Licence Appeal Tribunal

DATE: 2015-07-07

FILE: 9284/GAR

CASE NAME: 9284 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 Revoke a Motor Vehicle Inspection Station Licence and to Revoke a Motor Vehicle Inspection Station Mechanic’s Registration

Shawan Ahmed Sagar dba Dhaka Auto Service and Shawan Ahmed Sagar Appellants

-and-

Director of Vehicle Inspection Standards Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Simon Dann, Member

APPEARANCES:

For the Appellants: Daniel English, Paralegal

For the Respondent: Matthew Peachey, Counsel

Heard in Toronto: May 12 and 13, 2015

DECISON AND REASONS

This is an appeal to the Licence Appeal Tribunal by Shawan Ahmed Sagar dba Dhaka Auto Service and Shawan Ahmed Sagar (the “Appellants”) respecting a Notice of Proposal, dated November 26, 2014, by the Director of Vehicle Inspection Standards to revoke the Motor Vehicle Inspection Station licence of Shawan Ahmed Sagar dba Dhaka Auto Service, and to revoke the registration of Shawan Ahmed Sagar as a Motor Vehicle Inspection Mechanic.

OPENING STATEMENTS

The Respondent's Counsel, Mr. Peachey, reviewed the Notice of Proposal to Revoke ("NOP") which notes that there had been issues with the Appellants since 2011. These included warnings, inspection tools not to standard, having expired registration, safety certificates signed by an unauthorized person, the absence of work orders for safety certifications as well as public complaints.

Mr. Peachey noted that in 2013, the Ministry carried out inspections of vehicles which had received safety inspection certificates from the Appellant and approximately 14 were found to be out of compliance with their certificates.

Considering the nature of complaints from the public, the time period over which issues had occurred and the number of vehicles involved, the Registrar's position is that the registrations of the Appellants should be revoked.

Mr. English, Paralegal for the Appellants, said that he would provide insight to the circumstances of the Appellants' operation as well as a review of the law. He stated the Appellant was, in the alternative, prepared to agree to conditions with the opportunity to change over some time.

EVIDENCE

Respondent’s Evidence

Stephen Wong is a Transportation Enforcement Officer and vehicle inspector with the Ministry of Transportation ("MTO"). He is a certified mechanic and first audited Dhaka Auto and Shawan Ahmed Sagar ("Dhaka"/"Sagar"/Appellants) in 2011 following a consumer complaint.

Mr. Wong testified that because Sagar purchased the vehicle back from the consumer, he only issued a warning for the violations found through his inspection of the consumer's vehicle. (Exhibit 3, Tab 6)

In January 2013, he carried out a station inspection as a result of another complaint and found Sagar was absent and that a safety certificate had been issued by Sagar's unlicensed worker. Work order numbers were also not available.

The outcome of this inspection was that Mr. Wong issued two charges for not keeping records (Exhibit 3, Tab 7) and this resulted in a record of conviction against Sagar (Exhibit 4, Tab 1).

Gordon Sadler is with the MTO and employed as a supervisor in charge of the motor vehicle inspection station program. His duties include scheduling, investigation, and review of charges under the Provincial Offences Act ("POA"). He has also been called as an expert witness. Mr. Sadler explained that a safety certificate is used when ownership of a vehicle is transferred.

He described Dhaka as a Type 2 vehicle inspection station for public and consumer vehicles. The station can issue safety certificates for any size vehicle as long as they have the right tools and space to handle the vehicle. While any licensed garage can issue safety certificates, the mechanics who sign the certificates must be registered with the Motor Vehicle Inspection Station ("MVIS") program and registered with a specific garage. Where the mechanic and owner are the same, that person is the only one who can issue the certificate.

The safety certificate is a 3-part form with the top copy sent to Service Ontario and the second copy is given to the person purchasing or requesting the certificate. The final or third copy is kept as a record book copy, along with a work order of the vehicle inspected. When a complaint is received, and if a safety certificate has been issued, the copies allow him to check the government's computerized records.

He has received numerous complaints about Dhaka Auto; Sagar is both the only mechanic and owner which means that safety certificates issued by Dhaka must be signed by Sagar. Depending on the severity of the complaint, he will decide whether or not to proceed with an investigation and an audit.

When investigating the complaints from the public that safety certificates issued for vehicles, believed to be unsafe, he contacted about 35 vehicle owners and asked them to attend at a specific re-inspection site. Twenty-nine owners appeared and he conducted most of the inspections.

