Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9144/MVDA
CASE NAME: 9144 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 Registrations.
Global Auto Care Inc. and Michael Wayne Doherty Appellants
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
PRE-HEARING ORDER
ADJUDICATOR: Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Appellants: Frank Macmillan, Counsel
For the Respondent: Michael Rusek
Heard by teleconference: November 26 and December 10, 2014
ORDER
On September 2, 2014 the Registrar, under the Motor Vehicle Dealers Act (the “Registrar”) issued a Notice of Proposal (the “Proposal”) to revoke the registration of Global Auto Care Inc. as a motor vehicle dealer and the registration of Michael Wayne Doherty as a salesperson under the Act (collectively the “Appellants”);
On December 9, 2014, the parties entered into a Settlement Agreement, a copy of which was attached hereto as Schedule “A”, in which the parties settled the matter, subject to the approval of the Tribunal;
Upon reviewing the Settlement Agreement and the Proposal and upon hearing submission from the counsel for the parties, the Tribunal orders as follows:
The attached Settlement Agreement is approved.
Upon consent of the parties, the proceedings in this matter are concluded without a hearing on the basis of the terms and conditions set out in the attached Settlement Agreement which are incorporated into and made part of this order,
LICENCE APPEAL TRIBUNAL
Harinder S. Gahir Vice-Chair
Released: December 22, 2014
Schedule “A”
TO: Licence Appeal Tribunal 530 - 20 Dundas Street West Toronto ON M5G 2C2
FROM: The Registrar Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council 65 Overlea Blvd., Suite 300 Toronto ON M4H 1P1
AND FROM: Global Auto Care Inc. 7631 Stone School Road Metcalfe, ON K0A 2P0
AND FROM: Michael Wayne Doherty c/o 7631 Stone School Road Metcalfe, ON K0A 2P0
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (the “MVDA”), GLOBAL AUTO CARE INC. (“the Dealer”), MICHAEL WAYNE DOHERTY (“Doherty”) and the Registrar, Motor Vehicle Dealers Act, 2002, (“the Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, do hereby waive the requirements of a hearing and consent to an Order of the Licence Appeal Tribunal based upon the following terms and conditions:
REGISTRATION
The Registrar and the Dealer acknowledge that the Dealer’s registration will be as a “general dealer”, as defined by section 1(1) of the MVDA and section 19 of Ontario regulation 333/08. The Dealer can apply for a change in its class of registration by submitting a written request to the Registrar in the prescribed manner.
The Registrar and Doherty acknowledge that Doherty’s registration will be as a “salesperson”, as defined by section 1(1) of the MVDA.
The Dealer and Doherty will comply with all requirements of the MVDA and Ontario Regulation 333/08, the Code of Ethics in Ontario Regulation 332/08, the Ontario Motor Vehicle Industry Council (“OMVIC”) Standards of Business Practice, 2010 and OMVIC Guidelines, as may be amended from time to time.
The Dealer and Doherty will provide the Registrar with notice in writing within five (5) days of any substantive changes to the information that was provided in obtaining the Dealer and Doherty’s registrations, pursuant to section 31 of Ontario Regulation 333/08.
The Dealer will provide the Registrar with notice in writing, within five (5) days, of any change in the officers or directors of the corporation, pursuant to section 24 of the MVDA. The Dealer further agrees to notify the Registrar of any change in partners or owner, person(s) in charge, and signing authority for the dealership. The Dealer further agrees not to effect such changes without first obtaining the Registrar’s prior written approval, which shall not be unreasonably withheld.
The Dealer and Doherty acknowledge that "trade" refers to buying, selling, leasing, advertising or exchanging an interest in a motor vehicle, or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle, as defined in the MVDA and pursuant to section 36 through to and including section 51 of Ontario Regulation 333/08, and is not limited to the signing of contracts. The Dealer and Doherty further acknowledge that this includes attendance at auction on behalf of the Dealer.
