Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-12-18

Appeal From a Notice of Proposal of the Director of Vehicle Inspection Standards under Subparagraphs 91(8)(a), (b), (d) and (e) of the Highway Traffic Act, R.S.O. 1990, c. H.8 to Revoke a Motor Vehicle Inspection Station Licence

Cory K. Caughy o/a Rusty Nuts Mechanical Services

Appellant

and

Director of Vehicle Inspection Standards

Respondent

DECISION AND ORDER

Adjudicators: Laurie Sanford, Vice-Chair

Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Cory K. Caughy

For the Respondent: Douglas Lee, Counsel

Heard in London, Ontario:

September 11, 12, 14, 15, 21, 22, 25, 26, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1Cory K Caughy o/a Rusty Nuts Mechanical Services (“Mr. Caughy”), was licensed to operate a motor vehicle inspection station (“MVIS”) on premises in the Municipality of Lambton Shores, Ontario (“property”). On August 27, 2015 the Director, Vehicle Inspection Standards (“Director”) issued a Notice of Proposal (“NOP”) to revoke Mr. Caughy’s registration. The Director alleges 10 grounds for the proposed revocation. These allegations may be summarised as follows. First, the Director alleges that Mr. Caughy made false statements on his initial application for his MVIS. Second, the Director alleges that Mr. Caughy breached the Highway Traffic Act R.S.O. 1990, c.H.8 (Act”) and the Regulations in the operation of his MVIS. Mr. Caughy appeals to this Tribunal.

2Mr. Caughy denies this conduct and says in his Notice of Appeal he “never received due process – had letters sent from MTO to my customers without any conviction.”

3For the reasons that follow, we are satisfied on the evidence that there are sufficient grounds for the proposed revocation of Mr. Caughy’s registration under the Act.

4Accordingly, we direct the Registrar to carry out his proposal.

B. PRELIMINARY ISSUES

5Mr. Caughy raised the following:

a. He disputed the Tribunal’s jurisdiction to hear his appeal. We informed Mr. Caughy that the Tribunal’s ruling dated February 2, 2017, had already established that we have jurisdiction to hear his appeal if he still wished to proceed. Mr. Caughy confirmed that he wanted to proceed with his appeal.

b. Mr. Caughy asked to use as evidence the Affidavits of John Barkauskas sworn August 11, 2017, and Angela Cammaert sworn September 1, 2017, and a legal opinion from Michael G. Forrester, LL.B. dated September 14, 2017. These documents were admitted as exhibits, subject to weight. Mr. Caughy was told that it was unlikely that we would give much weight to the affidavits and the legal opinion because the affiants and the author would not be subject to cross examination. Mr. Caughy was told that he could overcome this by having these persons testify at any time prior to the end of the hearing.

c. The Director called a handwriting expert, Ms. Jacquline Osmond, to testify. Mr. Caughy objected to her testifying because she did not write the expert handwriting report. We ruled that Ms. Osmond could testify but that her testimony would be subject to weight.

d. The Director asked that an adverse inference be drawn against Mr. Caughy because a material witness, Mr. John Simpson, the licensed mechanic whose name appears on many certificates issued by the MVIS, was present but did not testify. We declined to draw such an adverse inference. We are reluctant to draw such an inference against a self-represented party when that party has not been advised of the possibility. In this case, at the outset of the hearing, Mr. Caughy said that John Simpson would be helping him at the hearing but would not be a witness. The Director did not at that time raise the possibility of an adverse inference being drawn, although it was open to him to do so.

C. ISSUES:

ISSUE 1: Did Mr. Caughy make false statements on his application for an MVIS licence?

ISSUE 2: Did Mr. Caughy breach the Act and Regulations in the operation of his MVIS?

D. LAW:

6The authority for revocation is set out in s. 91(8)(a), (b), (d), (e) of the Act. Essentially, the Director may revoke an MVIS licence if

a. a false statement has been made in the application for the licence,

b. a false statement has been made in a certificate signed by the licensee,

c. a false statement has been made in any document or other information required by any Act or regulations applicable to the MVIS,

d. if any inspection is incompetently performed,

e. if the licensee does not comply with the Act or the regulations.