Mr. Sadler reviewed the findings of a number of his inspections (Exhibit 3, Tabs 12 through 25 inclusive) ; a number of examples are as follows:

• a 1999 Dodge Caravan, with 222,056 kms, which he deemed unsafe and confiscated the licence plates after finding extensive and severe defects, several of which would have been evident and existing at the time of the safety inspection; the original inspection occurred 47 days earlier and the vehicle had travelled 942 kms since then (Tab 12);
• a 1999 Audi, with 251,192 kms, which he deemed unsafe and confiscated the licence plates after finding severe defects, several of which would have been evident and existing at the time of the safety inspection; the original inspection occurred 37 days earlier and the vehicle had travelled 343 kms since then (Tab 13);
• a 1996 Subaru, with 280,870 kms, which he found to have severe defects, making it unsafe to drive; he stated that the defects would have been present at the time the safety certificate was issued; the original inspection occurred 43 days earlier and the vehicle had travelled 343 kms since then (Tab 14);
• a 1998 Chevrolet, with 143,562 kms, which he found to have brake line and exhaust system corrosion; these issues, which were contrary to Highway Traffic Act ("HTA") regulations, would have been present at the time the safety certificate was issued; the original inspection occurred 62 days earlier and the vehicle had travelled 1174 kms since then (Tab 14).

Mr. Sadler stated that a lot of the vehicle issues involved the kind of rust which takes a long time to develop and eventually results in defects that would not be allowed to pass a safety inspection.

In November 2014, Mr. Sadler conducted an onsite inspection of the Appellant's facility and met with Sagar to discuss how the business was operated. He was told that Sagar does about 80% of his inspections for others and off his own premises, which is not allowed under the Regulations.

On his inspection of the tools used for vehicle inspections, he found they were not being used and some remained in their original packaging. He was told that some of the tools had been purchased as long ago as 7 years earlier.

In cross-examination, when Mr. Sadler was asked about corrosion in 10 and 12 year old vehicles and the impact on mechanical parts, it was noted that if the vehicles are old enough and significantly corroded, they should not be on the road for safety reasons to the driver and public.

Glen Dodwell is a mobile MTO transportation enforcement officer and vehicle inspector whose responsibilities include inspecting stations dealing with vehicle and truck inspections. He has been a licensed mechanic since 1990. On a daily basis, he receives complaints from purchasers of vehicles about the safety standards certificates issued for their vehicles.

If he encounters a complaint with a questionable item, he will arrange an inspection at a location of his choosing. In one such instance, he inspected a 2003 Honda Odyssey in October 2014 which had 272,508 km at the time of its inspection. When Mr. Dodwell inspected the vehicle, it was 61 days after the safety inspection and it had an additional 1973 km on it.

He found the vehicle to have clouded headlight lenses which would have prevented the original inspecting mechanic from properly checking the reflex reflector of each lamp, as required by the Regulations.

Steve Gimera is also an MTO transportation enforcement officer whose responsibilities include inspecting stations and on-road truck inspections. His current focus is to check licensed garages to ensure all tools, procedures and certificate books are in compliance.

On October 29, 2014, he inspected a Honda Civic with 248,095 km and found a number of defects he concluded were present at the time of the safety certificate, issued by Dhaka. It was his opinion that defects such as a frayed driver seat belt, a rotted rocker panel, heavy corrosion of the brake lines, split and torn rear control arm bushings, and a clouded headlamp lens, could not have suddenly occurred but were the result of age and natural wear.

Mr. Gimera said he inspected another vehicle that day - a Nissan Altima GXE with 222,507 km and a safety certificate issued by Dhaka almost two months earlier. He found a lamp improperly secured with rusted wire and foil tape. He also found the front grill secured to the vehicle with rusted wire and a brake pad wedged between the grill and bumper which appeared to be an effort to align the grill. But as the brake pad was not secure, it posed a potential hazard if it came loose and fell out.

It was his opinion that, based on his finding of rust under the foil and on the brake pad, the defect was present at the time of the safety inspection.

Appellant’s Evidence

Shawan Ahmed Sagar described his background and arrival in Canada in 2002. He said he had achieved a mechanic's diploma in his native country and also completed a mechanic's education program at Centennial College.

He originally began working at Dhaka as a mechanic and purchased the business in 2007 for $50,000 and he still owes about $20,000 on that loan.