The Dealer and Doherty will ensure that their registrations will not be used to trade in motor vehicles where Doherty, on behalf of the Dealer, knows, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.
The Dealer and Doherty will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer or Doherty are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.
The Dealer and Doherty will ensure that all personnel, agents, assignees or anyone acting on behalf of the Dealer or Doherty to trade motor vehicles will be registered as a salesperson to the Dealer.
The Dealer and Doherty will not conduct business with any person acting as a motor vehicle dealer and trading in motor vehicles without first confirming that the person is registered as a motor vehicle dealer in accordance with the MVDA.
BOOKS AND RECORDS
The Dealer and Doherty will maintain all books and records at the Dealer’s registered premises in accordance with the MVDA and pursuant to section 52 through to, and including, section 60 of Ontario Regulation 333/08.
The Dealer and Doherty will maintain books and records which accurately record the true nature of transactions involving their trade of motor vehicles. The Dealer and Doherty will not be involved in the creation of books and records which are false or misleading as to the true nature of a transaction involving their trades of motor vehicles.
The Dealer and Doherty will provide free access to the Dealer’s books and records to an authorized representative of the Registrar in accordance with section 15 of the MVDA.
The Dealer and Doherty will maintain a garage register in accordance with section 60(1) of the Highway Traffic Act (“HTA”) and pursuant to section 57 of Ontario Regulation 333/08.
The Dealer and Doherty will not purchase a vehicle without first ensuring that the vehicle is registered to the seller in the records of the Ontario Ministry of Transportation (“MTO”).
The Dealer and Doherty will ensure that all vehicles they purchase will be registered to the Dealer within six (6) days of the purchase, in accordance with section 11 of the HTA.
The Dealer and Doherty will undertake to ensure that all vehicles they sell will be registered in the name of the purchaser in the records of the MTO before releasing the vehicle to the purchaser.
The Dealer and Doherty will obtain a receipt prior to the removal of any records by a government or professional agency; or any other person or entity, from the registered premise. Such receipt will include the recipient's name, address, telephone number, description of records taken, the time of return and the signature of recipient. This receipt will be maintained in the Dealer’s records.
The Dealer and Doherty will undertake that in the event the Dealer’s books and records are lost, stolen or destroyed in whole or in part, the Registrar will be advised, in writing, within 5 days of the event pursuant to section 55 of Ontario Regulation 333/08. The report will include all relevant documentation, which will include, but is not limited to, police reports, insurance claims and affidavits. The Dealer and Doherty further agree to make all reasonable efforts to reconstitute the lost, stolen or damaged records.
DISCLOSURE
The Dealer and Doherty will ensure that all trades in motor vehicles are completed in accordance with section 30 of the MVDA and pursuant to sections 39, 40, 41, 42 and 43 of Ontario Regulation 333/08 and section 4 of Ontario Regulation 332/08, where applicable.
The Dealer and Doherty will disclose all material facts about the motor vehicles for purchase or lease to their customers. The Dealer and Doherty further agree that, notwithstanding whether or not they consider a fact to be material, the Dealer and Doherty will comply with their disclosure obligations. The Dealer and Doherty further agree to disclose all material facts on the Bill of Sale, in writing. The Dealer and Doherty will ensure compliance with this disclosure obligation notwithstanding whether or not the vehicle has been branded through the MTO. For greater certainty, a material fact is one that, if disclosed, could affect the decision of a reasonable person to purchase or lease the vehicle or affect the purchase price.
In the case of damaged vehicles, the Dealer and Doherty further agree to disclose as much detail as possible regarding the nature and severity of the damage.
The Dealer and Doherty undertake to independently research the history of all the motor vehicles under trade to ensure that all material facts are disclosed.
The Dealer and Doherty agree not to represent any charges or fees on a Bill Sale as being required by law where the charges or fees are not required by law. For greater clarity, this includes charges or fees such as tax, registration fee or certification.
