Marcel Motors Ltd. o/a Eastside Better Used Cars v. Registrar, Motor Vehicle Dealers Act, 2002, 2018 CanLII 105111

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: 2018-01-15

Appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002 to Revoke Registrations

Between:

Marcel Motors Ltd. o/a Eastside Better Used Cars and Nitin Chopra

Appellants (Respondents on Motion)

and

Registrar, Motor Vehicle Dealers Act, 2002

Respondent (Moving Party on Motion)

DECISION AND ORDER ON MOTION

Panel: Ted Crljenica, Vice-Chair

Appearances:

For the Appellant: Michael Burokas, Counsel

For the Respondent: Justin M. Jakubiak, Counsel

Place and date of motion hearing: By teleconference:

January 5, 2018

REASONS FOR DECISION AND ORDER ON MOTION

A. OVERVIEW:

1The appellants appealed the proposal of the Registrar, Motor Vehicle Dealers Act, 2002 to revoke the registration of Marcel Motors Ltd. o/a Eastside Better Used Cars as a motor vehicle dealer and the registration of Nitin Chopra as a motor vehicle salesperson under the Motor Vehicle Dealers Act, 2002 (the “Act”).

2The hearing is scheduled to be heard at the Tribunal’s Offices in Toronto on January 30, 2018, January 31, 2018, February 1, 2018 and February 2, 2018.

3The respondent has requested to change the venue of the hearing from Toronto to Ottawa to minimize the inconvenience to the eight consumer witnesses upon whose testimony the respondent intends to rely. All eight live in or around Ottawa. In addition, the corporate appellant carries on business in Ottawa and the individual appellant works as a motor vehicle salesperson in Ottawa.

4For the reasons that follow, the respondent’s motion for a change in venue is granted. In addition, the hearing will be adjourned to new dates to be set in accordance with the order, below.

B. THE BACKGROUND TO the MOTION:

5The case conference in this appeal was held on August 4, 2017. Mr. Jakubiak appeared on behalf of the appellants. Michelle Samaroo, in-house counsel with the Ontario Motor Vehicle Council appeared on behalf of the respondent in place of Mr. Burokas who has carriage of the file for the respondent.

6The parties disagree as to whether the hearing venue was discussed during the case conference. In her affidavit, Ms. Samaroo deposed that she did not recall it being discussed. She also deposed that had it been discussed she would have sought an order that the hearing should be held in close proximity to the appellants and the civilian witnesses. She attached to her affidavit a memo she sent to Mr. Burokas summarizing the case conference discussions. Her memo is quite detailed. There is no reference in the memo regarding the venue for the hearing.

7Mr. Chopra, the individual appellant submitted an affidavit in response to the moving party’s motion material. He deposed that he participated in the case conference with his counsel and specifically recalls Mr. Jakubiak requesting that the hearing be held in Toronto. He wanted the hearing to be held in Toronto because his legal counsel practices there. He submitted that having to pay for his counsel’s travel and accommodation expenses would cause the appellants significant financial hardship.

8Pursuant to the Order and the Case Conference Report issued by the Tribunal on August 31, 2017, the hearing was scheduled to be heard at the Tribunal’s Offices in Toronto.

c. THE PARTIES’ SUBMISSIONS:

9Among the particulars alleged by the respondent in support of the proposal to revoke the aforementioned registrations are:

a. On multiple occasions, the appellants failed to pay out liens on vehicles traded in by consumers despite the individual appellant having told the consumers that the liens would be paid out by the corporate appellant;

b. On multiple occasions, the corporate appellant sold warranties to consumers and failed to submit the payments collected from consumers to the suppliers of the warranties within seven days of the sales, contrary to section 47 of Ontario Regulation 333/08.

10The appellants have admitted these allegations.

11In support of its motion, the respondent submitted:

a. Ms. Samaroo’s evidence should be accepted over that of Mr. Chopra. She has experience in attending case conferences before the Tribunal and would have opposed a request for the hearing to be held in Toronto because of the presence of eight witnesses and the appellants in the Ottawa area. Further, the absence of any reference in her memo to Mr. Burokas about the venue for the hearing indicates that it was not discussed at the at the case conference;

b. The scheduling of this hearing in Toronto was a mistake as the Tribunal’s normal practice is to schedule the hearing in the community where an appellant resides or carries on business;

c. The respondent overlooked the reference in the August 31, 2017 Order and the Case Conference Report that the hearing would be held in Toronto. Counsel noticed it in mid-December while preparing for the hearing.

d. The appellant’s admissions about the failure to pay out the liens and/or failure to submit the warranty payments to the warranty providers does not eliminate the need for the respondent to call the eight witnesses who live in the Ottawa area. The testimony of the consumers is necessary to convey to the Tribunal the human element of the impact that the appellants’ conduct had on the affected consumers.

12The appellants opposed the respondent’s request on the following basis:

a. During the telephone case conference held on August 4, 2017, the appellant proposed that the hearing be held in Toronto and respondent’s counsel did not object;

b. Mr. Chopra’s evidence, that at the case conference, the parties discussed holding the hearing in Toronto should be accepted over Ms. Samaroos’ evidence as the case conference was an important and unique event for Mr. Chopra. As such he is more likely than Ms. Samaroo to recall the details of the parties’ discussion;

c. The appellant made this request to avoid the cost of counsel’s travel time, expenses and accommodations which would cause financial hardship to the appellants;

d. Seeking a change of venue less than one month prior to the hearing adds to the appellants’ financial hardship. Had they known in August 2017 that they would have to incur these expenses, they would have started saving money to pay the additional expenses;

e. The respondent should not require some or all of its intended witnesses as the appellant has admitted the facts alleged in the respondent’s proposal to revoke the registration of the appellants in regard to the non-payment of the liens and the failure to submit warranty payments to the warranty providers.

D. DISCUSSION AND Analysis:

13Pursuant to the Tribunal’s normal practice, this in-person hearing would have been scheduled to be held in Ottawa. Regardless of what was discussed at the case conference, the respondent had received by early September 2017 the Order and Case Conference Report identifying Toronto as the place of hearing. Had the respondent noticed this, it could have brought its motion well in advance of the hearing. However, this oversight occurred and the question is what should be done as a result.

14Notwithstanding the appellants’ admissions regarding the lien payouts and the warranty payments, the respondent intends to put before the Tribunal the evidence of eight consumers in regard to the impact the appellants’ conduct had on them. If there are to be any rulings with respect to the relevance of such evidence, they should be made by the Tribunal member hearing the case, not by me on a motion to change venue. Thus, there are eight consumer witnesses who will be inconvenienced by being summoned to testify at the hearing. The inconvenience to such a large number of consumer witnesses should be kept to a minimum. This is best achieved by holding the hearing in Ottawa and an Order to that effect will issue.

15However, doing so creates a financial predicament for the appellants. They are entitled to counsel of their choice, Mr. Jakubiak. Due to the change in venue, they unexpectedly have to pay for counsel’s travel and accommodations. The financial impact that the change in venue has on the appellants can be mitigated by adjourning the hearing scheduled to begin on January 30, 2018, and an order will issue to that effect. This will allow the appellants’ time to save money for these unexpected expenses.

H. ORDER

16The Tribunal Orders:

a. The hearing scheduled for January 30, 2018, January 31, 2018, February 1, 2018 and February 2, 2018 is cancelled and adjourned to dates to be set in accordance with paragraph c below.

b. The hearing will take place in Ottawa, Ontario;

c. The parties are directed to provide the Tribunal within two weeks of the date of this Order, three mutually agreeable four-day blocks of dates from which the Tribunal can select new hearing dates.