When he first applied for MTO registration, he was visited by an MTO officer ("Peter" who is now retired), who gave him a safety standards book. Mr. Sagar said that in addition to the Centennial course he obtained his mechanic's registration and also took the MTO Safety Standards course.

He acknowledged he had no previous experience with corrosion as that did not occur in his native country, which has no winter season. He did not have any courses in or about the effects of corrosion on vehicles during his mechanic's program at Centennial.

Regarding his contacts with MTO for information or to get answers to questions, Mr. Sagar said that while it was not easy to contact anyone, he would have replies within 2 to 3 days, and acknowledged he always received "good guidance".

He claimed the contacts he had with MTO never included “any reference to the ‘brown book' (the Safety Standards book)... [or] the rules ... or importance of the brown book".

He did remember Mr. Wong's warning about a tool with a dead battery but said that “those tools are not used much any more because the tool mentioned has both digital and manual settings and [he] used it manually". He said that when he was warned about the battery he replaced it right away. Regarding the tools which looked new and were said to be in original packaging, he said they were expensive and he always cleaned them.

Mr. Sagar disagreed with Sadler's description of the stabilizer bar bushing problems with the Audi as being significant problems. Referring to the photo on page 57 (Exhibit 3, Tab 13), he said he contacted MTO and what he was told led him to believe this condition was ok. He also felt the hole in the outside brake hose, which Mr. Sadler had referred to, was not as significant since there is another hose inside of the larger hose.

He felt that rust perforation problems, as illustrated in Exhibit 3, Tab 15 photos, were okay as long as they were confined to the outer shell of the vehicle.

When he looked at leaking problems, Mr. Sagar acknowledged there may be rust problems but if there were no leaks then it was ok. He claimed this is what he was taught by other mechanics who told him to let that kind of rusting pass. His explanation for the problems found with the Honda Civic was that "this kind of thing never cause accidents on [the] road".

Mr. Sagar reviewed photos of alleged problems included at Exhibit 22, tab C and disputed MTO conclusions with explanations such as:

• pg 154 ... there is a coating on the lines and it is not leaking
• pg 156 ... the bushing is strong enough
• pgs 158, 159 ... the bushing is still 80% there
• pgs 160, 161 ... if the corrosion does not go into passenger compartment it is ok
• pg 169 ... only replaced damaged headlamp as other was working even though the lens was faded.

When he was questioned about his financial situation, he became emotionally distraught in describing his difficulties with understanding the requirements of his registration and his claim that he had never wanted to break the rules or the law. He said he had all the required tools but was able to carry out his work with manually operated tools instead of digital equipment.

In cross-examination, Mr. Sagar said bushings experience 2 types of cracks. There is one that results from age and wear while the second type occurs when the bushing is broken and that would not be certified without repair. Regarding hose leaks, he said he was taught by other mechanics that if there is no leak, the hose is ok but he now understands that is not the case.

Mr. Sagar acknowledged he had the manual given out by MTO but claimed no one ever told him he had to work according to the regulations in that book.

When asked why he checked off the "No Defects" box on the Safety Certificate for the 1996 Subaru, he said brake repairs had been done by another auto repair shop and when the repairs were done, there were no defects [any more]. For the seat belt issue, he now knows that a frayed belt is not okay. He reiterated his view that if there is a perforation or hole that goes into the passenger compartment, that is not okay.

He also views corrosion as part of a coating and with reference to a photo of brake hose covered by corrosion, he was convinced they could go another 3-4 years. On faded headlamp lenses, he argued that if they were too cloudy he would have cleaned them.

CLOSING SUBMISSIONS

Mr. Peachey submitted that Dhaka and Sagar were first registered in 2009 and there has been non-compliance "of sorts" since 2011.

The first complaint about Dhaka/Sagar concerned a vehicle which Sagar resolved by buying it back. There were issues with insufficient tools, an expired licence and an unauthorized employee issuing a safety certificate in Sagar's absence.

A 2014 audit led to a re-inspection of 29 vehicles which had safety certificates issued between 30 to 70 days earlier. The officers carrying out the re-inspections believed the found defects would have existed at the time of the original inspections and therefore the vehicles would not have passed the safety inspection.

Sagar did not dispute these findings but said he inspected the vehicles on the basis of what he had learned from other mechanics.

It is the Registrar's position that the issue of a safety certificate is a serious matter and that the public has the right to rely on a vehicle being inspected competently and in accord with the regulations.