The Dealer and Doherty will comply promptly with all requests made by the Registrar in relation to any failure to comply with disclosure obligations. Further, where the Registrar considers any information to be a material fact, the Dealer will provide compensation to a purchaser concerning a motor vehicle under trade.
The Dealer and Doherty agree to accept full responsibility for the quality of any repairs or alterations to a motor vehicle completed by the Dealer or the Dealer’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Dealer or Doherty.
PROFESSIONALISM
Doherty, on behalf of the Dealer, further agrees to read all correspondence and bulletins issued by the Ontario Motor Vehicle Industry Council (OMVIC).
The Dealer and Doherty acknowledge that, pursuant to section 14 of the MVDA, the Registrar may request information from them in relation to any complaints, and that they are under a duty to reply to the Registrar’s request for information as soon as practicable.
The Dealer and Doherty will be courteous, honest and professional in any written or other communication with the Registrar, the Registrar’s representatives, other registrants, consumers or others.
The Dealer and Doherty will ensure that all advertisements placed by or on behalf of the Dealer comply with section 36 of Ontario Regulation 333/08, as well as the Code of Ethics in Ontario Regulation 332/08, the OMVIC Standards of Business Practice, 2010 and the OMVIC Guidelines, as may be amended from time to time.
MOTOR VEHICLE DEALERS COMPENSATION FUND
The Dealer and Doherty agree that the Dealer is currently indebted to the Motor Vehicle Dealers Compensation Fund (the “Compensation Fund”) in the amount of $ 5494.35.
Doherty, on behalf of the Dealer, agrees that the Dealer will pay the Compensation Fund the total amount of $5494.35 according the following payment schedule:
i. Doherty, on behalf of the Dealer, agrees that the Dealer will pay $2,000 no later than seven (7) days from the date of release of this Order.
ii. Doherty, on behalf of the Dealer, agrees that the Dealer will pay the remaining $3494.35 within thirty (30) days of the release of this Order.
iii. Doherty, on behalf of the Dealer, agrees that the above-mentioned payments will be made with cheques payable to the “Motor Vehicle Dealers Compensation Fund”.
The Dealer and Doherty acknowledge that their compliance with the payment schedule outlined above is a condition of their registrations under the Act.
The Dealer and Doherty further agree to fully, and without delay, reimburse the Fund for any future claims paid by the Fund to a customer of the Dealer, and for any other monies paid by the Fund in relation to those claims.
AUTOMOTIVE CERTIFICATION COURSE
- Doherty agrees to enroll in and successfully complete the OMVIC automotive certification course within 120 days of the date of release of this Order. Doherty agrees to incur all costs associated with this.
FINANCIAL RESPONSIBILITY
The Dealer and Doherty agree not to receive any new private sources of financing without the prior approval of the Registrar. This does not apply where the Dealer has obtained financing from a corporation registered under the Loan and Trust Corporations Act, The Bank Act or from a credit union or league to which the Credit Unions and Caisses Populaires Act, as may be amended from time to time.
The Dealer and Doherty agree to pay any outstanding judgments or court orders against the Dealer without delay.
ACKNOWLEDGMENT AND UNDERTAKING:
The Registrar is relying on the accuracy and completeness of all documents, statements or information provided by the Dealer and Doherty.
The documents, information or statements provided to the Registrar are true to the best of the Dealer and Doherty's knowledge and belief.
The Registrar may take further administrative action, including a proposal to suspend or revoke registration, arising from any matters that have occurred or may occur related to honesty and integrity, financial responsibility or compliance with these terms and conditions.
Independent legal advice has been obtained, or the Dealer and Doherty have had the opportunity to obtain independent legal advice, respecting consent to the Terms and Conditions contained in this document.
Signed in the City of ____________________ this day of _________________ 20_.
_
Signature of Appellant
Michael Wayne Doherty
Signature of Michael Wayne Doherty on behalf of Global Auto Care Inc.
(I have authority to bind the corporation)
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002
Date:____________________
Carl Compton