Shawan Ahmed Sagar d.b.a. Dhaka Auto Services Inc. v. Director of Vehicle Inspection Standards, 2018 CanLII 104472

Date: 2018-07-05

Appeal under Section 95 of the Highway Traffic Act, R.S.O. 1990, c. H-8 – Director’s Proposal to Refuse Registration

Between:

Shawan Ahmed Sagar d.b.a. Dhaka Auto Services Inc.

Appellant

-and-

Director of Vehicle Inspection Standards

Respondent

DECISION AND ORDER

Adjudicator: Theodore Crljenica, Vice-Chair

Appearances:

For the Appellant: Joseph Kappy, Counsel

For the Respondent: Douglas Lee, Counsel

Place and Date of Hearing: Toronto, ON

May 15, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1An in-person hearing before the Licence Appeal Tribunal (the “Tribunal”) was held on May 15, 2018, to hear this appeal under Section 95 of the Highway Traffic Act, R.S.O. 1990, c. H-8 (the “Act”). The appellant has appealed the proposal (the “current proposal”) by the Director of Vehicle Inspection Standards (the “Director” or the “respondent”), to refuse registration of the appellant’s application for a motor vehicle inspection station (“MVIS”) licence in the name of Dhaka Auto Services Inc. (hereinafter referred to as “Dhaka”) and for registration as a Motor Vehicle Inspection Mechanic (“MVI mechanic”) at Dhaka.

2The appellant previously held an MVIS licence and a personal registration as an MVI mechanic, having operated Shawan Ahmed Sagar d.b.a. Dhaka Auto Service.

3The appellant’s MVIS licence and personal registration were revoked pursuant to a proposal by the Director dated November 26, 2014. The appellant appealed that proposal to this Tribunal. By order dated July 7, 2015 the Tribunal upheld the Director’s proposal to revoke (see 9284 v. Director of Motor Vehicles 2015 CanLII 93792, hereinafter referred to as the “2015 decision”).

4Later in 2015 the appellant applied for an MVIS licence which the Director proposed to refuse. The appellant appealed the proposal to this Tribunal but withdrew his appeal before the matter proceeded to a hearing.

5The current proposal is dated November 17, 2017 and is based on the respondent’s position that he has reasonable grounds to believe that if Dhaka is licenced as an MVIS and the appellant is registered as an MVI mechanic at Dhaka, he would not act in accordance with the law and with honesty and integrity and in a competent manner.

6For the reasons that follow, the Director is directed to refrain from carrying out his proposal.

THE ISSUE TO BE DETERMINED

7The issue to be determined is whether the respondent has reasonable grounds to believe that the appellant would not act in accordance with the law and with honesty and integrity and in a competent manner if he was issued an MVIS licence and registration as a motor vehicle inspection mechanic at Dhaka.

THE RELEVANT LEGISLATION - THE HIGHWAY TRAFFIC ACT

8The provisions of the Act that are relevant to this appeal are:

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;

(b) . . .;

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

(d) . . . .

92 (4) Subject to section 95, the Director may refuse to register a motor vehicle inspection mechanic where, in his or her opinion,

(a) the past conduct of the mechanic affords reasonable grounds for belief that the mechanic will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity; or

(b) the mechanic is not competent to act as a motor vehicle inspection mechanic

95 (1) Where the Director proposes,

(a) to refuse to issue or renew a licence;

(b) to refuse to make a registration; or

(c) to revoke a licence or registration,

the Director shall serve notice of his or her proposal, together with written reasons therefor . . .,

9Section 95 (2) of the Act entitles a person who has received notice that the respondent proposes to deny the application for registration or a licence to apply to this Tribunal for a hearing.

10Pursuant to section 95 (4) of the Act, after a hearing the Tribunal may by order direct the Director to carry out the proposal or refrain from carrying out the proposal and to take such action as the Tribunal considers the respondent ought to take.

THE EVIDENCE OF THE RESPONDENT

11The respondent did not call any oral evidence in support of the current proposal but rather relied on the findings of fact made by this Tribunal in the 2015 decision. The appellant did not dispute the Tribunal’s findings of fact and acknowledged that those facts shifted to him the evidentiary burden. Based on this, I have taken into consideration the findings in the 2015 decision as well as the appellant’s evidence in order to determine if the grounds for refusal have been met.

