Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-10-25
FILE:
10188/GAR
CASE NAME:
10188 v. Director of Vehicle Inspection Standards
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 a Licence.
Faramarz Zaraineh
Appellant
-and-
Director of Vehicle Inspection Standards
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Richard Macklin, Vice-Chair
APPEARANCES:
For the Appellant:
Ariyan Zaraineh, Counsel
For the Respondent:
Matthew Peachey, Counsel
Heard in Toronto:
September 27, 2016
REASONS FOR DECISION AND ORDER
By Notice dated March 18, 2016, the Director of Vehicle Inspection Standards (the "Director") proposed to refuse to issue a Motor Vehicle Inspection Station ("MVIS") licence to the Appellant.
The Appellant appeals that decision to the Tribunal.
The Facts
The Appellant, through a company named Auto Rally Inc. ("Auto Rally"), was first registered as a Vehicle Inspection Station in 1999. Between 1999 and 2003, he was convicted of four inspection-station-related offences under sections 10(a) and 99(2) of the Highway Traffic Act, R.S.O. 1990 c. H. 8 (the "Act"). Auto Rally was convicted of eight such offences between 2000 and 2005, under sections 10(a), 10(b), 90(3)(a) and 99(2) of the Act. Auto Rally was also issued five warning letters.
In 2005, the Director issued a Notice of Proposal to revoke Auto Rally's licence. That Notice of Proposal was appealed, unsuccessfully, to the Tribunal (see Auto Rally (Re), [2006] O.L.A.T.D. No. 6 (MacIntosh)). Auto Rally's MVIS licence was revoked on January 23, 2006.
The Appellant's son, Ashkon, applied for an MVIS licence in the late summer of 2005. In light of the Appellant's checkered track record, Ashkon asserted that he would operate independently of the Appellant and Auto Rally. The Director refused that application on the basis that it was a ruse and the proposed inspection station would not operate independent from Auto Rally. On appeal, the Tribunal accepted the Director's arguments and dismissed the appeal (see Lepage Test Inc. (Re), 2006 O.L.A.T.D. No. 224 (Sherman).
The Appellant previously held a salesperson licence and Auto Rally held a dealership licence, under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c.30- Schedule B (the "MVDA"). The Appellant and Auto Rally were convicted of twelve offences under the MVDA, in and around 2006. The convictions resulted in fines, which the Appellant did not pay. As a result, the Registrar under the MVDA issued a Notice of Proposal revoking the Appellant and Auto Rally's licences. The Notice of Proposal was appealed to the Tribunal. The appeal was dismissed (see Zaraineh (Re), [2006] O.L.A.T.D. No. 457).
The Appellant did not testify or file any evidence on this appeal. The primary basis upon which he asserts he should be granted an MVIS licence is the fact that he obtained a Certificate of Qualification (which was admitted into evidence on consent) to be employed as an automotive service technician. In submissions, the Appellant's counsel asserted that the primary reason the Appellant has failed in the past was because he relied on third-party mechanics who let him down. It was submitted that his Certificate of Qualification will negate his reliance on third parties and significantly improve compliance with the governing legislation.
The Law
- The pertinent sections of the Act are sections 91(3)(a) and 95(4), which state the following:
Grounds for refusal
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;
Power of Tribunal where hearing
95(4) Where the applicant, licensee, registrant or proposed registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and shall hold the hearing and may by order direct the Director to carry out his or her proposal or refrain from carrying out his or her proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Director.
Thus, the onus under s. 91(3) is on the Director to establish reasonable grounds for the belief that the Appellant will not operate the inspection station in accordance with law and with honesty and integrity (see Registrar A.G.C.O. v. 751809 Ontario Inc. o/a Famous Flesh, 2013 ONCA 157, at paragraphs 18-19).
The Director relies on the string of offences, revocations and refusals set out above to found the basis for a belief on reasonable grounds that the Appellant will not carry on business in accordance with the law and with honesty and integrity.
The Director acknowledged that the past revocation of Auto Rally's MVIS does not amount to a lifetime ban of the Appellant. The Director submits, however, that the Appellant's past misconduct – as set out above – is sufficient for the Director to meet its onus under the Act. The Director further submits that, upon meeting his onus, the Appellant must – to succeed on appeal – tender cogent evidence in regard to an explanation for past misdeeds and that indicates why those misdeeds will not be repeated in the future. Otherwise, he submits, the appeal should be dismissed.
The seriousness of the Appellant's past misconduct is amply set out in the various Decisions of the Tribunal noted above. For example, the Appellant's company – Auto Rally - was found to have issued numerous safety certificates for vehicles that had multiple safety failings (see Auto Rally (Re), supra, paras. 10-16). In two instances, the Appellant failed to keep the required inspection records (see Auto Rally (Re), supra, paras. 14 and 16). In one case, the inspection that formed the basis for a safety certificate was conducted off-site - a practice prohibited under the Act (see Auto Rally (Re), supra, para. 14). As a result of these instances of misconduct, Auto Rally's MVIS licence was revoked (see Auto Rally (Re), supra, paras. 21-25). The Appellant was also found to have circumvented the MVIS registration requirements by having his son stand in as a "front" for him (see Lepage Test Inc. (Re), supra, paras. 15-17). The Appellant acted outside the governing MVDA rules by hiring an unregistered sales person. He also failed to pay fines levied under that Act. As a result, his sales person's licence, and Auto Rally's dealership licence were revoked (see Zaraineh (Re), supra, at paras. 14-16). This list of past misconduct is not exhaustive.
The Tribunal finds, based on the Appellant's past misconduct, as set out above, that the Director has met his onus and has established reasonable grounds for the belief that the Appellant will not carry on business in accordance with the law and with honesty and integrity.
As noted above, the Appellant called no evidence and placed considerable reliance on the Certificate of Qualification that he obtained to be an automotive service technician. Given, however, that the Director met his onus through his evidence-in-chief, it was incumbent on the Appellant to tender evidence beyond this Certificate. For example, the Appellant could have tendered evidence as to how he has learned from his past mistakes and what steps he will take to minimize or eliminate such mistakes in the future. In the absence of such evidence, in the circumstances of this case, the appeal fails.
ORDER
- Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposed Notice, dated March 18, 2016.
LICENCE APPEAL TRIBUNAL
_______________________________
Richard Macklin, Vice-Chair
Released on: October 25, 2016