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: 2018-01-03

Appeal under Section 10 of the Bailiffs Act, R.S.O. 1990, c. B-2 – Registrar’s Proposal to Refuse Registration

Between:

Kenneth Hudson

Appellant

-and-

Registrar of Bailiffs

Respondent

DECISION AND ORDER

Adjudicator: Theodore Crljenica, Vice-Chair

Appearances:

For the Appellant: Elizabeth Edwards - Paralegal

For the Respondent: Jeffrey Ludlow - Counsel

PLACE AND DATE OF HEARING: TORONTO, ONTARIO, NOVEMBER 27, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1An in-person hearing before the Licence Appeal Tribunal (the “Tribunal”) was held on NOVEMBER 27, 2017, to hear this appeal under Section 10 of the Bailiffs Act, R.S.O. 1990, c. B-2 (the “Act”). The appellant has appealed the proposal by the Registrar of Bailiffs (the “Registrar” or the “respondent”), to refuse registration of the appellant’s application for registration as an assistant bailiff.

2On August 20, 2016, the appellant applied for registration as an assistant bailiff. By letter dated July 31, 2017, the respondent notified the appellant that he, the respondent, was proposing to refuse the application as he had reasonable grounds to believe that if registered as an assistant bailiff, the appellant would not act in accordance with the law and with integrity and honesty.

3The basic facts of this appeal were set out in the parties’ statement of agreed facts:

a. On August 20, 2017, the appellant applied to be licenced as an assistant bailiff under the Act;

b. The Registrar appointed under the Act received and reviewed the appellant’s application;

c. As is the case in every assistant bailiff application the Registrar requested and reviewed the appellant’s Canadian Police Information Centre (“CPIC”) report;

d. Based on the information in the appellant’s CPIC report and information contained in the appellant’s application for registration, the Registrar proposed to deny the appellant’s application.

4The Registrar’s proposal to refuse the appellant’s application was based on the appellant’s lengthy criminal record and a statement in the appellant’s application that the Registrar considered to be false.

5The appellant’s appeal is dated August 14, 2017.

6For the reasons that follow, the Registrar is directed to carry out his proposal to refuse the appellant’s application for registration.

DISCUSSION AND REASONS FOR DECISION

THE BAILIFFS ACT

7Pursuant to section 9.2 (1) of the Act, a person who applies for registration as an assistant bailiff is entitled to registration unless, in the Registrar’s opinion:

a. The person has not complied with this Act or the regulations;

b. The person is not qualified to act as an assistant bailiff; or

c. The past conduct of the person affords reasonable grounds for the belief that the person will not act as an assistant bailiff in accordance with the law and with integrity and honesty.

8Section 10(2) of the Act entitles a person who has received notice that the respondent proposes to deny the application for registration to apply to this Tribunal for a hearing.

9Pursuant to section 10(4) of the Act, after a hearing the Tribunal may by order direct the Registrar 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 ISSUE TO BE DETERMINED

10The issue to be determined is if the respondent had reasonable grounds to believe that the appellant would not act in accordance with the law and with integrity and honesty if he was registered as an assistant bailiff.

THE EVIDENCE

11The only witness to testify at the hearing was the respondent, Shane Gallagher, the Registrar of Bailiffs. He described the duties of bailiffs and assistant bailiffs. Those duties include repossessing property on behalf of creditors, conducting evictions from commercial property and conduct lock-ups. He explained that under the Act assistant bailiffs are under the direct supervision of a registered bailiff. However, the degree of supervision required is not entirely clear, and assistant bailiffs often perform their duties independently, without the oversight of the supervising bailiff.

12It is the Registrar’s practice to obtain and review a CPIC report for every applicant. The CPIC report that the respondent obtained and reviewed in regard to the appellant’s application disclosed the following criminal convictions and sentences:

a. September 1976 – Theft under $200 – conditional discharge and 15 months’ probation;

b. September 1976 – Theft and possession of stolen property – conditional discharge and two years’ probation;

c. November 1978 – Driving while disqualified and dangerous driving - 15 days concurrent on each charge;

d. February 1979 – Possession of stolen property under $200 - suspended sentence and one year probation;

e. March 1981 – Impaired driving - monetary fine;

f. June 1981 – Personation and failing to appear - 90 days on the first count and 30 days concurrent on the second count;