12The findings from the 2015 decision were:

It is clear from all of the 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 (sic) 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 [Director’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, the 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.

THE EVIDENCE OF THE APPELLANT

13The appellant testified. After some introductory information his evidence was focused on the things he has done since the 2015 decision to improve his knowledge and understanding of the safety standard requirements of the Act and regulations.

14In 2002 he came to Canada from Bangladesh where he was a licensed mechanic, having completed the courses and training required in that country. Here, he attended Centennial College in Toronto where he completed an automobile technician course over four years on a part-time basis. The appellant identified his current licences which include automobile service technician, emission repair technician and emission inspector. He has had no regulatory violations other than those that were the subject matter of the 2015 decision.

15As a result of the appellant’s conduct that was the subject matter of the 2015 decision he was also charged under the Act and paid fines totalling at least $6500.

16After losing his MVIS licence in 2015 the appellant has studied the “brown book” (the Ministry’s vehicle safety inspection manual) which came into force in 2016. He also viewed an online course presented by Bob Lickers who is a Ministry enforcement officer.

17The appellant’s explanation for the majority of the violations that led to the 2015 decision was that he was not familiar with automobile-related rust issues from his time as a mechanic in Bangladesh as rust does not affect motor vehicles there. Further, the effect of rust on motor vehicles was not taught in the courses he took at Centennial College, nor was it dealt with on the government’s licencing exam.

18Since the 2015 decision the appellant has studied the brown book to learn about how rust can affect motor vehicle safety. He explained, in some detail, what he had learned about rust, and exhibited his knowledge by explaining specific requirements and specifications including the amount of rust, in millimetres, permitted on various automobile parts beyond which the parts must be replaced.

19In the 2015 decision the appellant was found to have violated the record-keeping requirements of the Act and regulations. He testified that he has studied the new record-keeping requirements for MVIS licensees and provided specific examples of what information is to be recorded.

20Another of the violations that led to the 2015 decision was the appellant having allowed someone who was not licenced as a MVI mechanic to sign a safety standards certificate. The appellant explained that he had done the inspection but had not signed the certificate. He had to take his child to school and asked an employee to sign the certificate, not knowing that this was not permitted.

21The appellant concluded his testimony by explaining how the revocation pursuant to the 2015 decision has affected his self-respect.

22In cross-examination the appellant agreed that he had allowed several vehicles with damaged brake lines to pass their safety inspection, and agreed that for purposes of a safety inspection it does not matter whether the damage to the braking system was caused by rust or other reasons.

23When asked if he felt that because rust-related issues would not be on the exam he did not study it, the appellant responded that he would have worried about it more if it was going to be on the exam. Apparently to allay any suggestion that the appellant was placing the blame on the Ministry of Transportation for his failure to understand the impact of rust on motor vehicles, respondent’s counsel obtained the appellant’s agreement that neither the Ministry nor the Ontario College of Trades are responsible to educate the appellant.

24The appellant also agreed that Mr. Licker’s on-line course the appellant took was on YouTube and that he was not tested on the video nor did he receive a certificate of completion of the course. When asked if he took any college or other formal courses on the new regulations, the appellant responded that he contacted different colleges and was told that they were not offering such a course. He also acknowledged that he did not take a test to determine his knowledge of the new regulation.

25When the appellant was asked if he took a course on the new regulation offered by the Automotive Aftermarket Retailers of Ontario (“AARO”) he responded that he was not aware that this organization was offering such a course.

26In his closing submissions, counsel for the respondent referred to the findings of fact in the 2015 decision, with specific reference to the determination that the appellant issued safety certificates that should not have been issued at all or without additional repairs. This posed potential risks to the public. Counsel also referred to the Tribunal’s finding that the appellant’s lack of knowledge of the requirement to do a complete repair in accordance with the regulations is not an acceptable excuse.

27In regard to the rust-related issues as determined by this Tribunal in the 2015 decision, counsel submitted that the appellant’s knowledge of rust related issues is not relevant as he acknowledged in cross-examination that a defect that renders a motor vehicle unsafe can be a result of rust or other causes and should not have passed inspection.

