Licence Appeal Tribunal
FILE: 8927/MVDA
CASE NAME: 8927 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
Scott Edwards, Derek Booth, 1716114 Ontario Limited o/a Your Car Auto Finance Appellants
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
AMENDED MOTION DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellant Scott Edwards: Justin M. Jakubiak, Counsel
For the Appellants Derek Booth, 1716114 Ontario Limited o/a Your Auto Finance: Claudio Aiello, Counsel
For the Respondent: Elizabeth Maishlish, Counsel
Heard in Toronto: May 6, 2015
AMENDED MOTION DECISION AND ORDER
This motion arises in the course of an appeal by the Appellants to this Tribunal from proposed revocations of the Appellants’ registrations to trade in motor vehicles. The revocations are sought by the Registrar (the “Registrar”) under the Motor Vehicle Dealers Act, 2002 (the “Act”). The Appellants Derek Booth and 1716114 Ontario Limited o/a Your Car Auto Finance (“Your Car Auto Finance”) moved for an adjournment of the hearing in this matter to sometime in the fall of 2015. They sought the adjournment in order to bring an application for judicial review of an earlier Decision and Order of this panel on a motion for disclosure. The Appellant Scott Edwards supports the adjournment motion. The Registrar resists the motion. The Tribunal denied the adjournment motion with written reasons to follow. These are those reasons.
Adjournments are a discretionary matter for the Tribunal. Factors which may affect the granting of an adjournment are set out in Rule 12.5 of the Tribunal’s Rules of Practice as follows:
12.5 In determining whether or not to adjourn a motion, pre-hearing or hearing, the Tribunal may consider any relevant factors which may include:
(a) the reason for the request; (b) prejudice a party may suffer if the request is refused or granted; (c) the amount of notice given by the requesting party to the other parties and the Tribunal; (d) any agreement to the adjournment request by the other parties; (e) the length of the adjournment; (f) previous delays and requests for adjournments; (g) the public interest in the timely conduct of proceedings; (h) the conditions imposed by the Tribunal on any previous adjournment request.
It is clear from the wording of Rule 12.5 that the list of factors given is not intended to be exhaustive. Mr. Aiello, counsel for the Appellants Mr. Booth and Your Car Auto Finance, argued that the motion should be granted on the grounds that the application for judicial review is a serious matter and that his client would suffer irreparable harm if forced to proceed with the hearing before the judicial review was heard.
Mr. Aiello reviewed the history of this matter. The hearing was originally scheduled to begin in January. Mr. Aiello brought motions for further particulars and for disclosure of evidence in the fall of 2014. These motions triggered further motions and eventually a day of cross-examination of the Registrar’s affiant. The Tribunal issued an interim Order directing the Registrar to issue more fulsome particulars and to disclose certain evidence. The January hearing dates were vacated to permit the hearing of the motion to continue in February. On March 20, 2015, the Tribunal issued its Decision and Order on the motions. The Tribunal denied the motion to obtain unspecified evidence which might have been gathered during ongoing investigations of the Appellants by the investigatory arm of the Ontario Motor Vehicle Industry Council (“OMVIC”). In the Order, the parties were given until April 16, 2015 to disclose any other documents or things on which they intended to rely at the hearing, which was rescheduled to commence on May 6, 2015.
During an April 30th case management conference, Mr. Aiello advised that his clients had recently instructed him to bring the application for judicial review of the March 20th Order and that he would be seeking an adjournment of the hearing to permit the application to proceed. Mr. Aiello explained the delay in obtaining instructions to proceed with the judicial review by saying that he only decided to seek those instructions after reviewing the Registrar’s disclosure of April 16, 2015. Mr. Aiello advised that he had not yet prepared the judicial review application but, without being able to speak on behalf of the Divisional Court, he expected it to be heard promptly. Mr. Aiello suggested adjourning the hearing until agreed-to dates in the fall of 2015, subject to further adjournment if the judicial review application had not been decided. The Tribunal agreed to hear the adjournment motion on May 6, 2015.
On May 6, 2015, Mr. Aiello advised that he had still not prepared the application for judicial review but expected to do so within a week. He remained optimistic that it would be perfected quickly and that the Divisional Court would “provide a relatively quick return date.” Therefore, in Mr. Aiello’s submission, any adjournment would be relatively brief. Given the delay in proceeding with the application for judicial review to date, the Tribunal is less sanguine than Mr. Aiello about the timing of his application and the corresponding length of the adjournment he seeks.