7The Director must provide written notice of the proposed revocation. The licensee may request a hearing by the Tribunal following which the Tribunal may direct the Director to carry out the NOP or substitute its opinion for that of the Director and the Tribunal may attach conditions to its order.

E. EVIDENCE AND ANALYSIS:

ISSUE 1: Did Mr. Caughy make false statements on his application for an MVIS licence?

8We must determine if there are grounds for the proposed revocation. The onus is on the Director to prove, on a balance of probabilities, at least one of the grounds in the NOP.

9In grounds 1, 2, 7 and 8 of the NOP, the Director asserts that Mr. Caughy made three false statements on his MVIS application. First, he submitted a false zoning bylaw letter. Specifically, the Director says Mr. Caughy submitted a letter in support of his application written on letterhead from the Municipality of Lampton Shores, when in fact the letter was not issued by that municipality. Second, someone other than John Simpson signed as the registered mechanic and third, the Director alleges that Mr. Caughy falsely certified that the application complied with all bylaws.

Zoning bylaw letter

10Inspector Dienesch of the MTO testified for the Director. Inspector Dienesch found a letter in Mr. Caughy’s MVIS file that purports to be on the letterhead of the Municipality of Lampton Shores. The letter is dated a month before Mr. Caughy’s application for an MVIS licence and is addressed to a man identified by Mr. Caughy as his landlord. The text of the letter reads:

As for our conversation that took place on August 02, 2012 regarding whether or not you are able to perform safety inspections in the workshop located at [the property]. I am aware that your shop has a sufficient and suitable area to perform safety inspections without any further alterations to the existing workshop.

Therefore, I cannot foresee any reason why you are unable to conduct such work at [the property].

11The letter is signed “C. Caughy Property Oversight Official”.

12Inspector Dienesch wrote to the Municipality of Lampton Shores and the Clerk of the Municipality advised him that the property was not zoned to allow an MVIS operation. Mr. Caughy admits that he wrote and signed the letter but said it was intended as assurance that there would be no further expenses imposed by the municipality for building permits on the property. Mr. Caughy admits that he signed the letter and described himself as “Property Oversight Official”. His testimony was that he often shows officials around the property on behalf of his landlord; the implication was that he uses that title on those occasions.

13Mr. Caughy testified that he did not submit a zoning by-law letter with his MVIS application. His testimony was that he was given oral assurances by a Municipal official that the property met the zoning requirements and that he passed those oral assurances on to the MTO inspector, Inspector Gilchrist, who collected his paperwork and processed his application. Mr. Caughy was unable to explain why Inspector Gilchrist had written in his notes that he received a by-law zoning letter as part of Mr. Caughy’s application. Inspector Dienesch testified that it is a requirement that a zoning by-law letter be submitted as part of a MVIS application and that oral assurances are not be accepted by the Director. Mr. Caughy said that he doesn’t know how the letter got into the MTO file. He speculates that it was given to the MTO by a confidential informant. Mr. Caughy’s evidence that he doesn’t know how it got into the MTO file is not credible or reliable because of the record that Inspector Gilchrist made at the time of the application that a zoning letter had been received. Mr. Caughy was the only one who stood to gain an MVIS licence by providing the letter to the MTO. In fact the licence was granted after the letter was provided. Placing the letter on what looked like letterhead of the municipality made it appear official, as did Mr. Caughy using the title “C. Caughy, Property Oversight Official”. We find that Mr. Caughy gave the letter to the MTO on what appeared to be municipal letterhead when in fact the letter was not from the municipality.

Statement in application of compliance with law

14The Director also alleges that Mr. Caughy made a false statement in his MVIS application dated September 18, 2012, by certifying that he held all permits required by law, bylaw or regulation for the business, and that the premises complied with all law, regulations and municipal guidelines.

