Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-01-23

8251/GAR

8251 v. Registrar of Motor Vehicles

Appeal From a Notice of Proposal of The Director of Vehicle Inspection Standards under the Highway Traffic Act, R.S.O. 1990, c. H.8 to Refuse to Register a Motor Vehicle Inspection Station and to Refuse to Issue a Motor Vehicle Inspection Station Mechanic’s Registration

AD Tractor & Trailer Repair Inc. and Ahmed Saeed Desai

Applicants

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Jane Weary, Vice-Chair

APPEARANCES:

For the Applicants:

Robin Spinks, Counsel

For the Respondent:

Patrick Moore, Counsel

Heard in Toronto:

January 09, 2014

DECISON AND REASONS

This is an appeal to the Licence Appeal Tribunal by AD Tractor & Trailer Repair Inc. and Ahmed Saeed Desai (the “Applicants”) respecting a Notice of Proposal by the Director of Vehicle Inspection Standard (the “Proposal”) to:

a) Refuse to issue a Motor Vehicle Inspection Station licence to AD Tractor & Trailer Repair Inc. and

b) Refuse to register Ahmed Saeed Desai as a Motor Vehicle Inspection Station Mechanic.

FACTS:

The grounds presented for the Proposal consisted of numerous convictions over the last 5 years for violations of the Highway Traffic Act (the “Act”) by both Applicants as well as false information contained in their most recent 2013 Application for Registration.

The facts were established through documents presented by Counsel for the Director of Vehicle Inspection Standards (the “Director”) and the testimony of Mike Jansen, Ivor Johnson and Ahmed Saeed Desai.

Ahmed Saeed Desai is the owner and principle of AD Tractor & Trailer Repair Inc. Both had been licensed under the Act since 2007. They have provided mechanic repair services and have also performed safety standard inspections, as mandated by the province under these licenses, to some considerable economic benefit. Mr. Desai testified that he has operated at only 30% of the business’ previous capacity since the loss of their licenses in the fall of 2012. At that time the Director had issued a Proposal to refuse their applications for new registration at a new location. That Proposal was based on a number of specified violations leading to convictions under the legislation (Exhibit 1). They had not appealed that Proposal and thus it had taken effect.

Due to the above-noted significant reduction in business activity and income, Mr. Desai re-applied for the licenses in June of 2013. In that application (Exhibit 3, Tab 2), signed by himself as Director of the corporate Applicant and in his personal capacity as mechanic, Mr. Desai denied either Applicant ever had a previous licence, or renewal, refused. The Director’s resulting Proposal, upon which this Tribunal hearing is predicated, relies on both the specified convictions and charges contained in the first Proposal as well as this most recent false disclosure to support his belief that the Applicants are unsuitable for registration.

Prior Convictions:

Mike Jansen is in his fourteenth year as an Officer with the Ministry of Transport (the “MTO”). His duties include monitoring and overseeing the motor vehicle inspection station (“MVIS”) program and enforcing the Act. He is also a licensed mechanic.

Mr. Jansen explained the system of annual vehicle inspection stickers issued by licensed facilities and mechanics such as the Applicants. The stickers are controlled by the MVIS regulatory body. The licensed mechanic performing the inspection at the licensed station facility is required to adhere the sticker to the window of the cab of an inspected truck to demonstrate to any regulator that the vehicle in question has met the mechanical standards for safe operation on provincial roads and highways. Because it signifies a successful inspection, it is important that it not be available for a vehicle which has not been inspected or which has failed to meet the standards. Hence, the mechanic himself is obligated to affix the document to the cab, replacing or covering any earlier such sticker.

Mr. Jansen also spoke of Safety Standard Certificates (“SSC”s) which are likewise regulated and likewise provided through the aegis of a registered licensed mechanic and station. These demonstrate compliance for both cars and trucks and are only required on changes in vehicle ownership.

The Applicants, in their capacity as registrants, were entitled and licensed to issue both.

Mr. Jansen provided a computer print-out of the corporate Applicant’s MTO history prior to termination of its registration pursuant to the Proposal of October 2012 ((Exhibit 3, Tab 5). It revealed the following:

One conviction based on an offence in 2007 of failing to affix the sticker as required contrary to section 8(4)(c) Regulation 611under the Act;

One conviction as above in 2008;

Two convictions as above in 2009;

One conviction as above in 2010;and

Two convictions as above in 2011.

As recently as December 19, 2013 convictions for the same offence were registered against both the corporate Applicant and Mr. Desai personally.

With regard to Mr. Desai, MTO records demonstrated convictions under the Act against him personally for the same offence as follows:

One in 2009; one in 2010; two in 2011; and the most recent above noted in 2013.

Other convictions against the corporate Applicant consist of two for improperly kept records contrary to s. 10B of Regulation 601 in 2008 and one for improper display of a garage licence in 2008 contrary to 5B of Regulation 601 and one of issuing a false safety certificate contrary to section 90 (3) (a) of the Highway Traffic Act in 2012.