Sagar said he did what he was taught and blames others instead of himself. He acknowledged he received a brown manual and initially read it but maybe not as much as he thought.

Mr. Peachey emphasized that it is not the Ministry’s job to train and in this matter, revocation is believed to be in the public interest and should be carried out.

He referred the Tribunal to Ramanathan Thangarajah and Unity Automotive Inc., [2012] LAT No. 5843 in which a registrant who had certified vehicles which he had not inspected or seen was found to be unsuited to be entrusted with certifying vehicles under the Act and regulations.

Mr. English submitted that the Tribunal may impose conditions on the registration and that there is evidence which goes beyond the “mere facts” of the matter. He suggested that Mr. Sagar has shown awareness that he has not always been in compliance and has expressed willingness to comply. His efforts to obtain assistance have been met with insufficient effort from MTO in reply.

While Mr. Sagar recalls details and has a comprehensive knowledge of automobiles there is an educational gap; the educational programs he took never touched on the requirements of the program or the MTO brown book. While Mr. Sagar was aware of all the problems, his interpretations were different.

In reply, Mr. Peachey submitted that when entering a highly regulated industry, which includes a manual describing the inspection process, there is a responsibility on an applicant to know the regulations.

LAW:

The law applicable to this matter is set forth in the following provisions of the Act.

90. (1) No person other than a licensee or a person authorized in writing by the licensee shall issue a safety standards certificate. R.S.O. 1990, c. H.8, s. 90 (1).

(3) A safety standards certificate in respect of a motor vehicle shall not be issued or a vehicle inspection sticker affixed to a vehicle unless,

(a) the vehicle has been inspected by a motor vehicle inspection mechanic in the motor vehicle inspection station and the vehicle complies with the inspection requirements and performance standards prescribed by the regulations; and

(b) the safety standards certificate or a vehicle inspection record,

(i) is made by the motor vehicle inspection mechanic who inspected the vehicle, and

(ii) is countersigned by the licensee or a person authorized in writing by the licensee. R.S.O. 1990, c. H.8, s. 90 (3).

(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;

(b) the proposed motor vehicle inspection station or its operation would contravene this Act or the regulations or any other Act or regulation or any municipal by-law respecting its establishment or location;

(c) the applicant is not competent to operate a motor vehicle inspection station in accordance with this Act and the regulations; or

(d) the equipment and premises are not suitable for the performance of the inspections for which the licence is sought. R.S.O. 1990, c. H.8, s. 91 (3).

(8) The Director may revoke or refuse to renew a motor vehicle inspection station licence where,

(a) any person has made a false statement in the application for the licence or a renewal thereof or in any safety standards certificate signed by the licensee or a person authorized in writing by the licensee or in any report, document or other information required to be furnished by this Act or the regulations or any other Act or regulation that applies to the motor vehicle inspection station;

(b) any inspection authorized by the licence is incompetently performed;

(c) the licensee or any motor vehicle inspection mechanic employed in the motor vehicle inspection station has misrepresented the condition of a vehicle with respect to the standards of equipment and performance prescribed by the regulations upon an inspection of the vehicle in the station for the purpose of determining whether or not to issue a safety standards certificate, sign a vehicle inspection record or affix a vehicle inspection sticker;

(d) there is a breach of a condition of the licence;

(e) the licensee does not comply with this Act or the regulations;

(f) the inspections that can be performed by the motor vehicle inspection station are misrepresented;

92. (1) No person shall sign a vehicle inspection record as mechanic or certify in a safety standards certificate that a vehicle complies with the standards of equipment and performance prescribed by the regulations unless the person is registered by the Director as a motor vehicle inspection mechanic in a motor vehicle inspection station and the Director may so register any person for whom application is made under subsection (2). R.S.O. 1990, c. H.8, s. 92 (1).

93. The Director may revoke the registration of a motor vehicle inspection mechanic where,

(a) the registrant or the licensee has made a false statement in the application for registration of the registrant or in a safety standards certificate or in any report, document or other information required to be furnished by this Act or the regulations or any other Act or regulation that applies to the registrant;

(b) any inspection performed under the authority of the mechanic’s registration is incompetently performed by the registrant; or

(c) the registrant does not comply with this Act or the regulations. R.S.O. 1990, c. H.8, s. 93.

ANALYSIS

It is clear from all of the evidence introduced by Officers Wong, Sadler, Dodwell and Gimera, and from the uncontested documentary evidence that inspection certificates were being issued by the Appellants contrary to the regulation requirements of a licensed motor vehicle inspection station and vehicles should not have received the certificates at all or without additional repairs. This posed potential risk to the public.

