Date: 2018-10-01

Appeal from a Notice of Proposal of the Registrar under section 9 of the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B to Refuse a Registration

Between:

Auto Museum Inc. and Mohd Foyez Ahamed Papon

Appellants

-and-

Registrar, Motor Vehicle Dealers Act, 2002

Respondent

DECISION AND ORDER

Adjudicator: Marisa Victor, Member

Joanne E. Foot, Member

Appearances:

For the Appellants: Arif Hussain, Counsel

For the Respondent: Michelle Samaroo, Counsel

Place and Date of Hearing: Toronto, In-Person

July 11 and 12, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1On December 16, 2016, the appellant, Auto Museum Inc. (Auto Museum), applied for registration as a motor vehicle dealer under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B (the Act). On the same day, the appellant, Mr. Papon, submitted an individual application to be registered as a salesperson in support of the Auto Museum application. Mr. Papon is the sole officer and director of Auto Museum. He also intends to be the person in charge and, at the time of the application, the only salesperson.

2On October 22, 2013, Mr. Papon was charged with sexual assault. He pled guilty to the lesser included offence of assault, was sentenced to a conditional discharge and 18 months of probation. After completing his sentence, he has no criminal record.

3On December 21, 2017, the respondent, the Registrar, Motor Vehicle Dealers Act, 2002 (the Registrar), issued a Notice of Proposal to Refuse Registration for both Auto Museum and Mr. Papon (the Proposal). The Registrar’s first ground for refusal is that Mr. Papon’s past conduct shows that he will not carry on business, both personally and in his capacity as principal of Auto Museum, in accordance with law and with integrity and honesty. The second ground the Registrar relies on is that Mr. Papon provided false statements in connection with the two applications.

4The hearing of this matter was assisted by a Bangladeshi translator for Mr. Papon.

B. RESULT:

5For the reasons that follow, we find that Mr. Papon’s guilty plea to assault, his misleading statements in connection with that assault in his registration together with his conduct before this Tribunal in explaining the assault demonstrates a reasonable ground to believe that he, and therefore Auto Museum, will not act in accordance with the law, with honesty and integrity.

6Therefore, we direct the Registrar to carry out the Proposal in respect of both appellants.

C. PRELIMINARY ISSUE:

7At the hearing, the respondent requested a confidentiality order with respect to the name, address, or phone number of the victim of Mr. Papon’s assault. The motion was unopposed.

8We accepted the respondent’s submission and made that order orally at the hearing. Here are the reasons for that order.

9In Toronto Star v. AG Ontario, 2018 ONSC 2586, the Superior Court determined that the constitutional principle of openness applies to adjudicative tribunals, in addition to courts. This means that ordinarily the adjudicative records in a proceeding, including evidence, submissions and other documents, are accessible to the public. As the openness principle is constitutionally protected, it takes primacy over privacy. That being said, there are cases in which a confidentiality order is necessary in order to protect important interests in privacy. Anyone seeking a confidentiality order has the onus to show that the interest in confidentiality outweighs the openness principle.

10The court stated that in order to restrict public access to adjudicative records, tribunals should rely on the test used by courts in ordering publication bans. The test requires that the following conditions be met:

a. That such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b. That the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

11The court stated that the test should be applied flexibly by tribunals adapting it to their specific context and needs.

12In this case, the information that the respondent seeks to protect is the identity of the victim of Mr. Papon’s assault, an assault that the judge characterized as having sexual connotations. This information is inherently sensitive and we find that protecting the victim’s identity is sufficiently important to outweigh the interest in adhering to the openness principle in this case. We note that the identity of the victim is of no relevance to our decision to direct the Registrar to carry out the proposal, and therefore this information is of little added value in the public’s understanding of the reasoning underlying our decision on the merits. We also find that there are no alternative measures that will protect the victim’s identity. As a result, and in applying the test set out by the court, we find that the salutary effects of the confidentiality order outweigh the deleterious effects of not adhering to the openness principle.