Mr. Desai was also convicted of the last mentioned violation in 2012.

In September 2008, Mr. Jensen had attended at the Applicants’ place of business to serve a Director’s Warning Letter resulting from an earlier visit which had found the Applicants had failed to affix a sticker contrary to s. 8 of Regulation 611. At the time Mr. Jensen noted a pre-signed Certificate causing him to issue a second Warning Letter on that violation. He acknowledged no further incidents of this violation since 2008. Nonethleless, repeated convictions for improper adhering of stickers (referenced above) had occurred over the next years of on-going registration.

When asked why the Applicants` licenses continued to be renewed despite these on-going convictions and contraventions over their five years of registration history under the Act, Mr. Jansen advised that renewals were computer generated such that the only time an overall review of a registrant’s record took effect was at the time of a new application for registration. In this case, such a review was generated in 2012 because the Applicants were changing the address of their MVIS.

M. Desai testified. He is the sole income earner for his family of five. He first opened his own company in 2005/6 and, at one point, had six or seven employee mechanics working for him. Today, he has only two – a mechanic and an accountant, Pury. It was this latter individual who had completed the applications found to contain the misleading information on which the Proposal was partially based. Nonetheless, Pury has recently been hired on a full-time basis by the Applicants.

The Applicants did not dispute the conviction records. As concerns the repeated convictions for failing to affix stickers to inspected vehicles, Mr. Desai told the Tribunal he had problems with drivers leaving his repair shop before he had the time to affix the sticker. He had impressed the importance of adhering such stickers to the windows on each of his employees and agreed that only he had been charged and convicted in each instance because, every violation concerned vehicles he himself had worked on. When questioned what steps he had taken to ensure the problem stopped, Mr. Desai did not provide any information other than stating it would not happen again.

Mr. Desai advised he had taken the 2008 Warning Letters issued by the MVIS inspector seriously. He became more responsible about compliance after 2008. When asked by Counsel why then he had more convictions for breach of section 8 of the Regulations post 2008 then before 2008, the Applicant simply repeated he was now really serious about compliance. The years 2009 to 2011 had been extremely busy for his shop with over 150 inspections being performed monthly, yet the number of convictions had remained very low. In each case, he repeated that the driver had simply left the shop with the new sticker before he had the chance to get it onto the window. He advised he would be willing to take additional courses to reacquaint himself with the various regulatory requirements for a licensee, having taken no educational upgrading since 2001.

Mr. Desai explained that he had only partially filled in a pre-signed Certificate in 2008 because the details concerning the truck which needed to be added to the form were in the truck and he had not the time to retrieve them when the inspector arrived at the station. He insisted that this information included the odometer reading.

With reference for the conviction for not displaying his MVIS licence on the premises, Mr. Desai stated he always had displayed such information and seemed confused about receiving the conviction.

Finally, Mr. Desai’s testimony concerning his 2012 conviction for issuing a false safety certificate in violation of section 90 of the Act, was that – at the time of his inspection – the vehicle had met all safety compliance requirements. The Tribunal notes from the evidence that the non-compliant condition was not recorded until some weeks after the SSC had been issued.

False Information

Mr. Johnson testified to the false disclosure as set out in the 2013 application for registration signed by Mr. Desai for both Applicants (Exhibit 4, Tab 2). In response, Mr. Desai advised this had been an error on his part. Mr. Desai, it transpired, was not able to read English well. He had relied on his accountant, Pury, to fill out the forms correctly and, at the time of signing, he was unaware they contained the wrong information concerning past refusal. He admitted this was a mistake.

Disputed allegations

Ms Spinks for the Applicants objected to testimony from Mr. Jansen concerning payment by the Applicants of court fines ordered against them as no mention of this had been part of the Director’s Proposal against her clients and had only been brought to her attention by the Director’s Supplementary Exhibit material (Exhibit 4) served upon her less than the ten days required for disclosure under the Tribunal Rules of Practice.

The Tribunal accepted her objection based on the grounds such evidence would be unfair as additional to the grounds declared for refusal of the Applicants’ registration and did not meet the Rules concerning disclosure.

A second similar objection was later made to certain testimony concerning what was characterized by the Director’s witness as “excessive” SSC and sticker materials obtained by the Applicants. While this testimony was allowed, it has been given little to no weight in my considerations primarily because the characterization was never supported by evidence. In fact, when asked whether his suspicion that these were indeed excessive had motivated him to commence an inspection into the situation, Mr. Jansen said he had not done so as he already knew the amount ordered by the Applicants was excessive. Further, even though there were excessive stickers established by independent evidence, there are no grounds before this Tribunal to conclude some nefarious or improper activity was the cause.