15Patti Richardson, the senior planner for the municipality testified that a commercial use of the property would require a change to both the Official Plan and the zoning bylaw. In the Official Plan, the property is designated “Agriculture” and “Hazard and Environmental Protection”. Ms. Richardson testified that the MVIS station is a commercial use not allowed by the property’s current zoning which is “Future Development” and “Environmental Protection Natural Conservation” and the commercial use is not a legal non-conforming use as submitted by the appellant. Ms. Richardson testified that for a property to qualify as a legal non-conforming use under s. 34 (9) of the Planning Act the use must have been a legal use in 2003 when the current bylaw was enacted. In 2003 when the current bylaw was enacted, the legal permitted use was “single family dwelling”. No commercial use was allowed by the zoning bylaw at that time.

16The property is not a legal non-conforming use as suggested by Mr. Caughy, as stated in Forrester’s legal opinion and in the affidavit of Angela Cammaert because a commercial use was not a legal use in 2003. We do not place any weight on Ms. Cammaert’s affidavit or Mr. Forrester’s legal opinion as neither of them testified at the hearing and could not be cross examined. In his opinion letter addressed to Ms. Cammaert and Mr. Caughy, Mr. Forrester states that his opinion is based, at least in part, on the information Ms. Cammaert and Mr. Caughy have provided. That information was not before the Tribunal. Mr. Caughy testified that he believed the premises complied with all municipal requirements. Mr. Caughy’s testimony that he believed the premises complied with all law, regulations and municipal guidelines is not credible or reliable. The appellant said assurances were given to him by municipal employees Vic Stellingworth in 1997 and Randy Lovie in 2012 that the zoning on the property would allow a motor vehicle repair shop. These persons did not testify at the hearing. Mr. Caughy did not obtain any written confirmation from either of these persons at any time. Ms. Richardson made it clear that the municipality’s Official Plan and zoning bylaw are what govern and cannot be overridden by the verbal statements of municipal employees, even if made.

17The Municipality of Lampton Shores has no record of Mr. Caughy requesting a zoning letter. Mr. Caughy admits he wrote his own letter. Mr. Caughy said that he did not give the letter to the MTO as part of his MVIS application. He said that he thought someone else did this in an attempt to get him in trouble. Although Mr. Caughy denies he put the letter on what looked like municipal letterhead and denies that he submitted it as part of his MVIS application, we find that he did just that. In order to accept Mr. Caughy’s evidence, we would have to accept first that two municipal officials gave him oral assurances about the zoning; second that Mr. Gilchrist accepted these oral assurances; third that despite accepting the oral assurances, Mr. Gilchrist wrote in his notes that he had received a zoning letter; and fourth that somehow the false zoning letter was inserted into Mr. Caughy’s file at the MVIS with no trace and without Mr. Caughy having any knowledge of it. This explanation is not reasonable or believable. Inspector Dienesch, an MTO employee, testified that the letter was in the MVIS file when the police requested a copy of it and that the MVIS audit report dated September 20, 2012, confirms receipt of a zoning letter. Mr. Caughy is the only person who stood to gain from convincing MTO that the property met the zoning requirements for an MVIS station. The letter was required as part of the application. Mr. Caughy was the applicant. If Mr. Caughy really believed that the property met the zoning requirements, then there is no reason for him not to have asked the municipality for the zoning letter. By writing his own letter, Mr. Caughy was able to avoid asking the municipality for a zoning letter and deceive the MTO into issuing his MVIS licence. By certifying that he held all permits required by law, bylaw or regulation for the business, and that the premises complied with all law, regulations and municipal guidelines, we find that Mr. Caughy made a false statement in his MVIS application dated September 18, 2012.

Signature of registered mechanic

18The third false statement that the Director alleges Mr. Caughy made in his application relates to the signature of the registered mechanic on Mr. Caughy’s application. The application requires the signature of the person who will act as the mechanic in the MVIS operation. Mr. Caughy testified that his principal mechanic is Mr. John Simpson. Therefore, Mr. Simpson’s signature was required on the application. Mr. Caughy testified that Mr. Simpson signed the application and denied that anyone else had signed on Mr. Simpson’s behalf. Mr. Caughy admitted he signed John Simpson’s name to annual and safety inspection certificates.