13Therefore, we order that the Tribunal shall keep confidential and not disclose to anyone any reference to the victim’s name, address, or phone number as it appears in any document in the Tribunal’s file. This includes evidence, including the transcript of the court proceedings and Mr. Papon’s statements, or any other documents or recordings that could identify the victim. In addition, this confidentiality order shall be noted in the Tribunal’s physical and electronic filing system.

D. ISSUES:

14We must decide whether the respondent has shown the appellants are not entitled to registration. To answer that question, we must analyze the following issues:

a. Does Mr. Papon’s past conduct show that there are reasonable grounds to believe he, and therefore Auto Museum, will not carry on business in accordance with law and with integrity and with honesty?

b. Did Mr. Papon make false statements in connection with the two applications for registration?

c. Are there appropriate conditions that could facilitate a registration?

E. BackgrounD:

15The appellant arrived in Canada from Bangladesh in 2004. He has a wife and three children currently aged 14, 10 and 4 years of age. His eldest child has autism. Mr. Papon is the sole provider for his family.

16Mr. Papon has been a driving instructor for Shaaz Driving School since March 2006. This school primarily serves members of the Bangladeshi community in Toronto.

17On October 22, 2013, Mr. Papon was arrested and charged with sexual assault of a female client of the driving school.

18In August 2014, Mr. Papon pled guilty to the lesser but included offence of assault.

19He was given a conditional discharge and sentenced to probation for 18 months, which lasted until early 2016. A conditional discharge results in no criminal record if the sentence is completed without issue. Mr. Papon does not have a criminal record.

20On December 16, 2016, Mr. Papon submitted the Auto Museum dealership application together with his own salesperson application.

F. Issue 1 – Does Mr. Papon’s past conduct show that there are reasonable grounds to believe he, and therefore Auto Museum, will not carry on business in accordance with law and with integrity and WITH honesty?

I. Law

21Section 6(1)(a)(ii) of the Act provides that an individual applicant is entitled to registration unless the appellant’s past conduct provides reasonable grounds to believe he will not carry on business in accordance with law, with integrity and with honesty.

22Similarly, Section 6(1)(d)(iii) of the Act provides that a corporate applicant under the Act is entitled to registration unless the past conduct of its officers or directors affords reasonable grounds for belief that its business will not be carried on in accordance with the law, with integrity and with honesty.

23The Registrar has the burden to prove that the appellants are not entitled to registration. The standard of proof is “reasonable grounds for belief” which is a lower standard of proof than a balance of probabilities.

24The Court of Appeal in the decision Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 (Famous Flesh Gordon’s), ruled that there must be reasonable grounds for belief that the person will, in future, carry on activity in a way that is contrary to the public interest such that they will not act in accordance with the law, with honesty and with integrity. The Court of Appeal emphasized that any and all past or present conduct can and should be considered. Furthermore, there should be a nexus between the appellant’s overall conduct and the business.

II. EVIDENCE & ANALYSIS

25Mr. Papon’s conduct in all matters, not just the assault, must be examined to answer the question as to whether the respondent has shown that the appellants are not entitled to registration. The relevant evidence introduced falls into the following three categories:

a. The retail motor vehicle business regulatory regime;

b. The appellant’s registration applications; and

c. The information the appellant provided regarding his guilty plea for assault, including his testimony before this Tribunal.

26The respondent called two witnesses:

a. Mr. John Carmichael, CEO of the Ontario Motor Vehicle Industry Council (OMVIC) and interim Registrar. He previously was a member of parliament and prior to that a new car dealer for 40 years. He is ultimately responsible for the decision to grant, revoke or a refuse a registration.

b. Ms. Cristina Gorea who is a team lead in registration. She did not personally handle the appellant’s application, but the regular representative who did is no longer working for the Registrar.

27The appellants’ only witness was Mr. Papon.