Mr. Aiello conceded that applications for judicial review of interlocutory decisions are often denied on the grounds that they are premature. However, Mr. Aiello submitted that exceptions existed when there is a denial of natural justice or, as in this case, “very serious fundamental justice issues of broad sweeping implication.” Mr. Aiello argued that, “Proceeding with the hearing before the Divisional Court has had an opportunity to review the Tribunal’s decision will force these appellants to proceed without the evidence they seek and thus render the judicial review application moot. That in and of itself is a recognised form of irreparable harm to these appellants and a denial of natural justice.”
Ms. Maishlish submitted that the substance of the judicial review Mr. Aiello is seeking is speculative. It is true that Mr. Aiello does not know if there is any evidence in the ongoing OMVIC investigation that has not already been disclosed to his clients. He cannot say what evidence he seeks or what relevance it might have to his clients’ case. He cannot determine if the evidence he seeks will be inculpatory or exculpatory. However, these are issues to be considered by the Divisional Court during the judicial review.
It is for the Tribunal on this motion to determine the extent of the prejudice to Mr. Aiello’s clients if the adjournment is not granted. In this regard, the problem that Mr. Aiello has is in explaining the nature of the “irreparable harm” his clients will suffer if forced to proceed with the hearing before the judicial review proceedings are complete. There is no evidence that proceeding with the hearing would render the judicial review moot as Mr. Aiello submits. If Mr. Aiello’s application for judicial review is successful, then the facts of the ongoing investigation would be disclosed to Mr. Aiello’s clients. They might find those facts of no use or they might choose not to use them. If they did decide to use the facts in their defence, then the hearing would either have to be extended or re-opened to hear the new evidence. The worst case would be if the hearing were concluded and a decision rendered before the judicial review had succeeded. In that case, the grounds for appeal would be obvious and compelling. None of these outcomes render the judicial review moot nor do they constitute irreparable harm.
It would appear that another of Mr. Aiello’s concerns is that his clients might be put to the expense of either having to introduce new evidence at an ongoing hearing or reopening the hearing to entertain the new evidence. It is relevant, although not determinative, to note that the hearing has now been rescheduled to continue into September, 2015. Thus, if Mr. Aiello is correct in his submission that the Divisional Court may be expected to proceed promptly in this matter, it is possible that the judicial review application will be decided before the evidence in this case is concluded. Regardless of the timing, every party to a proceeding runs the risk of additional costs being incurred if there is a successful appeal or judicial review which causes the matter to be sent back to the Tribunal for a re-hearing in whole or in part. While that is a result which the Tribunal works hard to avoid, it is not “irreparable harm”. Conversely, to follow Mr. Aiello’s argument to its logical conclusion, any application to judicially review an interlocutory decision of the Tribunal on the grounds of a breach of natural justice would result in an adjournment pending the outcome of the judicial review. The Tribunal has consistently held that parallel proceedings, including parallel criminal proceedings, should not, in themselves, be grounds to delay the proceedings before this Tribunal. There are legitimate public interests to be considered before proceedings before this Tribunal should be delayed. The prejudice to the Appellants in proceeding does not rise to the level of irreparable harm. The question remains whether the prejudice to the Appellants outweighs the possible prejudice to the Registrar or the public.
In Ms. Maishlish’s submission, the prejudice to the Registrar in a further adjournment of this matter is multifold. First, the Registrar’s case includes numerous consumer witnesses. In Ms. Maishlish’s submission, these consumers will be travelling from multiple locations around the province to the hearing. Some of these consumers are financially hard up in Ms. Maishlish’s submission and obtaining time off work is difficult. The Registrar is concerned that “witness fatigue” will cause some witnesses to refuse to attend if there are continuing delays in commencing the hearing. Oral evidence may be lost as a result or the passage of time may dim recollections, in Ms. Maishlish’s submission. Ms. Maishlish also submits that there are multiple allegations of improprieties on the part of the Appellants and that consumer complaints continue to be made to the Registrar. The Registrar is therefore concerned that consumer protection requires a prompt hearing of this matter. The Tribunal is of the view that the possible loss of witnesses or of oral evidence, while regrettable, is not a determining factor in this decision. The public interest in the effective regulation of the motor vehicle trades is an important consideration in determining whether or not to grant the adjournment.