19Ms. Jacqueline Osmond, a forensic handwriting expert employed by the Centre of Forensic Sciences testified on behalf of the Director. Her testimony was that John Simpson probably did not write his signature on a number of documents, including the application for the MVIS licence dated September 18, 2012. Ms. Osmond compared Simpson’s signature on documents known to be signed by him to the signature on the MVIS application and certain other documents. She explained the differences in the signatures, the distinctive characteristics of Simpson’s signature and why the writer had not been able to sign the same way Simpson signs his name. Some of the discrepancies were only visible under a microscope but others were plainly visible, even to a lay person. Ms. Osmond testified about the formation of certain letters which differed markedly from the verified signature of Mr. Simpson and the suspect signatures.

20We prefer the evidence of Ms. Osmond to that of Mr. Caughy. Ms. Osmond is a trained and experienced expert and a colleague of the original author of the handwriting report who adopted his report as her own. As noted above, some of the discrepancies are visible and obvious. We conclude that Mr. Simpson did not sign the MVIS application as required and as Mr. Caughy testified.

We conclude that Mr. Caughy made false statements on his MVIS application.

ISSUE 2: Did Mr. Caughy breach the Act and Regulations in the operation of his MVIS?

21The Director, in grounds 3 to 10 of the NOP, alleges that Mr. Caughy breached the Act and Regulations in the operation of his MVIS. In ground 7 of the NOP, The Director says Mr. Caughy made false statements in safety standards certificates, contrary to subsection 99(2) of the Act. All of the safety standards certificates seized by the OPP name John Simpson as the “Inspecting Mechanic”, are signed “John Simpson” and contain the signature of Mr. Caughy as licensee. Each safety standard certificate contains the following joint certification above the signature lines for Inspecting Mechanic John Simpson and Licensee Cory Caughy: “We hereby certify that the above described motor vehicle has been inspected in accordance with the provisions of Sections 88 to 100 of the Highway Traffic Act and Regulations issued thereunder, and that the items inspected met the prescribed standards on the Date of Inspection.” We find that Mr. Caughy made false statements in safety standards certificates contrary to subsection 99(2) of the Act for the reasons set out below in Grounds 9 and 10.

22In ground 8 the Director says Mr. Caughy made false statements in annual inspection certificates, contrary to subsection 99(2) of the Act. Each annual inspection certificate contains the following certification above the signature lines for “Inspecting Mechanic” and “Licensee”: “I certify this vehicle was inspected in accordance with the Highway Traffic Act, Regulations 611 for the type of vehicle indicated and found the items listed on the reverse to be within the prescribed safety standards.” Nine of the annual inspection certificates are signed with the name of John Simpson as “Inspecting Mechanic” as well as “Licensee”. This is false. John Simpson was not the licensee at any time. It is common ground between the parties that the MVIS licence has always been in the name of Mr. Caughy. Four of the annual inspection certificates are signed with the name of Mike Michiels as “Inspecting Mechanic” and “Licensee”. This is false. Mike Michiels was not the licensee at any time. The MVIS licence has always been in the name of Mr. Caughy. Mr. Caughy provided no explanation for these discrepancies. Thirteen of the annual certificates contain false statements as to the name of the licensee. We find that Mr. Caughy made false statements in annual inspection certificates, contrary to subsection 99(2) of the Act.

23In ground 3 the Director says while a participant in the MVIS program, Mr. Caughy did issue an NSF cheque to the Ministry, contrary to section 14 of Regulation 601 which specifies that certain fees be paid to the Ministry. Mr. Caughy admitted he issued an NSF cheque to MTO. Taken together with the other proven grounds, this is further evidence of Mr. Caughy’s refusal or inability to comply with the statutory requirements of his licence. We find that while a participant in the MVIS program, Mr. Caughy issued an NSF cheque to the Ministry and therefore failed to pay for a period of time the required fees to the Ministry, contrary to section 14 of Regulation 601.