It is also clear on the evidence that the Appellant was allowing safety certificates to be issued by an unauthorized/unlicensed worker and was having repair work done offsite, and by others.

The Appellant attempted to explain that he had no experience with rust in his native country as it does not exist in a warm climate. He claimed there was no content about rust and its impacts on a vehicle in his mechanic's education program.

He said he did learn from mechanics he previously worked with. For example, he testified that if corrosion occurred on a brake hose, as long as it did not penetrate the outer hose it was ok (the described view of his mentor mechanics). He also stated that if corrosion was confined to the outer shell of the vehicle it was ok.

He acknowledged that he was learning more about the inspection requirements through this hearing process, specifically, what could not pass inspection.

The Tribunal takes note of the fact the Appellant arrived in Canada in 2002, from a warm climate country and that he may not have fully understood or appreciated the potential impacts, or hazards, to a vehicle, as interpreted by the Safety Standards Certificate inspection regulations.

His testimony that the educational courses did not cover corrosion or references to the Safety Standards Certificate as part of vehicle repair requirements in varying circumstances, or vehicle repair situations was not found to be an acceptable excuse.

The Tribunal did not find any indication in the Appellant's demeanor of any dishonesty or anything disconcerting about his testimony, his manner or responses to questions and is of the opinion that while he failed to meet the inspection requirements of the regulations, it seems he may have genuinely not understood the rigour with which he had to conduct the inspections.

If the Tribunal accept the Appellant's testimony that he did not understand the inspection requirements and what conditions should not pass the inspection, it is understandable that ,for example, he did not repair a vehicle's faded headlamp lens without any damage while he did repair the lens which did have some physical damage. As well, in the case of a brake hose with a layer of corrosion but no perforation, it is understood how he could see the corrosion as part of the outer layer of the line and that it did not need replacement.

However, that too is not found to be an acceptable excuse for not knowing the requirement to do a complete repair, in accordance with the regulations.

The Appellant provided no explanation regarding the issuing of safety certificates by an unlicensed worker and therefore the Tribunal finds this contravention of the Act and regulations as fact.

There was also no dispute about repairs done offsite, insufficient record keeping and public complaints, contrary to the Act and regulations. In addition, there was no evidence to indicate the Appellant instituted any operating changes following the 2013 conviction for not keeping adequate records.

Regarding the matter of proper tools not being used, the Appellant's testimony was that he had purchased the right tools and in some cases had either used their manual settings (where a dead battery was found) or used manual tools. He said the tools were expensive and he kept them clean. On this point, the Tribunal finds there was insufficient evidence on which to base a finding of a violation.

In summary, the Tribunal's conclusion is that while the Appellant may well not have had a full understanding of the Act and regulations, it accepts the Registrar's submission that education is not part of the Ministry's role but rather its role is to ensure compliance and safety for the public. Considering the number of vehicles found with defects which should not have passed a safety standards inspection, the Tribunal finds the Respondent has established, on a balance of probabilities, that the past conduct of the Appellant affords reasonable grounds to believe the Appellant will not act as a motor vehicle inspection station and mechanic in accordance with the Act and regulations.

The Tribunal weighed the evidence and submissions carefully on the issue of whether to attach conditions to the Appellants’ registrations thereby allowing them to continue to work in this industry. However, the fact that Mr. Sagar has had several interactions with Ministry representatives, through inspections and audits and presented no evidence to show he had taken any corrective action or gave no indication of any effort to better inform himself of inspection requirements, but has instead suggested he had little assistance from the Ministry, suggests that conditions, at this time, would not be appropriate.

However, he Tribunal encourages the Appellant to pursue a course whereby he may fully acquire the knowledge and understanding of the requirements as set out in the Act and regulations as well as all that is detailed in the Safety Standards 'brown book', should he wish to apply for registration in the future.

ORDER

The Tribunal hereby orders that the Respondent carry out the proposal as stated in the Notice of Proposal dated November 26, 2014, to revoke the Motor Vehicle Inspection Station licence of Shawan Ahmed Sagar dba Dhaka Auto Service, and to revoke the registration of Shawan Ahmed Sagar as a Motor Vehicle Inspection Mechanic under the Act.

LICENCE APPEAL TRIBUNAL

Simon Dann, Member

RELEASED: July 7, 2015