An Appeal from a Notice of Proposal of the Director of Vehicle Inspection Standards, under the Highway Traffic Act, R.S.O. 1990 c.8, to Refuse a Licence.
Between:
Alexander Kates dba Straightline Automotive
Appellant
and
Director of Vehicle Inspection Standards
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Avvy Go
APPEARANCES:
The Appellant: Alexander Kates
Counsel for the Respondent: Patrick Moore
HEARD in Niagara Falls: July 12, 2018
REASONS FOR DECISION AND ORDER
1By Notice dated March 8, 2018, the Director of Vehicle Inspection Standards (the “Director”) proposed to refuse to issue a Motor Vehicle Inspection Station (“MVIS”) licence to the Appellant and his registration as an MVIS mechanic.
2The Appellant appeals that decision to the Tribunal.
3In summary the grounds set out in the Proposal are that, based on violations during the Appellant’s participation in the MVIS program, the Director has reasonable grounds for belief that the Appellant will not operate a motor vehicle inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity.
4For reasons set out below, I allow the appeal and order the Director to reinstate the MVIS licence to the Appellant as well as his registration as an MVIS mechanic.
Evidence and Facts
5The Appellant is a mechanic and the owner of a garage which he operates as a sole proprietor. The Appellant first obtained his MVIS licence in 1998.
6During its first 7 years of operation, the Appellant’s MVIS had a clean record. He received his first warning for a violation under the Highway Traffic Act (the “Act”) in 2005. Between 2007 and 2016, the Appellant received a couple of warnings and one conviction under the Act. It was in 2017 that things seemed to get out of hand, with the Appellant being charged and subsequently convicted in 2018 of various offences under the Act. The convictions and warnings given to the Appellant were set out in the Notice of Proposal as follows:
Convictions:
Two convictions under clause 90(3)(a) of the Act entered on January 5, 2018;
Fifteen convictions under clause 10(1)(a.1) of Regulation 601 (Motor Vehicle Inspection Stations) entered on January 5, 2018;
One conviction under clause 4(1)(c) of Regulation 601 entered on January 5, 2018;
Three convictions under clause 10(1)(b) of Regulation 601 entered on January 5, 2018;
One conviction under clause 90(3)(a) of the Act entered on June 18, 2008; and
One conviction under clause 10(1)(b) of Regulation 601 entered on June 18, 2008;
As will be discussed in greater details below, a number of the convictions in 2018 arose from complaints from public members about the inspection and repair work conducted by the Appellant on their vehicles. The Appellant was convicted of improperly issuing safety standard certificates, and failing to prepare work orders and reports as required by the Act and its Regulations.
In addition to the above noted convictions, the Appellant has also received a number of warnings:
Issued on February 1, 2018 for violations 91(1) of the Act;
Issued on February 1, 2018 for a violation of clause 10(1)(b) of Regulation 601;
Issued on June 21, 2016 for a violation of clause 90(3)(a) of the Act;
Issued on June 21, 2016 for a violation of clause 4(1)(c) of Regulation 601;
Issued on February 7, 2007 for violations of section 91(1) of the Act; and
Issued on August 25, 2005 for a violation of clause 90(3)(a) of the Act.
Respondent’s Evidence
7The evidence of the Respondent was comprised of books of documents (Exhibits 3 and 4) and the testimony of Ministry of Transportation employee Mark Horton. Mr. Horton has been working as a transportation enforcement officer since 1997, and for the most part, he has been the officer who issued the warnings and charges against the Appellant.
8Mr. Horton testified to some of the requirements that licensees of MVIS must meet, including the requirements to have proper mechanical hand tools, and the requirements to keep proper records for the inspections that have been conducted.
9One of the functions of a licensed MVIS is to issue safety certificates for used cars after the vehicles have been inspected and any repair issues have been identified and fixed. Two signatures are required for these certificates, one from the mechanic who did the inspection and the other one from the licence holder of the MVIS. In the case at hand, as the Appellant operates as sole proprietor, he is both the mechanic and the licence holder, and is therefore allowed to sign as both.
10Mr. Horton also explained that as of July 1, 2016, new Light Duty Vehicle Inspection Standards came into effect, which impose additional standards on MVIS licence holders. One of the requirements is a report, called a light duty vehicle inspection report, which needs to be given to the customer by the mechanic who conducts the inspection. The mechanic is also required to prepare a work order showing the kind of repairs that he or she has recommended.
11Mr. Horton testified that an MVIS licence expires yearly on December 31 and needs to be renewed on an annual basis. To renew a licence the Ministry of Transportation will send a renewal application to the garage around October. The licensee is required to display the licence on the wall.