Failure to keep copies of certificates for one year

24In ground 5 the Director says Mr. Caughy failed to keep on the licensed premises a copy of each safety standards certificate and annual inspection certificate issued for a period of one year from the date of issue, contrary to clause 10(1)(a) of Regulation 601. Detective Constable Dale Marsden of the Ontario Provincial Police and other officers executed a search warrant on December 19, 2014 at the property. Inspector Dienesch was present at the property to identify MTO safety and annual certificates. Some 84 completed safety standards certificates, some 127 completed annual inspection certificates and other documents were seized by the OPP. Inspector Dienesch testified and his notes taken at the time confirm that on December 19, 2014 some annual inspection certificates were missing from the books to be kept on the property, namely certificate #H6502751 – H6502760 and safety standard certificate books #20053521 – 20053540, 21499441 – 21499460. Mr. Caughy submitted that these certificates were taken by the OPP on the same day. However, our review of the certificates shows that annual inspection certificates #H6502751 – H6502760, safety standard certificates #20053539, 20053540 and 21499460 certificates were not amongst those copied and produced at the hearing by the OPP. We accept Inspector Dienesch’s testimony, confirmed in his notes that certificates were missing from the books on the property on December 19, 2014. The law requires that certificates be retained on the premises of the MVIS operation for a year. Given that the certificates issued before and after the missing certificates are within the one year period, the missing certificates should have been retained on the property. We find that Mr. Caughy failed to keep on the licensed premises a copy of each safety standards certificate and annual inspection certificate issued for a period of one year from the date of issue, contrary to clause 10(1)(a) of Regulation 601.

25In ground 4 the Director says while a participant in the MVIS program, Mr. Caughy did fail to notify the Director of the loss, theft or destruction of safety standards certificates and annual inspection certificates, contrary to section 13 of Regulation 601. As noted above, we find that some inspection certificates were not on the premises on December 19, 2014 and may be assumed to have been either lost or destroyed. The regulation requires the licensee to notify the Director of the loss, theft or destruction of the certificates. There was no evidence that there was any such notification to the Director. We find that Mr. Caughy failed to notify the Director of the loss, theft or destruction of safety standards certificates and annual inspection certificates, contrary to section 13 of Regulation 601.

Failure to keep records of vehicles inspected on licensed premises

26In ground 6 the Director says Mr. Caughy failed to keep on the licensed premises records of vehicles inspected, contrary to clause 10(1)(b) of Regulation 601. Inspector Dienesch testified and his notes confirm that on December 19, 2014 there were no work invoices found on the licensed premises. Inspector Dienesch testified that documentation found on the premises on December 19, 2014 was insufficient in that the vehicle was not described, defects repaired, measurements taken, type of certificate (annual or safety), VIN number, name of owner, who requested repairs, and fees for service were all not recorded. Mr. Caughy submitted that his records were kept elsewhere and he could not produce them on December 19, 2014 because he had been taken out of the shop by the police. The regulation is clear however that the documentation must be kept on the licensed premises. We find that Mr. Caughy failed to keep on the licensed premises records of vehicles inspected, contrary to clause 10(1)(b) of Regulation 601.

Certificates not made by motor vehicle inspection mechanic

27In ground 9 of the NOP, the Director says Mr. Caughy issued safety standards certificates and annual inspection certificates that were not made by the motor vehicle inspection mechanic who inspected the vehicle, contrary to subsection 90(3) of the Act. The word “made” in this context includes the signature of the mechanic who inspected the vehicle. Mr. Caughy admitted he signed John Simpson’s name to certificates. When presented with various certificates, Mr. Caughy could not identify which were signed by Simpson and which were signed by Mr. Caughy. Ms. Osmond testified that John Simpson probably did not write his signature on 3 safety standards certificates dated 2014, and 9 annual inspection certificates dated 2012 and 2013.

28Mr. Caughy testified that he reached an agreement with Mr. Simpson that Mr. Caughy would sign both safety standards certificates and annual inspection certificates on Mr. Simpson’s behalf. This arrangement, according to Mr. Caughy, began when Mr. Simpson broke his arm on about September 29, 2012 and continued after Mr. Simpson recovered by the end of the year.

29We find that Mr. Caughy’s testimony is not credible or reliable for the following reasons. The hospital records show that Simpson sought treatment for a broken arm on September 29, 2012. Harry Charles, the plant manager for Simpson’s employer testified that Simpson was off work until about Christmas, 2012. There was no reason for Mr. Caughy to continue to write Mr. Simpson’s signature after his arm had healed at the end of 2012. If Mr. Simpson were present during the vehicle inspection, it would have taken seconds for him to sign. It is important to note that throughout this period, inspection certificates were issued that were obviously signed by Mr. Simpson.