g. May 1982 – Mischief and assault a police officer - monetary fine on the first count and 60 days on the second count;

h. November 1982 – Public mischief - 60 days intermittent and probation;

i. April 1983 – Possession of an unregistered weapon in a motor vehicle, possession of stolen property over $200 and mischief - seven months concurrent on each of the first two counts, and suspended sentence and probation for one year on the third count;

j. May 1983 – Driving with more than 80 mgs of alcohol in blood and public mischief - 30 days intermittent on the first count and one day concurrent on the second count;

k. January 1984 – Aid in being unlawfully at large and mischief to private property - 30 days intermittent and one year probation on the first count, and 15 days consecutive and one year probation on the second count;

l. November 1984 – Assault - 21 days intermittent;

m. November 1988 – Driving while impaired - 90 days intermittent, three years’ probation and driving prohibition for three years;

n. February 1992 – Dangerous operation of a motor vehicle causing death, dangerous operation of a motor vehicle causing bodily harm (2 charges), driving while disqualified, possession of an unrestricted weapon, possession of property obtained by crime under $1000 and possession of narcotics – Three years on the first count; one year concurrent on each of the second counts; six months consecutive on the third count; six months consecutive on the fourth count and a 10 year firearm prohibition; six months concurrent and a driving prohibition for 10 years on each of the fifth and sixth counts;

o. August 2009 – Trafficking in schedule 1 substances – three years and six months and a mandatory weapons prohibition order.

13One of the questions on the application form is whether the applicant has been convicted of an offence under any law of any province, territory, state or country. If the applicant replies in the affirmative, he or she is instructed to provide full details on a separate sheet. The appellant did respond in the affirmative to the question and on a separate sheet disclosed:

I do have a criminal record, which dates from when I was a teenager up until about 1992.

I received a sentence in 1992 for driving offences for which I served a sentence and was paroled and completed without incident, and had no charges for 16 years after that, until making a very bad choice in 2008 which lead to another conviction for a drug offence in 2009. I served a sentence for that and was paroled and completed that sentence without incident as well.

14The appellant’s statement that he had no charges for 16 years is not true. The CPIC report disclosed that in 2006 he had been charged under the Controlled Drugs and Substances Act S.C. 1996, c. 19 with producing a scheduled substance and possession of a scheduled substance for the purpose of trafficking. These charges were withdrawn.

15The respondent’s proposal to refuse to register the appellant was based on his conclusion that there were reasonable grounds to believe that the appellant would not act in accordance with the law and with integrity and honesty. He explained his decision in his July 31, 2017 letter to the appellant:

On your application to be registered as an assistant bailiff you included, in response to Question 9, a short summary of offences under the Criminal Code of Canada where you had been convicted.

A check of the Canadian Police Information Centre (CPIC) that was done by my office confirmed the convictions against you.

Your criminal convictions began in 1976 and continued up to 2009. Several of these convictions relate to stolen property, driving infractions, and dishonest acts such as personation and aiding in being unlawfully at large. Several of these convictions are repeated.

I further note your indication, in the statement you provided regarding your criminal record, that you "received a sentence in.1992 ... and had no charges for 16 years after that." This claim is not borne out by your criminal record, which indicates that you faced three charges which were withdrawn in 2006.

Given the nature and frequency of your criminal convictions, and the false statement in your application, I have reasonable grounds to believe that you will not act as an assistant bailiff in accordance with the law and with integrity and honesty.

I am proposing to deny your application.

16Mr. Gallagher was asked about factors favourable to the appellant’s application. He identified three. One was the lengthy period during which the appellant did not have a criminal conviction (1992 to 2009). Another was that the appellant had a licence from the City of Toronto to operate as a tow truck driver. The third was a positive letter of reference from Peter Warmington of Kay Bailiff and Adjustment. The appellant has worked for Kay Bailiff and Adjustment since about April 2016. In this letter Mr. Warmington stated that the appellant’s honesty and integrity are beyond reproach, and that he highly recommended the appellant for registration as an assistant bailiff.

17There were no other witnesses for the respondent. The appellant did not testify or present any witnesses to testify at the hearing.

ANALYSIS

18The respondent relied on a number of Tribunal decisions in support of his position.