12In this case, Mr. Horton sent a “flag” to the Ministry about the Appellant’s licence because it was not renewed on time. He also testified he flagged the Appellant because his office had received a number of complaints about the Appellant’s station in 2017. In fact, Mr. Horton said in his oversight of hundreds of stations in the Hamilton-Niagara region, he had rarely seen so many complaints filed against one station.
13Mr. Horton testified with respect to some of the complaints he received, including six in 2017. Two of them in particular led to several convictions of the Appellant. These complaints were filed by members of the public who had their car inspected by the Appellant and had a safety certificate issued, but later on discovered defects in their vehicle.
14As Mr. Horton explained, after the complaints were received, he met with the complainants to inspect their vehicles and the repairs that were done. Based on such factors as the nature of the defects, the number of days and the mileage driven since the inspection by the MVIS, Mr. Horton would decide whether the defects were more likely to have been caused before or after the inspection. If they occurred after the inspection, then the defects were not attributed to the mechanic who did the inspection. Based on his assessments, Mr. Horton determined some, but not all, of the defects occurred prior to the inspection and ought to have been dealt with by the Appellant. Because of these defects, Mr. Horton concluded that the Appellant should not have issued a safety certificate without addressing these issues first.
15Mr. Horton further testified that he visited the Appellant’s garage and asked to review the books and reports regarding the inspections done. He discovered that the Appellant had either not produced or kept any of the reports and work orders required for such inspections. He estimated there were at least 80 violations because the Appellant had not kept any reports or work orders relating to those inspections. Mr. Horton testified that the Appellant told him he did the inspections for cash and therefore did not keep records of those. In the end, Mr. Horton only issued charges that arose from the complaints he received and was able to follow up on.
16In addition to the improper issuance of safety certificates and the failure to keep proper records, the Appellant was warned and charged because of an out-dated headlight aimer that the Appellant was using.
17The Appellant was also given a warning for an improper sticker that he had applied to a taxi he inspected in 2016.
Appellant’s Evidence
18Most of the Appellant evidence was to explain what happened in his personal life between 2016 and 2017. During that time, the Appellant was going through a very acrimonious custody battle with his former spouse. The Appellant had a prior relationship from which he has three children who are now adults. He also has a child – now six years old - from the second relationship. The Appellant testified that his former spouse, who is his youngest son’s mother, has substance abuse issues, and Children’s Aid had been involved. For over two years, the Appellant fought to gain custody of his son, who was developing serious behavioural and other problems due to the lack of care from the child’s mother. The Appellant attended court 27 times over a two and a half year period. The Appellant got temporary custody of his son on March 16, 2016, but the final custody order was not issued until June 15, 2018.
19As he was going through this very trying period, the Appellant knew he needed help. He hired a mechanic. He trusted the mechanic to take care of the paperwork, including the renewal of the MVIS licence. The Appellant testified that he only realized the licence was not renewed when Mr. Horton came to see him at the garage. The Appellant said he told Mr. Horton about his difficulties, and he felt that the latter was sympathetic towards him, which was why the Appellant decided not to fight the charges.
20The Appellant admitted that with respect to one of the vehicles which was the subject of complaint, he did not do a proper job. But he took issue with some of Mr. Horton’s findings on several grounds. In one case, for instance, the Appellant suggested that the defect could have been caused by the vehicle hitting the curb. In addition, one of the defects was a cracked windshield. The Appellant testified that he expected the owner to have it dealt with by ordering from a company that provided windshields, and in any event it was not a safety matter.
21The Appellant further testified that he did not have the money to buy a new headlight aimer because of the difficulties he was going through at the time, while still having the responsibility to support the three children from his previous relationship in addition to his six years old.
22With all this going on, the last thing on his mind was the paperwork, the Appellant testified. The Appellant also pointed out that the new regulation governing MVIS came in at the same time in June 2016 while he was trying to deal with everything all at once. He was working 16 hours a day, while having to care for his son and attend to the legal custody matter. He testified he was doing everything he possibly could.
23The Appellant testified that after he realized his licence had not been renewed, he went to the Ministry to apply to renew his licence. He said Mr. Horton did not tell him that his MVIS licence would not be renewed, only that the Appellant could not be a signing authority. The Appellant produced, as evidence, a MVIS licence issued by the Ministry with an expiry date of December 31, 2018. He also entered as evidence a List of Registered Technicians for Straightline Automotive issued by the Ministry, which shows that “0” technicians were listed.