30Mr. Simpson did not testify. There was no evidence to corroborate Mr. Caughy’s testimony that Mr. Simpson gave Mr. Caughy permission to sign his name at any time. We find that Mr. Caughy issued safety standards certificates and annual inspection certificates that were not signed by Mr. Simpson and therefore were not made by the motor vehicle inspection mechanic who inspected the vehicle, contrary to subsection 90(3) of the Act.

Issuing certificates without inspection by motor vehicle inspection mechanic

31In ground 10 the Director says Mr. Caughy issued safety standards certificates and annual inspection certificates to vehicles despite those vehicles not being inspected by a motor vehicle inspection mechanic, contrary to subsection 90(3) of the Act. Most of the safety standards certificates and annual inspection certificates show John Simpson as the “Inspecting Mechanic”. Mr. Caughy testified that he employed Mr. Simpson as a mechanic. The appellant listed Mr. Simpson as a mechanic on his MVIS station records. Mr. Simpson did not testify. No other witness corroborated Mr. Caughy’s testimony. Officer Marsden said he could find no record of a cheque paying Mr. Simpson for his work although he did obtain Mr. Caughy’s bank records which showed cheques to other employees, including Josh Verkiak and to Caughy Maintenance Services. Mr. Caughy suggested he had another bank account in his cross examination of Marsden but produced no evidence of another bank account or any evidence of payments to Mr. Simpson. Officer Marsden spoke to Mr. Verkiak who confirmed he worked for Mr. Caughy at a different site. Mr. Verkiak told Marsden that he did not know who Mr. Simpson was. On cross examination, Officer Marsden conceded that given that Mr. Verkiak worked at a different site, it was possible that the two mechanics had never met.

32Mr. Simpson’s medical record states that he was born in 1958 and works as a farmer. During the time Mr. Caughy’s MVIS station was operating, Mr. Simpson worked full time at a plant approximately a 2 hour drive away from the property. Mr. Simpson lives approximately 2 hours from the property. He is required to work 12 hour shifts at the plant. Inspector Dienesch testified that an inspection of a trailer would take about an hour to one hour and 45 minutes, depending on the number of axles, an inspection of a motorcycle in good shape would be less than one hour and one hour and 15 minutes for a pickup truck. He stated that a registered apprentice could do some of the work provided a licensed mechanic is watching over the shoulder of the apprentice. Inspector Dienesch said the date on the certificate is supposed to reflect the date of the inspection. By putting the date on the certificate, the inspecting mechanic is certifying that the vehicle meets the requirements on that day. Mr. Caughy said he is a registered apprentice but did not produce his proof of registration. Counsel for the Director submitted that the College of Trades website which records all registered apprentices, does not list Mr. Caughy as a registered apprentice based on his search. Inspector Dienesch testified and his notes confirm that on December 19, 2014, the station equipment on the property appeared to be unused. On cross examination he admitted that the equipment simply might have been clean. Ms. Osmond testified that John Simpson probably did not write his signature on 3 safety standards certificates, 9 annual inspection certificates and the application for the MVIS licence and we accept her evidence for the reasons noted above. Also, for the reasons noted above, the panel does not accept Mr. Caughy’s explanation for these false signatures.

