.
On March 24, 2009, Mr. Khan was convicted under section 99(2) of the Act for making a false statement on a safety standards certificate and under section 90(3)(b) of the Act for signing a safety standards certificate on behalf of the licensee when he was not authorized to do so.
Mr. Johnson testified that the Ministry of Transportation has not overseen any work performed by Mr. Khan since his registration was terminated in 2010. However, Mr. Johnson was at Mr. Khan’s facility approximately six weeks ago when he used it to conduct a re-inspection of a vehicle originally inspected elsewhere. He explained that Ministry inspection standards cross-reference manufacturer’s specifications. While conducting his inspection, he asked Mr. Khan to look up the relevant manufacturer’s specifications. He noted that most garages have one of two computer programs for this purpose and that Mr. Khan’s garage in fact has both. Mr. Johnson noted that Mr. Khan had to ask his assistant to help him locate the specifications even though Mr. Johnson could observe that it was on the computer screen. In Mr. Johnson’s opinion, locating the specifications was not a difficult task and therefore he had concerns about Mr. Khan.
On cross-examination, Mr. Khan asked Mr. Johnson whether an inspection sticker must be applied to the vehicle even if the vehicle is not being put on the road. Mr. Johnson replied that it did. Mr. Khan then asked where this requirement was set out and Mr. Johnson advised that it was contained in the regulations to the Act.
The Appellants’ Evidence
Nadeem A. Khan testified that he does not dispute the convictions on his record. However, he noted that some, while “technically” convictions, were for what he described as “small errors”. He stated that he made a mistake by representing himself in court because he could not afford a lawyer. He also stated that a Ministry of Transportation employee, who he could not name, told him that pleading guilty would not have a negative effect on his registration.
Mr. Khan spoke specifically to the 2006 conviction for failing to place the inspection sticker on the vehicle. He testified that the sticker was ready but noted that when the customer returned to pick up the vehicle, it was raining and he simply forgot to apply it. He noted that this was a conviction, but for a small error and stated that sometimes, under the pressure of workload, errors can occur.
Mr. Khan has been in business for twenty five years. During that period, he has taught twenty apprentices and currently has two working through the Ministry of Training, Colleges and Universities (Exhibit 5). He stated that he has learned a lot since his convictions and he promised that “this will never happen again”. Asked by Mr. Moore if the Ministry of Training, Colleges and Universities had ever asked him if he had any convictions, Mr. Khan indicated it had not.
Mr. Khan stated that his customers are happy with his work. Exhibit 4 is a four page letter of support which he asked his customers to sign. The letter contains 27 names. Mr. Moore asked why each of the third and fourth pages appeared to be in the same handwriting. Mr. Khan explained that he personally asked the customers who signed the first two pages to do so and each one completed the document. However, in the case of the third page, the mechanic he employs asked customers to sign the document but filled it out on their behalf. The fourth page was completed by the owner of a small business and comprises the names of the employees of that business who bring their vehicles to Mr. Khan’s facility. Mr. Khan denied that the document was “fake”, and said that he had just “pushed” to have it ready for the hearing.
Mr. Khan also submitted a letter of support from Gamma-Dynacare dated December 3, 2014, which is signed by the Manager, Driver National Dispatch. This letter states that Khan Brothers Auto Ltd. has serviced Gamma-Dynacare’s fleet for ten years and they are pleased with the service provided. Finally, Mr. Khan provided a letter confirming that he has been a volunteer with Heartland Creditview Community and Health Services for two years.
Mr. Khan finished his direct testimony by reading part of his Notice of Appeal:
Several years ago, I worked with several other persons in my business and as the owner I took responsibility for these charges. I have worked hard and grown professionally and planned to expand my business. I have achieved many successes, but I now realize the full impact of these charges. I consider auto mechanic my lifelong career, am dedicated to my profession, and enjoy providing excellent service.
He then noted that he is now the sole owner of his business and that he has relocated it to a shop adjacent to the former premises of the former Khan Brothers Auto.
On cross-examination, Mr. Moore asked Mr. Khan why he had asked Mr. Johnson about the requirement to apply an inspection certificate to a vehicle. Mr. Khan stated that he believed this was a new law. After pointing out that his conviction for failing to apply the sticker occurred in 2006, Mr. Khan then stated that he thought the law might have changed recently.
Asked if he agreed that there were serious convictions on his record, Mr. Khan stated he did agree. However, he noted that sometimes vehicles do break down after inspection and he again referred to the conviction for failing to apply the inspection sticker to the vehicle, stating that he simply forgot to do so.
Asked if he realized that he had been convicted for making false statements on safety standards certificates, Mr. Khan agreed he had been. He then noted that the previous garage was not as well equipped as his current one.
Mr. Moore asked Mr. Khan if he had undertaken any training. Mr. Khan stated that he had recently completed a course offered by Mercedes Benz and takes similar courses approximately every month. Asked if he had ever considered working for someone with an MVIS licence, he stated that he had not and noted that he operates a completely equipped six bay garage. He also stated that he has not considered going to a licensed inspection station to see how it works.