24Finally, the Appellant called as a witness, Mr. R.A. Mr. A. testified that he was hired by the Appellant as an office manager in August, 2016 and worked there until approximately three months prior to the hearing. Mr. A. is a retired mechanic. At the Appellant’s shop, his main duty was to look after the paperwork (paying bills, dealing with customers, etc.) and occasionally he offered an opinion about a repair that needed to be done. Mr. A. testified he was aware of the custody battle that the Appellant was involved with for about three years. Mr. A. said that he had produced a number of the reports for the inspections that were done at the garage, but because he was not in the office on the day Mr. Horton visited, the Appellant was not able to show the officer the reports he had produced.
The Law
25The pertinent sections of the Act are sections 91(8) and 95(4), which state as follow:
Revocation of Licence
91(8) The Director my revoke or refuse to renew a motor vehicle inspection station licence where,
(a) any person has made a false statement in the application for the licence or a renewal thereof or in any safety standards certificate signed by the licensee or a person authorized in writing by the licensee or in any report, document or other information required to be furnished by this Act or the regulations or any other Act or regulation that applies to the motor vehicle inspection station;
(b) any inspection authorized by the licence is incompetently performed;
(d) there is a breach of a condition of the licence;
(e) the licensee does not comply with this Act or the regulations;
Power of Tribunal where hearing
95(4) Where the applicant, licensee, registrant or proposed registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and shall hold the hearing may by order direct the Director to carry out his or her proposal or refrain from carrying out his or her proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act and the regulations, and for such purposes the Tribunal may substitute its opinion for that of the Director.
26The onus is on the Director to establish reasonable grounds for the belief that the Appellant will not operate the inspection station in accordance with law and with honesty and integrity.1
27The Director relies on the string of offences and convictions set out above to form the basis for a belief on reasonable grounds that the Appellant will not carry on business in accordance with the law and with honesty and integrity.
Issue
28The issue before me is whether the past conduct of the Appellant provides reasonable grounds for the belief that he will not operate a motor inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity.
Submissions from Parties
29The Respondent took the position that there has been substantial non-compliance with the Act by the Appellant with a high number of serious violations dating back to 2005. The Respondent also argued that these violations have been proven by virtue of the convictions in court, and the Appellant cannot re-litigate those matters because of res judicata - a legal principle that means a matter for which there has been a final judgment should not be relegated.
30The Respondent pointed out that the two of the six public complaints in 2017 were particularly serious, and there were multiple problems with both certifications, which came down to the matter of public safety. Further, the Respondent submitted that the Appellant was warned about the improper tool equipment he was using in 2016, yet he failed to correct the problem in a timely fashion which led to his subsequent charge and conviction. The Respondent argued these serious breaches point to a fundamental failure of the Appellant to follow his obligation as a licensee and a mechanic.
31The Respondent argued that the Appellant obtained the MVIS (with the December 31, 2018) expiry date under false pretences since he had already been told that his licence would not be renewed.
32Finally, the Respondent said that the custody matter is not an adequate explanation for the Appellant’s failure to follow statutory requirements. There are a number of people in the MVIS program that have to go through family issues, and there is no connection between the personal and professional lives of the mechanic.
33For his part, the Appellant took exception to the Respondent’s suggestion that his family matter has nothing to do with his work as a mechanic. The Appellant acknowledged that there were two bad safety matters that he handled over a period of twenty years, which took place during a time of disruption in his life. The Appellant said his family issue is not an excuse for his past mistakes, however, these mistakes took place during a time of disruption of his life. Looking from that perspective, it is not an issue of public safety.
34The Appellant said he was not in a mind to argue or fight the charges. He missed some of the defects, and he felt terrible about it. Missing these defects, however, does not make him a bad mechanic. Finally, the Appellant said he has been a mechanic for many years. He has inspected thousands of cars over the years and no one has ever been hurt as a result of his inspection. The Ministry’s decision not to renew his licence has a huge impact on his life and he has suffered financial hardship. The Appellant pleaded that if given another chance, he would “straighten up”.
Analysis
35As noted above, the onus is on the Respondent to show that the Appellant’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with the law and honesty and integrity.
36Looking at the Appellant’s past conduct, I find that the Appellant has a long history of working as a mechanic and operating a MVIS. For many years, there was no recorded infraction on the part of the Appellant, other than the warnings in 2005 and 2007, and one conviction in 2008.
37The Appellant’s conduct became a real problem towards the end of 2016 and during 2017, when he was battling for the custody of his young son. Whether or not the Appellant had grounds to challenge those charges at the time, in my view, is not relevant. I accept the Respondent’s submissions that once entered, the convictions by the Court can and should be accepted by this Tribunal as evidence of violations by the Appellant of the Act. Besides, the Appellant himself also admitted that he had made some mistakes which he regrets.