28It was also submitted by the respondent that the evidentiary burden is on the appellant to prove he will apply the regulations with rigour and he has not provided such evidence. He has watched Mr. Lickers’ YouTube video and done some self-study but he has not provided any objective evidence of his knowledge, such as having passed an exam. As a licensed mechanic the appellant could have made arrangements with another mechanic to perform safety inspections under the authority of the other mechanic to be able to show that he can establish that he can apply his knowledge.

29In conclusion, the respondent submitted that if the Tribunal requires the Director to license the appellant as an MVIS and to register him as an MVI mechanic, he will be operating the station without oversight. As was demonstrated in the 2015 decision he should not be allowed to do so and the Director should be allowed to carry out his proposal to refuse licensing and registration.

30In response, counsel for the appellant submitted that as found in the 2015 decision the appellant’s misconduct was a result of a lack of knowledge and that since that time he has educated himself on the new regulation and on the effect of rust on automobiles. There is no evidence of any other steps he could have taken to learn about the new regulation and about rust. It was submitted that the appellant came across as a sincere witness who will use his knowledge to comply with the requirements of the regulation.

31In conclusion, it was the appellant’s position that he has acknowledged his mistakes, paid his fine and rehabilitated and educated himself as encouraged by the Tribunal in its 2015 decision in order to pursue licensing as an MVIS and registration as an MVI mechanic.

ANALYSIS AND DECISION

32The focus of the respondent’s case is the conduct of the appellant that resulted in the 2015 decision by which Dhaka’s MVIS licence was revoked as was the appellant’s registration as a MSI mechanic. The Tribunal’s findings of fact in the 2015 decision were the only evidence led by the respondent. There the Tribunal found that the appellant had issued inspection certificates for vehicles that should not have received certificates. This posed a potential risk to the public. He allowed safety certificates to be issued by an unauthorized/unlicensed worker, had repair work done offsite and by others, and kept insufficient records all of which contravened the Act and regulations. The particulars of the evidence that supported those findings appears under the heading “Evidence” in the 2015 decision. However, the Tribunal also accepted the appellant’s explanation for the violations. For ease of reference I will reproduce the relevant parts of the Tribunal’s reasons from pages 4 and 5, above:

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.

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 (sic) 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.

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, the 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.

33I am satisfied that in the 2015 decision the Tribunal found that the appellant’s violations were caused by a lack of experience with rust in Bangladesh and a lack of understanding of the regulations and not due to a lack of honesty or integrity. I base this finding on the following excerpts from the 2015 decision.¹:

a. 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;

b. . . . the fact that [the respondent] 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; and

c. . . . the 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

There are some comments that may be seen as calling into question the extent to which the Tribunal accepted this evidence:

d. . . . that [the appellant] may not have fully understood or appreciated the potential impacts, or hazards, to a vehicle . . .;

e. If the Tribunal accept (sic) the Appellant's testimony that he did not understand the inspection requirements and what conditions should not pass the inspection, . . .; and

f. In summary, the Tribunal's conclusion is that while the Appellant may well not have had a full understanding of the Act and regulations, . . .

Despite these comments, I am satisfied that on the whole, the Tribunal, in the 2015 decision did accept the appellant’s explanations and that the appellant’s lack of knowledge and understanding of the regulatory requirements were a matter of “competence”.

34Thus, the question to be determined is whether the appellant has established that he has taken adequate steps to overcome the shortcomings in his knowledge of the Act and regulations such that if he is granted the MVIS licence and registration as an MVI mechanic he will conduct himself in accordance with the law, with honesty and integrity, and in a competent manner.

35I will begin by stating that I accept the appellant’s testimony in its entirety. I found him to be a sincere and credible witness.

36I accept the appellant’s testimony that he has studied the new regulations, including the provisions relating to rust-related safety issues. I also accept that he watched a YouTube video on the new regulations which was posted by a Ministry inspector. It was also his testimony that he has studied the new record-keeping requirements for MVIS licensees and provided specific examples of what information is to be recorded.