Mr. Aiello argues that the Registrar first inspected the operations of his clients in mid-2013. These proceedings began with a Notice of Proposal in June, 2014. Therefore, in Mr. Aiello’s submissions, there have already been extensive delays and it is not now a compelling argument that further delays will be prejudicial. The Tribunal does not accept this line of reasoning. Generally, hearings before the Tribunal are concluded in shorter time than has been the case here. There have been legitimate reasons for the delay but it is time that the matter proceeds to hearing. To say that because the matter has been delayed, further delay is not prejudicial overlooks the public interest. The public has a legitimate interest in knowing that the people from whom consumers buy automobiles are qualified for registration under the Act. The consumers in those transactions are entitled to the protection the Act is designed to afford them. The Registrar has brought numerous allegations against the Appellants and he asserts that customers continue to complain about the operations of the Appellants or some of them. The Registrar should be put to the proof of these allegations in a timely way. The Tribunal concludes that the prejudice to the Appellants in not granting this adjournment is outweighed by the prejudice to the public in granting it. In reaching this conclusion, the Tribunal considered the indeterminate length of the adjournment being sought.
When the Tribunal advised Mr. Aiello that his adjournment motion was denied, he moved to vacate the next date of the hearing, May 12, 2015, on the grounds that he needed to seek instructions from his clients to bring an urgent application to the Divisional Court for a stay of these proceedings pending the judicial review. Mr. Aiello submitted that since this would be an application for an emergency stay, it might well be heard before the next date scheduled in this matter, that is May 21, 2015. Mr. Aiello submitted that he would need to meet with his clients to obtain these instructions and could not attend to the matter by telephone. The Tribunal agreed to vacate May 12th as a hearing date and to commence the hearing on the next scheduled day of May 21st. However, the Tribunal expressed concern that Mr. Aiello should proceed with dispatch on this matter, which Mr. Aiello characterised as “urgent” and an “emergency application”. When pressed for an undertaking as to his timing, Mr. Aiello advised that he was prepared to undertake that he would meet with his clients by May 15, 2015 to obtain instructions about proceeding with the application for an emergency stay of proceedings. That is, Mr. Aiello was undertaking to consult his clients within nine days. That timing does not convey a sense of urgency. To date, the Tribunal has not been advised that Mr. Aiello has obtained the necessary instructions to commence his proposed emergency application. The Tribunal has advised the parties that they should be prepared to commence the hearing into this matter on May 21, 2015.
Ms. Maishlish advised that the Registrar had not received any disclosure from Mr. Aiello’s clients and no fresh disclosure from Mr. Edwards despite the Tribunal’s Order that disclosure be made by all parties by April 16, 2015. The explanation for the delay by Counsel for the Appellants was not persuasive but the Tribunal reluctantly agreed to extend the time for disclosure by the Appellants to May 14, 2015. The Tribunal cautioned the Appellants that the disclosure deadline was final.
The Appellants noted that the Registrar continued as late as April 16, 2015 to raise new allegations against them. Ms. Maishlish advised that in order to comply with her disclosure requirements, she was obliged to disclose new customer complaints. The Tribunal ruled that the Registrar should continue to disclose new customer complaints but would not be entitled to rely at the hearing on any complaints received after the April 16, 2015 disclosure deadline. Otherwise, the Appellants faced the prospect of continually confronting new allegations without having the necessary time in which to prepare a defence.
Finally, in a request for clarification following the hearing of this motion, Ms. Maishlish noted that she had been directed to supply the Appellants with a witness list by May 19, 2015 but the Tribunal had not directed the Appellants to supply any witness list to her. This was an oversight on the part of the Tribunal. The parties should exchange witness lists by May 19, 2015.
Accordingly, the Tribunal makes the following Order.
The motion for adjournment is dismissed.
The dates of May 12, May 28 and 29, 2015 previously set for the hearing of this matter are vacated.
By 4:30 p.m. on May 14, 2015, the Appellants will disclose any documents or things on which they intend to rely at the hearing and, apart from timing, this disclosure will comply with Rule 6 of the Tribunal’s Rules of Practice.
By May 19, 2015, the parties will exchange witness lists pursuant to Rule 6.3(b) of the Tribunal’s Rules of Practice.
The hearing of this matter will commence on May 21, 2015 at 9:30 am at the Tribunal’s Chambers, 20 Dundas Street West, 5th Floor, Toronto, Ontario and will continue, if necessary, on May 22, 25, 26, June 1, 29, 30, July 8 and September 14, 16, 17 and 18, 2015.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: May 14, 2015