38With respect to the new licence that was issued to the Appellant earlier this year, I do not accept the Respondent’s argument that the Appellant obtained the licence by false pretence, for two reasons. First, the Respondent’s own witness, Mr. Horton testified that the licence was issued “by mistake” because the local office did not catch the “flag” that was placed in the Appellant’s file. Second, as shown in the “List of Registered Technicians”, the Appellant did not put his name down as a mechanic, knowing that his own licence was being suspended as a result of the charges that were laid against him.
39In order to determine whether the Appellant’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with the law and honesty and integrity, the main issue for me is whether the past convictions in this case were indicative of a lack of honesty and integrity on the part of the Appellant, or whether they were a result of other migrating factors. I conclude, for the reasons set out below, that there are enough mitigating factors to warrant the granting of the appeal.
40The Appellant’s evidence that he was engulfed in a serious custody battle between 2016 and early 2018 was unchallenged. It was also corroborated by the evidence of his witness. Further it was during this same time period that new regulations came into force with respect to MVIS licences, when the Appellant was pre-occupied with his family issue as opposed to keeping himself up to date on the regulations. While the family situation of the Appellant is by no means an excuse for not following the law, I disagree with the Respondent that it has no bearing on the Appellant’s life as a professional mechanic.
41Albeit inadequately, the Appellant tried to take step to keep his garage in order by hiring a mechanic and an office manager. Ultimately, however, the Appellant bears the responsibility for any of their failings.
42The relevance of the family situation is not about excusing the Appellant’s serious breaches of the law; rather, it provides the context in which the breaches took place. It also offers a glimpse into whether such past conduct can reasonably form the basis of the belief that he will not operate a motor inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity in the future.
43Over the Appellant’s twenty year career as a mechanic and a holder of a MVIS licence, the serious breaches that he committed took place during a time span which coincided with his court battle with his former spouse. Apart from these convictions, the Appellant’s prior warnings and infractions were, in my view, relatively minor. Indeed, the Appellant was allowed to continue to operate without any “flag” on his licence until the end of 2017, and only after he failed to renew his licence. The Appellant has offered an explanation for the charges relating to the use of improper tool equipment and other less serious offences, and has expressed remorse for the more serious breaches he had committed. The Appellant did obtain the proper tool in the end.
44The one issue that I find most troubling is with regard to the failure of the Appellant to keep proper records for the work that he has completed. The Appellant’s witness, Mr. A., at first did not seem to be familiar with the Light Duty Vehicle Inspection reports that Mr. Horton testified were missing. But later, Mr. A. said he had prepared these reports, but was not present on the day of inspection to present them. As the Respondent has rightly pointed out, the Appellant also did not produce any of the reports during the hearing. As such, I do not find Mr. A.’s evidence in this regard credible. I find that the Appellant did not produce the records as he was required to do under the law, and that if the Appellant had kept any records at all, those records were not kept in a manner consistent with the Regulations.
45The Appellant’s failure to keep proper records was consistent with the testimony of Mr. Horton stating that the Appellant had told him he was taking on jobs for cash payment. Mr. Horton’s testimony in this regard was not dealt with by the Appellant other than a general comment that having the proper paper work was “the last thing on his mind”.
46As such, I see the issue of failure to keep records and the practice of taking on cash jobs as two sides of the same coin. I must determine whether this issue alone is sufficient for me to conclude that the Appellant would not obey the law or act with honesty and integrity if his licence is reinstated.
47As I find the family situation faced by the Appellant at the time a mitigating factor, this factor also applies to the record-keeping issue. As the Appellant testified, with everything that was going on, the last thing in his mind was the paperwork. Having accepted that the mistakes made by the Appellant were tied to his family circumstances, I find the past conduct (including these mistakes) of the Appellant does not reasonably form the belief that he will not operate a motor vehicle inspection station and will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity going forward.
48In sum, based on the evidence before me, and applying the relevant provisions of the Act, I find the Director has not discharged his onus to prove that there are reasonable grounds to believe that the Appellant will not act in accordance with the law, with honesty and with integrity.
49By granting this appeal, I am in no way condoning all the violations and breaches (including the failure to keep proper records and taking on cash jobs) by the Appellant.
50With this second chance, I hope the Appellant will keep to his word and not have to come before this Tribunal again.
Order
51Pursuant to the authority vested in it under the provisions of the Act, the Tribunal grants the appeal and directs the Director to reinstate the MVIS licence and the Appellant’s registration as an MVIS mechanic to the Appellant.
LICENCE APPEAL TRIBUNAL
Avvy Go, Adjudicator
Released: August 2, 2018
Footnotes
- Registrar A.G.C.O. v.751809 Ontario Inc. o/a Famous Flesh, 2013 ONCA 157, at paras. 18-19.