Licence Appeal Tribunal
Date: 2015-09-30 File: 9532/MVDA Case Name: 9532 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 – dated April 22, 2015 to Refuse Registration
Amar Al-Aubaid o/a X-Port Auto Sale Appellant
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
CONSENT ORDER
Upon the application to the Tribunal by Amar Al-Aubaid o/a X-Port Auto Sale, the Appellant, and the Registrar, under the Motor Vehicle Dealers Act, 2002, for issuance of a Consent Order of the Tribunal without a hearing pursuant to section 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; and
Having reviewed the written settlement signed by the Appellant and the Registrar, Motor Vehicle Dealers Act, 2002 as to the disposition of these proceedings which is filed and attached hereto as Schedule "A";
NOW THEREFORE, upon consent of the parties, this Tribunal orders that the proceedings in this matter are concluded and disposed of without a hearing on the basis of the terms set out in the said Schedule "A", which are incorporated into and made part of this Order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
RELEASED: September 30, 2015
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: Amar Al-Aubaid o/a X-Port Auto Sale 26 Beechmount Crescent London, Ontario N6E 2J3
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (the "MVDA"), Amar Al-Aubaid o/a X-Port Auto Sales ("Al-Aubaid") 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 Al-Aubaid agree that Al-Aubaid will be registered as a motor vehicle dealer under the Act.
Al-Aubaid will, for a period of at least one (1) year, employ a registered salesperson who shall be the final signatory on all contracts for the sale or lease of motor vehicles. This person must be specifically approved in writing by the Registrar. At the end of a period of one (1) year, Al-Aubaid may request that the Registrar remove this condition of registration.
As a condition of Al-Aubaid's registration and as evidence of financial stability, he shall provide the Registrar with an irrevocable letter of credit in the amount of $20,000. This letter of credit must be automatically renewable on an annual basis. At the end of a period of one (1) year from the date of this Order, Al-Aubaid may request that the Registrar release the letter of credit.
Al-Aubaid 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. Al-Aubaid further agrees to read all correspondence and bulletins issued by the Ontario Motor Vehicle Industry Council (OMVIC).
Al-Aubaid will provide the Registrar with notice in writing within five (5) days of any substantive changes to his business plan, or the information that was provided in obtaining his registration, pursuant to section 31 of Ontario Regulation 333/08.
Al-Aubaid acknowledges 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. Al-Aubaid further acknowledges that this includes attendance at auction.
Al-Aubaid will ensure that his registration will not be used to trade in motor vehicles where he knows, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.
Al-Aubaid will ensure that all personnel, agents, assignees or anyone acting on his behalf are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.
Al-Aubaid will ensure that all personnel, agents, assignees or anyone acting on his behalf to trade motor vehicles will be registered to him as a salesperson.
Al-Aubaid 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.
PREMISES
Al-Aubaid will operate exclusively from the location approved by the Registrar pursuant to section 28 of Ontario Regulation 333/08.
Al-Aubaid will maintain a sign at its registered premise that is visible to the public, pursuant to section 30 of Ontario Regulation 333/08.
Al-Aubaid will ensure that all advertisements placed by or on behalf of it will identify the registered name, address and phone number of the location approved by the Registrar, pursuant to section 36(2) of Ontario Regulation 333/08.
Al-Aubaid will ensure that all advertisements placed by or on his behalf will identify the registered name, address and phone number of the location approved by the Registrar, pursuant to section 36(2) of Ontario Regulation 333/08.
Al-Aubaid agrees not to change the location approved by the Registrar without first obtaining the Registrar's approval, in writing, pursuant to section 31 of Ontario Regulation 333/08. Al-Aubaid will then provide the Registrar with notice in writing within five (5) days of any such change of the location.
BOOKS AND RECORDS
Al-Aubaid will maintain all books and records at his registered premises in accordance with the MVDA and pursuant to section 52 through to, and including, section 60 of Ontario Regulation 333/08.
Al-Aubaid will maintain books and records which accurately record the true nature of transactions involving their trade of motor vehicles. Al-Aubaid 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.
Al-Aubaid 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.
Al-Aubaid 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.
Al-Aubaid 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").
Al-Aubaid will ensure that all vehicles purchased will be registered within six (6) days in accordance with section 11 of the HTA.
Al-Aubaid will undertake to ensure that all vehicles sold will be registered in the name of the purchaser in the records of the MTO before releasing the vehicle to the purchaser.