THE LAW
The Act sets out the reasons the Director may refuse to issue a motor vehicle inspection station licence and to refuse to register a motor vehicle inspection mechanic:
- (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;
- (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):
- (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 Nadeem A. Khan 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?
ANALYSIS
The onus is on the Director to prove that there are reasonable grounds to believe that the Appellants will not act in accordance with the law, with honesty and with integrity.
Mr. Khan has applied for registration as a motor vehicle inspection mechanic and, as sole director of Khan Brothers Auto Ltd., for a motor vehicle inspection station licence. Mr. Khan’s record of convictions while previously registered as a motor vehicle inspection mechanic is not in dispute. At this hearing, Mr. Khan, while agreeing that the record was correct, downplayed the seriousness of the offences, suggesting they were “small errors”, and spoke in detail only to the conviction for failing to place an inspection sticker on a commercial vehicle. Further, he stated that he made a mistake by not hiring a lawyer to represent him and testified that he had been told by a Ministry of Transportation employee that pleading guilty to the charges would not impact his registration. Notwithstanding the fact that Mr. Khan acknowledged responsibility in his Notice of Appeal and wrote “I am deeply regretful of the situations that led to these charges”, his testimony makes it unclear to the Tribunal that he has fully accepted responsibility for them.
Mr. Khan’s last conviction as a registered mechanic in the MVIS program was in 2009. With respect to that conviction, there were two defects serious enough to put the commercial vehicle “out of service”. Further, the investigating officer’s notes indicate that Mr. Khan told him the vehicle’s wheels had not been removed during the inspection because the vehicle had been serviced two months earlier. At this hearing, in his cross-examination of Mr. Johnson, Mr. Khan asked if an inspection sticker had to be affixed to a vehicle that was not going on the road and then suggested that the law was recently changed, even though his conviction for this offence was in 2006. Finally, Mr. Johnson testified that he witnessed Mr. Khan having difficulty locating manufacturer’s specifications which are cross-referenced in regulations and which he would be required to use for inspections were he to be registered. All of these incidents are indications to the Tribunal that Mr. Khan is not entirely familiar with the regulatory regime of the MVIS program.
In his Notice of Appeal and in his testimony at this hearing, Mr. Khan emphasized that he is now the sole owner of the new business and has “grown professionally”. Speaking to his past convictions, he promised that “it will not happen again”. Mr. Moore asked Mr. Khan what training he had undertaken and whether, in the past five years, he had either worked for a licensed motor vehicle inspection station or considered visiting one to learn how it worked. Mr. Khan indicated that he had recently attended a course sponsored by a vehicle manufacturer and did so regularly. The Tribunal accepts that Mr. Khan, with many years of experience and as the owner of a six bay garage, would be unlikely to wish to work for someone else. However, he also dismissed the prospect of investigating how a licensed station operates.
The Tribunal acknowledges that Mr. Khan provided two letters of support, one from a large corporation, the other signed by 27 of his current customers. With respect to the latter document, the Tribunal accepts Mr. Khan’s explanation with respect to why two of the four pages appear not to have been signed by the individuals listed. While the evidence of customer satisfaction and support may speak indirectly to Mr. Khan’s honesty and integrity, it does not address whether or not he would operate in the future in accordance with the regulatory regime of the MVIS program.
The Tribunal also notes that Mr. Khan is currently supervising two apprentices and has supervised approximately twenty apprentices in his career. However, he testified that the Ministry of Training, Colleges and Universities has never asked him about his MVIS record.
The purpose of licensing motor vehicle inspection stations and registering motor vehicle inspection mechanics is to protect the public safety. Mr. Khan’s convictions include two for making a false statement on a safety standards certificate and two for issuing safety standards certificates when the vehicle did not meet the standards. Whether these offences occurred by deliberate intent or because of a lack of knowledge, some of which was exhibited at this hearing, it does not change their potential impact on public safety. This record of offences alone provides reasonable grounds for belief that Mr. Khan will not operate in accordance with the law. However, he also provided no evidence to indicate any measures that he had taken with respect to how he would operate in the future to avoid similar situations, which may have lessened the impact of this prior record.
The Tribunal also notes that while the Ministry of Transportation records show Mr. Khan’s brother as the owner of the former licensed motor vehicle inspection station, Khan Brothers Auto, Mr. Khan, in both his testimony and his written Notice of Appeal, indicated that he was a part owner of that business. As such, Mr. Khan would share responsibility for the four convictions on that station’s record.
Based on the 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 honesty and integrity.
ORDER
Pursuant to the provisions of section 95(4) of the Act, the Tribunal orders the Director to carry out the Proposal dated July 15, 2014, to refuse to issue a motor vehicle inspection station licence to Khan Brothers Auto Ltd. and to refuse to register Nadeem A. Khan as a motor vehicle inspection mechanic.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: December 22, 2014