A third issue arose concerning evidence of one of Mr. Desais employee mechanics. The Director had run a computer check which revealed this individuals driver licence had been suspended a number of years earlier leading the Director to conclude that this employee had undertaken test drives of repaired vehicles while unlicensed. Counsel inferred this demonstrated negligence on the part of the Applicant. There had been no reference to this in the Proposal and Counsel for the Applicant objected to it. While allowed, the Tribunal finds it carries no weight in relation to the issues before it. Mr. Desai in his evidence denied any knowledge of the suspension. The employee had driven to work each day and at no time displayed any activity to arouse suspicion he was not licensed. Further, the Director had continuously renewed the mechanic’s license over a number of years despite the suspension being clearly recorded on MTO’s records.

ISSUES:

Should the Proposal of the Registrar to refuse the Applicants’ licence be upheld?

LAW:

The following are the relevant sections of the Act:

Grounds for refusal

s. 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;

Grounds for refusal

s. 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;

APPLICATION OF THE LAW TO FACTS:

Given the requirements of the legislation, the Director’s Proposal will be upheld where the Applicants’ past conduct afford reasonable grounds to conclude that they will not operate their licensed business activity in accordance with law and integrity and honesty.

While the Tribunal is not persuaded that there was any intention to deceive or mislead the Director in the supply of wrong information of the most recent application for registration completed by the Applicants, it does conclude that Mr. Desai was willing to sign his affirmation of facts disclosed without verifying those facts. The evidence demonstrates he does not fault Pury for this wrong disclosure as he has now hired the gentleman to work for him on a full-time basis. Although not asked, this would suggest that the Applicant had not told Pury of the previous refusal by the Director. Nonetheless, knowing his licence was threatened, knowing he had numerous convictions for violations of requirements of his work, knowing his ability to read the English language was severely compromised, Mr. Desai did not reassure himself that the information supplied by Pury was in fact correct and was clearly willing to sign regardless of that verification.

This is of concern.

The Tribunal is not swayed by the evidence of the three convictions over six years of for inadequate records, improper displaying of the licence and the one false certificate. While the convictions stand and the Tribunal can not go behind them, there appear to be circumstances which would place these into a more favourable context for the Applicants.

However, the repeated instances of the violations of section 8 of the Regulation are a different matter. These are of grave concern. They reveal, at best, a similar lack of diligence exercised by both Applicants as has been found in the signing of the applications. It is striking that Mr. Desai kept providing stickers to drivers without affixing them to the vehicle in the face of a growing number of convictions registered against him and his station for the breach of law this occasioned. Had he truly been concerned it would have been simple enough to not return keys to drivers until all the licensee’s duties, including that of the sticker placement, were completed.

This apparent lack of care/diligence kept repeating itself over years despite the Applicant stating he took the responsibility seriously before the first Warning Letter in 2008 and, even more seriously, thereafter.

Neither is it sufficient to assert now that a willingness to take a future course and hire a consulting law firm demonstrates the requisite intention to operate the business within the law and with honesty and integrity. Frankly, the Applicant’s past conduct – including his assertion of his taking the legislative obligations seriously – belie the assertion. It is too little and too late.

Where he held a similar intention before, the facts establish he has nonetheless failed to meet the requirements and failed to institute changes to assist him to do so. Where he today may indeed intend to reform his business practice in order to meet the standard, his suggested reforms are not sufficient to outweigh his inability to do so in the past. What effect will a consulting law firm have on his adhering stickers in the day-to-day inspections he provides? What effect will a full-time accountant provide to this end? The added educational course may look fine, but there was no suggestion he failed to meet his obligations due to not knowing of the obligations. In fact, the evidence he himself provided was that he did and that he continuously advised his employees of the same. I do not conclude the terms and/or conditions put forward by the Applicants are sufficient to meet the concerns of the Director.

It is not sufficient to suggest that these convictions are few in number relative to the number of inspections performed. Any conviction for a violation of a duty dealing with laws affecting public safety are serious and relevant.

The fact is that the law requires specified business practices from licensees and registrants which the Applicants have repeatedly breached. These are not onerous and are not complex. They are, however, important to ensure the safety of the public highways. There was no evidence provided by the Applicants as to what action they took to try and reduce the incidences nor why the breaches were repeated. I do not accept that Mr. Desai had to leave the sticker with the driver in order to find a knife to remove the old sticker. Surely, after experiencing a conviction from such a practice, a reasonably diligent individual would change their practice. Keeping the sticker until tape was found to place it over the earlier sticker would suffice. This was not done. It was not done on a sufficient basis to lead to at least one charge and conviction for the breach annually.

In conclusion, the Tribunal finds that the past conduct of the Applicants’ does provide reasonable grounds for the Director to conclude they will not operate their licensed activities in accordance with the law and with honesty and integrity.

The Tribunal orders the Director to carry out the Proposal.

LICENCE APPEAL TRIBUNAL