An Appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B - to Refuse Registration
DECISION AND ORDER
Adjudicator: Jonathan Batty, Associate Chair
Appearances:
For the Appellant: Self-Represented
For the Respondent: Michael Rusek, Counsel
Heard in Toronto: June 19 and 27, 2018
Introduction
1This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposal issued by the Registrar, Motor Vehicle Dealers Act, 2002 (the “Registrar” and the “Act” respectively). The Notice of Proposal dated December 1, 2016 proposes to refuse to grant the registration of Gordon Mander (the “Appellant”) as a salesperson under the Act.
2The Registrar is proposing to refuse the Appellant’s registration on the basis that the Appellant’s conduct affords reasonable grounds for belief that he will not carry on business in accordance with the law and with honesty and integrity.
3For the reasons set out below, I am not deciding this Appeal until I have submissions from the Appellant and the Registrar regarding the trial outcomes of three charges being heard in Calgary on July 30, 2018.
Background
4The Appellant knows cars, has many years’ experience selling cars in Alberta, and wants to follow his lifelong vocation in Ontario. To do so, he must be registered as a motor vehicle salesperson under section 6(1) of the Act.
5On August 16, 2016, the Appellant submitted his application to the Ontario Motor Vehicle Industry Council (“OMVIC”), which is the organization mandated to register car dealers and salespersons under the Act. He disclosed in his application, as was required, his previous convictions as well as information about pending charges. These details were corroborated in the Police Information Check from the Peel Regional Police, dated August 6, 2016, which he submitted with his application. This document disclosed information about past convictions from just over thirty years ago and, more significantly, pending charges from 2015 for assault and failure to attend court. At the time of his application, there was an outstanding warrant for his arrest in Alberta.
6The proposal of the Registrar at OMVIC to refuse the Appellant’s registration cited, among other matters, these pending charges and the outstanding warrant in Alberta.
7The Appellant appealed the Registrar’s proposal to the Tribunal. On June 8, 2017, the Tribunal granted his registration subject to the following condition. The Appellant was ordered to deal with the outstanding charges against him within 12 months. If he failed to do so, the Tribunal ordered the Registrar could “take further administrative action, including a proposal to suspend or revoke registration as a result of a failure to comply with this term and condition.”1
8The Registrar appealed that decision to the Divisional Court, which granted the appeal and ordered a hearing de novo.
9The Divisional Court held that while the correct test had been cited for determining whether or not to register the Appellant, the Tribunal did not apply the test in a reasonable manner and its conclusion “fell outside of the range of reasonable, acceptable and defensible outcomes available to the Tribunal.”2
10The Divisional Court held the Tribunal’s decision was not reasonable because:
The Appellant’s failure to attend court and deal with the outstanding warrant for an extended period of time raises concerns about his integrity and honesty.
The measure of a registrant’s honesty and integrity extends beyond simply interactions with consumers and includes dealings with OMVIC and the courts.
The Appellant put his personal interests ahead of his legal obligation to obey court orders.
It was contradictory for the Tribunal to find, on the one hand, there were no reasonable grounds to believe the Appellant would not “carry on business in accordance with the law with honest and integrity” and then, on the other, acknowledge he had not addressed these charges for almost two years and impose conditions on his registration to induce him to comply with the law.
11The Divisional Court granted the Registrar’s appeal and considered, but rejected, the remedy of simply upholding the Registrar’s proposal to refuse to register the Appellant. Because the court heard the appeal on February 12, 2018 and as of that date the outstanding charges had not yet been addressed, the court believed it would be unjust for the Appellant’s registration to be refused while he could return to Alberta to address the outstanding charges. The court’s reasons noted the Appellant might well have complied with the warrant and addressed the pending charges between the time court heard the appeal and released its reasons on March 19, 2018.
12Consequently, the Divisional Court held “the proper remedy in this case is to set aside the Tribunal order and order that the matter be remitted for a new hearing before a different Tribunal member. The Tribunal will hold a trial de novo, and may consider any evidence that [the Appellant] has now complied with his legal obligations in Alberta.”3
13A new hearing was scheduled, on consent, to be heard on June 19 and 27, 2018 before me. However, I adjourned the first day of the hearing because the Appellant was not in attendance.
14The hearing resumed on June 27, 2018. At that time, a Recognizance signed by a Justice of the Peace in Alberta, dated February 28, 2018, was entered into evidence by the Appellant, which showed that he had appeared in court in Calgary to address his outstanding charges.
15According to the Appellant a new charge, a trespass to property charge under an Alberta statute, has recently been added to the charges he is facing in connection with the incident that gave rise to his 2015 charge of assault. He also entered into evidence a Scheduling Notice dated April 20, 2018 from the Provincial Court of Alberta that all pending charges are set down for trial on July 30, 2018 in Calgary.
Reasons and Order
16As the Registrar noted in its submissions, the Divisional Court’s decision provides the Tribunal a “road map” to follow in deciding whether or not to uphold the Registrar’s proposal to refuse to register the Appellant. In particular, the court noted the Tribunal may consider evidence relating to whether or not the Appellant has fully resolved his outstanding legal obligations in Alberta.
17The Appellant has addressed the outstanding warrant by setting the pending charges down for trial. He has stated he is going to return to Alberta for the trial at the end of July. It is relevant for the Tribunal to know if the Appellant appears for trial and the disposition of the three outstanding charges.
18The Appellant says he regrets not having addressed these charges before he left Alberta in 2015. Even if it was not the case before he applied for registration, it is very evident he now regrets this serious mistake. His failure to rectify this mistake before now, among other things, has caused the Registrar to oppose his registration because the Registrar doubts the Appellant has sufficient honesty and integrity to “carry on business in accordance with law” as required by s. 6(1)(a)(ii) of the Act.
19It is also relevant for the Tribunal to know if the Registrar’s proposal to refuse the Appellant’s registration will change depending on the disposition of the outstanding charges. The Registrar submitted that if, for example, the Appellant had been acquitted of all pending charges prior to the Tribunal’s June 27, 2018 hearing, the proposal would have been withdrawn.
20To decide this matter the Tribunal needs to know the trial outcomes from July 30, 2018 in Calgary and what submissions the parties have regarding those outcomes.
21Having heard evidence and received submissions on the merits of this appeal, I am seized of this matter.
22For these reasons I am ordering as follows:
- The Appellant and the Registrar will advise the Tribunal in writing by July 20, 2018 of:
a. their availability to resume the hearing of this Appeal for 90 minutes sometime between August 13 and 17, 2018; and
b. whether they wish to resume the hearing in person at the Tribunal’s offices or by way of telephone conference call.
- No later than August 7, 2018 the Appellant will in writing advise the Tribunal and the Registrar about the trial outcomes from July 30, 2018 in Calgary and at the same time provide any court-issued documentation he obtains regarding the disposition of the charges of assault, failure to attend court, and trespass to property.
LICENCE APPEAL TRIBUNAL
Jonathan Batty, Associate Chair
Released: July 13, 2018
Footnotes
- 10602 v. Registrar, Motor Vehicle Dealers Act, 2002, 2017 CanLII 50039 (ON LAT), para. 20.
- Ontario v. Mander, 2018 ONSC 1795, para. 35.
- Ontario v. Mander, para. 39.