Al-Aubaid will undertake that in the event that his books and records are lost, stolen or destroyed in whole or in part, the Registrar will be advised, in writing, within five (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. Al-Aubaid further agrees to make all reasonable efforts to reconstitute the lost, stolen or damaged records.
FINANCIAL RESPONSIBILITY
Al-Aubaid agrees not to receive any new sources of financing without the prior approval of the Registrar. This does not apply where Al-Aubaid has applied on his own account and 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 Popularies Act, as may be amended from time to time.
Al-Aubaid will maintain bank accounts that are compliant with section 59 of Ontario Regulation 333/08.
Al-Aubaid will ensure that bank account transactions relate exclusively to the operation or financing of the business. Al-Aubaid agrees to notify the Registrar of any change in any business banking accounts.
Al-Aubaid will maintain a trust account, in respect of any deposits made in excess of $10,000.00 or any funds in relation to motor vehicles sold on consignment on the behalf of a consumer, pursuant to section 58 of Ontario Regulation 333/08. Al-Aubaid agrees to provide written confirmation to the Registrar, within five days, that a trust account has been established in his business name at its financial/banking institution.
Al-Aubaid will ensure that any in the case of funds received in the purchase or lease of a motor vehicle prior to delivery, and any funds received in the purchase of a motor vehicle that has been consigned to Al-Aubaid, and any funds received in the purchase of third party warranty or service plan, that the entire amount of funds will be deemed to be trust funds.
Al-Aubaid will maintain a ledger account listing the names and addresses of all persons that provided trust funds. Al-Aubaid will ensure that the ledger account contains the details of the amounts retained and a record of all disbursements.
Al-Aubaid will ensure that in the case of a consumer claim made against him to the Motor Vehicle Dealers Compensation Fund (the "Fund"), and where it is determined that there is an entitlement to compensation of the claim pursuant to section 42 of Ontario Regulation 338/08, that Al-Aubaid will reimburse the Fund for any monies paid in relation to the claim.
Al-Aubaid will comply with all federal, provincial and municipal tax obligations. Al-Aubaid will ensure all required filings are current and submitted with required payments. All taxes collected are deemed to be trust funds and will not be used for any other purpose other than remittances to the federal, provincial and municipal government.
DISCLOSURE
Al-Aubaid 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.
Al-Aubaid will disclose all material facts about the motor vehicles for purchase or lease to his customers. Al-Aubaid further agrees that, notwithstanding whether or not he considers a fact to be material, Al-Aubaid will comply with the disclosure obligation. Al-Aubaid further agrees to disclose all material facts on the Bill of Sale, in writing. Al-Aubaid 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, Al-Aubaid further agrees to disclose as much detail as possible regarding the nature and severity of the damage.
Al-Aubaid undertakes to independently research the history of all the motor vehicles under trade to ensure that all material facts are disclosed.
Al-Aubaid agrees 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.
Al-Aubaid will comply 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, Al-Aubaid will provide compensation to a purchaser concerning a motor vehicle under trade.
Al-Aubaid agrees to accept full responsibility for the quality of any repairs or alterations to a motor vehicle completed by him, his personnel, agents, assignees, affiliated repair facilities or anyone acting on his behalf.
PROFESSIONALISM
Al-Aubaid acknowledges that, pursuant to section 14 of the MVDA, the Registrar may request information from him in relation to any complaints, and that he is under a duty to reply to the Registrar's request for information as soon as practicable.
Al-Aubaid will be courteous, honest and professional in any written or other communication with the Registrar, the Registrar's representatives, other registrants, consumers or others.
Al-Aubaid will ensure that all advertisements placed by him, or on his behalf, shall 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.
EDUCATION
- Al-Aubaid agrees to successfully complete the Ontario Motor Vehicle Industry Council's Automotive Certification Course ("Certification Course") within ninety (90) days of the release of this Order, and to be responsible for all fees in relation to enrolment and completion of the course.
ACKNOWLEDGMENT AND UNDERTAKING:
The Registrar is relying on the accuracy and completeness of all documents, statements or information provided by Al-Aubaid.
The documents, information or statements provided to the Registrar are true to the best of Al-Aubaid'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 Al-Aubaid has 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 Amar Al-Aubaid Date:__________________
Mary Jane South Registrar, Motor Vehicle Dealers Act, 2002