19In Dagonas v. Registrar, Collection Agencies Act, 2013 CanLII 51149 (ON LAT), Vice-Chair Flude stated at paragraph 9:

The application form is a first test of integrity. The Registrar bases registration decisions on information set out in in the form. To mislead the Registrar, as happened in this case raises concerns about future honesty and integrity of the Applicant. The Applicant was not able to testify so the Tribunal’s concerns were not allayed by hearing the Applicant’s version of events.

20A similar comment was made by Member Ritacca in Khan v. Registrar, Collection and Debt Settlement Services Act, unreported, 10643 CDSSA, June 12, 2017.

21The impact of criminal convictions on licensing appeals before the Tribunal was discussed by Vice-Chair Sweeney in Jervis v Registrar, Motor Vehicle Dealers Act, 2002, 2012 CanLII 8247 (ON LAT). She set out four principles established by the courts that this Tribunal must follow:

a. Criminal convictions should be accepted on their face;

b. This Tribunal is entitled to examine the circumstances giving rise to the criminal charges for the purpose of mitigation, but it is not entitled to do so for the purpose of re-litigation;

c. Criminal convictions are highly relevant in determining whether one is more likely than not to conduct his business in accordance with law and honesty and integrity;

d. If the convictions are industry specific in that they arose from one’s work, they should be accorded significant weight in the Tribunal’s deliberations.

22In Ontario (Registrar, Motor Vehicles Act) v Jacobs, 2004 CanLII 9450, the Divisional Court described the Motor Vehicle Dealers Act as consumer protection legislation and at paragraph 84 stated:

The controlling principle in this case must be the promotion of integrity and honesty in the motor vehicle sales industry.

23Like all of the statutes referred to in these cases, the Bailiffs Act is consumer protection legislation and the principles set out in these authorities apply to Mr. Hudson’s appeal.

24Without having heard from the appellant the only evidence on which this Tribunal can decide this appeal is the statement of agreed facts, the documents submitted, and Mr. Gallagher’s testimony.

25The appellant’s criminal record is troubling. Although these convictions did not arise from situations in which he was working as an assistant bailiff, they can provide insight into the appellant’s character and how he might conduct himself in that role.

26The appellant’s record includes numerous convictions related to stolen property: theft under $200, theft and possession of stolen property, possession of stolen property under $200; possession of stolen property over $200; mischief to private property, and possession of property obtained by crime under $1000. The work of an assistant bailiff includes the seizure of personal property of judgment debtors, defaulting tenants and others. Bailiffs and assistant bailiffs are entrusted to seize property and account for it honestly. The appellant’s record is inconsistent with that expectation.

27During the course of their duties assistant bailiffs have to deal with people who may become confrontational. People often resist efforts to seize their personal property or evict them from leased premises. Assistant bailiffs are expected to perform their duties in a professional manner and attempt to diffuse heated situations. The appellant’s convictions for assaulting a police officer, assault, and causing a disturbance are indicative of a penchant to escalate confrontations. His conviction for possession of an unregistered weapon in a vehicle compounds this concern.

28The appellant also has numerous convictions for conduct that directly calls into question his integrity and honesty. These convictions were for personation, failing to appear, mischief, public mischief and aiding another person in being unlawfully at large.

29As for the false statement in his application, as submitted by the respondent, it is fair to infer that the appellant has had enough interaction with the criminal justice system to know the difference between charges and convictions. In the absence of an explanation from the appellant as to why he included this statement in his application, or why he worded it as he did, the Tribunal agrees with the Registrar’s determination that the appellant attempted to be misleading on his application. As stated by this Tribunal in Dagonas the application form is a first test of integrity. An attempt to mislead the respondent raises concerns about future honesty and integrity.

30It may be that the appellant has turned his life around. This hearing was an opportunity for him to explain what he has done to do so or to provide any explanations or mitigating circumstances that might dispel the concerns that arise from his lengthy criminal record. As the appellant did not testify, his criminal record and the statements he made on his application are taken at face value. They provide reasonable grounds to believe that the appellant will not act in accordance with the law and with integrity and honesty if he was to be registered as an assistant bailiff.

ORDER

31The appeal is dismissed. The Tribunal orders the Registrar to carry out the proposal to refuse the registration of the appellant.