33Mr. Caughy submits that Simpson could work full time on 12 hour shifts in another city, drive approximately 2 hours to the property and then conduct multiple vehicle inspections. The weight of the evidence shows the unlikeliness of this. For example, on September 6, 2013 Simpson’s work schedule shows that he worked a 12 hour night shift at the plant ending at 7 a.m. on the morning of September 6, 2013. On the same day his name is purportedly signed on 9 annual inspection certificates. Ms. Osmond’s testimony is that Mr. Simpson probably did not sign these annual inspection certificates and the panel accepts her evidence as noted above. Based on the testimony of Inspector Dienesch the truck and trailer inspections would take approximately 45 minutes or more to complete, depending on whether the brake drums had been removed and assuming there was no repair work to complete. Mr. Caughy testified that he removed the brake drums before these inspections. Without sleeping, Simpson would have had to work 12 hours from 7 p.m. to 7 a.m., drive some 2 hours to the property, do 9 inspections of approximately 1 hour each and complete or at least supervise any necessary repairs before certifying. Driving some 2 hours back to his home or to the plant, if he slept over at the property as Mr. Caughy suggested, would be in addition. On some occasions, the records show, it appears that Mr. Simpson worked a 12 hour shift, drove for 2 hours and performed only one or two inspections before driving home or back to work. It is unlikely that Mr. Simpson would continue this work pattern, without any payment, for a period of more than 2 years given the demands of his work schedule at the plant. It is more likely than not that Simpson did not perform all of the inspections that are attributed to him. We find that Mr. Caughy issued safety standards certificates and annual inspection certificates to vehicles despite those vehicles not being inspected by a motor vehicle inspection mechanic, contrary to subsection 90(3) of the Act.

Mr. Caughy’s Grounds for Appeal

34In his Notice of Appeal, Mr. Caughy stated he “never received due process – had letters sent from MTO to my customers without any conviction.” The Tribunal is a creature of statute and not a court with broad jurisdiction to review the MTO conduct generally. The Director issued the NOP in accordance with the procedure for doing so in the Act. Mr. Caughy appealed to the Tribunal which held a hearing at his request. The Tribunal hearing is not the forum in which to challenge the letters.

Conclusion

35The legislative intent of the Act and regulations is the protection of public safety. Motor vehicle inspection stations are licensed and required to meet legislative requirements in order to protect the public safety. Mr. Caughy provided no evidence as to how he would operate in the future to avoid the issues identified above. He said at the hearing that he is not in violation of any zoning by law despite the expert planning evidence to the contrary. He attempted to shift the blame to the municipality for not taking any steps to have him cease being in contravention of the by law and to the MTO for making an error in the opening of his MVIS station. We conclude that Mr. Caughy has been at best indifferent to his obligations under the Act as an MVIS licensee or at worst refuses to recognize and comply with his obligations. Mr. Caughy has made a false statement in his MVIS application and provided a false document in his MVIS application in an attempt to satisfy the legislated requirement of proper zoning. The letter that Mr. Caughy fabricated and provided with his application shows a willingness to make a false statement on two levels. Not only is the information contained in the letter designed to mislead the reader into believing that all municipal permissions necessary had been granted but also that the letter was purportedly written by a municipal official when in fact it was written by Mr. Caughy for his own benefit. Mr. Caughy provided this letter as part of his MVIS application in an effort, temporarily successful, to mislead the licensing authority. More importantly, Mr. Caughy has signed Mr. Simpson’s name on annual and safety certificates in circumstances where we have found that Simpson did not perform all the work required of an inspecting mechanic in a licenced MVIS station. This is at odds with the conduct required by the Act and regulations of an MVIS operator in whom both the licensing authority and the public must put their trust. There are two broad grounds for revocation being first the false statements in the MVIS application and second the irregularities in the operation of his MVIS station, either of which, on its own, would be grounds for revocation.

36Based on the totality of the evidence, we find that there are grounds for the proposed revocation. The Director has proven on a balance of probabilities that Mr. Caughy has made a false statement in the application for the licence and in a safety standards certificate signed by the licensee and in a report, document or other information required to be furnished by this Act or the regulations. The Director has also proven on a balance of probabilities that Mr. Caughy has breached the Act and Regulations in the operation of his MVIS.

37We asked both parties to suggest conditions that might be attached to the licence. Neither Mr. Caughy nor the Director did so. In the absence of any submissions by the parties and any evidence that conditions would be effective, we decline to substitute our opinion for that of the Director and impose conditions on the licence. We are of the view that Mr. Caughy cannot be relied on to bring himself into compliance with the Act and to maintain compliance in light of his repeated violations of the Act in the past and his attempts to mislead the Director.

ORDER:

38For the reasons set out above, pursuant to section 95(4) of the Act, we direct the Director to carry out the NOP to revoke the licence of the appellant as a motor vehicle inspection station.

Laurie Sanford, Vice-Chair

Avril A. Farlam, Vice-Chair