37Throughout his testimony the appellant referred to specific requirements and specifications including the applicable measurements required of various automobile parts in order to pass a safety inspection. He also testified about his current knowledge of the record-keeping requirements of the Act and regulations. He was not cross-examined on the accuracy of any of this evidence or generally on other requirements or specifications of the regulation. Nor did the respondent tender any evidence to indicate that the appellant’s testimony in this regard was incorrect. In the absence of any evidence to the contrary I accept that he is knowledgeable on the new regulation and in regard to rust-related safety issues and will operate the MVIS and conduct himself as an MVI mechanic in accordance with the law as he is now knowledgeable on the requirements of the Act and regulations.

38The respondent submitted that the appellant has not taken sufficient steps to educate himself in that he has not taken a formal course on the new regulations or about rust-related issues, has not taken an exam to establish that he actually knows the requirements of the new regulations and failed to make arrangements with a licensed MVIS to put his knowledge into practice. The respondent also submitted that neither the Ministry nor the Ontario College of Trades are responsible to educate the appellant, to tell him what courses to take or where a course is being offered. I accept the accuracy of counsel’s submission on this point but it is not sufficient for the respondent to submit that the appellant should have taken a course and/or written an exam without leading evidence that such a course exists or an exam can be taken to test one’s knowledge of the new regulations or about rust-related issues. The appellant testified that he contacted a number of colleges in an effort to enrol in a course on the new regulations but could not find a college that offered such a course.

39In cross-examination the appellant was asked if he looked into courses offered by the AARO, to which he responded that he did not and that he was not that aware that this organization offered courses. The respondent did not tender any evidence that AARO offers courses or if it does, whether such courses address the issues addressed in the 2015 decision.

40It might have been wise for the appellant to have made arrangements with a licensed MVIS to apply his knowledge under the eye of a registered MVI mechanic but in my view, this is not a bar to the appellant’s application. He already knows his way around automobiles as he has worked as an automobile technician in Ontario since 2007. What was lacking was his knowledge of the standards to apply when inspecting a vehicle for safety certification.

41I am somewhat concerned about the comment in the 2015 decision that, “there was no evidence to indicate the Appellant instituted any operating changes following the 2013 conviction for not keeping adequate records”. Nowhere in the 2015 decision was there a finding of fact as to whether this was a result of a lack of knowledge or lack of honesty, integrity and/or incompetence. I suspect that it was not due to a lack of knowledge given the 2013 convictions. However, in considering the entirety of the evidence this concern is not sufficient to cause me to find in favour of the respondent.

42If the respondent limits his consideration of the appellant’s current applications to only the grounds that led to the 2015 revocations, he would have reasonable grounds to believe that the appellant would not operate the MVIS, or in the capacity of a MVI mechanic, act in accordance with the law and with honesty and integrity and/or that the appellant is not competent to operate an MVIS. However, the facts that existed in 2015 do not apply in perpetuity to disqualify someone such as the appellant from applying for and obtaining an MVIS licence or MVI mechanic’s registration. Consideration must be given to the appellant’s circumstances at the time of application including the steps he has taken since the 2015 decision to correct the issues and improve his skills that led to the 2015 revocations.

43I accept the appellant’s testimony that he has learned a lot from the brown book and Mr. Licker’s video and that he has learned his lesson (probably triggered, at least in part, by the $6,500 fine, which is the part of the purpose of sentencing) to ensure that he is fully aware of the requirements of the Act and regulations. There is little, if any, evidence to challenge the veracity of the appellant’s evidence.

44Considering the entirety of the evidence, I am not satisfied that the respondent Director has reasonable grounds to believe that the appellant will not operate the MVIS or act as an MVI mechanic in accordance with the law and with honesty and integrity and/or that the appellant is not competent to operate an MVIS or act as an MVI mechanic.

45No submissions were made as to conditions that might be placed upon the appellant should this appeal be allowed. As such, no order is made regarding conditions on the licencing and registration of the appellant.

ORDER

46The Tribunal orders the Director to refrain from carrying out the proposal to refuse the appellant’s application for registration as a Motor Vehicle Inspection Mechanic or his application for a licence for a Motor Vehicle Inspection Station under the Act

Footnotes

1. 1My emphasis throughout this paragraph.