The Retail Motor Vehicle Business Regulatory Regime

28Mr. Carmichael testified that the Act governs the retail automobile business in Ontario. OMVIC enforces and administers the Act on behalf of the provincial government. OMVIC’s role is both as a consumer protection agency as well as to improve professionalism in the business.

29Mr. Carmichael stated that there are in excess of 8,000 motor vehicle dealers and 28,000 salespersons registered in Ontario.

30Ms. Gorea provided an overview of the registration process for both motor vehicle dealers and salespersons. A dealer registration takes longer to review because of the full spectrum of information required, including financial information. There are more checks because of a dealer’s increased responsibility to protecting the consumer. Dealers have increased responsibility both to their employees as well as the public. They are responsible for salesperson supervision, including providing training and education.

31Ms. Gorea testified that a salesperson should have passed the Automotive Certification offered by the Automotive Business School of Canada for OMVIC and run through Georgian College. There is less scrutiny of a salesperson registration because they will be supervised by a registered dealer.

32Ms. Gorea testified to the significant contact salespersons have with consumers, referring to them as the "front line workers" of the industry. Salespersons manage transactions from start to finish. Mr. Carmichael emphasized this point as well.

33Both Mr. Carmichael and Ms. Gorea noted that the purchase of a motor vehicle is a significant financial transaction being, for most people, second in magnitude only to the purchase of a house.

34Both Mr. Carmichael and Ms. Gorea asserted that confidence in the honesty and integrity of individuals is critical to the proper functioning of the regulatory system and necessary to meet the goal of consumer protection. Mr. Carmichael stated that in order to effectively regulate the large number of participants in the industry, OMVIC relies heavily upon honesty in applications. Ms. Gorea also expressed that OMVIC relies upon self-reporting by motor vehicle dealers and salespersons, and requires that registrants are self-governing.

35The respondent’s evidence was uncontroverted.

Analysis

36We accept the respondent’s evidence that the retail motor vehicle business regulatory regime relies on the self-reporting of individuals and the governability of individuals. Therefore, the reliance on the honesty and integrity of the applicants is important for the proper functioning of the regime and to protect consumers.

The Appellants’ Registration Applications

37Ms. Gorea showed that in the appellants’ registration applications, in response to the question asked as to whether the appellant has ever been found guilty or convicted under any law, the appellants checked off “yes.”

38Ms. Gorea also stated that, as required, Mr. Papon submitted a criminal record check through the National Criminal Records repository which showed no criminal record. She testified that a conditional discharge would not show up on a criminal record check as it is not considered a conviction. Ms. Gorea answered in cross-examination that they conduct a different record check through a third party which includes conditional discharges. She also testified that they routinely order court records as they did here.

39Mr. Carmichael added, in cross-examination, that the OMVIC background check additionally shows whether an applicant has been arrested, not just convicted of an offence. Other than the assault already disclosed, Mr. Papon had no further arrest records.

40Mr. Papon testified that this was his first application for registration. However, it was his dream to become a dealer since he emigrated to Canada. His family has run a car dealership in Bangladesh and he worked there prior to moving to Canada. He stated he sold 3000 vehicles prior to coming to Canada.

41He testified that he wanted to be a dealer so that he could control his work hours in order to help take care of his autistic son. He described the difficulties his son has in school, which include occasional violent outbreaks. He wanted a change from the hours of a driving instructor that normally requires work in the evenings. He also has to go with his driving students to out of town locations when they have driving tests.

42Mr. Papon testified that in order to complete the registrations he had assistance from friends and family as well as the OMVIC counter. He also states he did not tell his friends about his guilty plea for assault.

43Appellants’ counsel submitted that Mr. Papon’s shortcomings in his dealings with OMVIC resulted primarily from his inability to comprehend and communicate adequately in English.

Analysis

44We accept that Mr. Papon has a limited command of English and that family, friends and the OMVIC counter staff assisted him in the completion of the applications.

45Despite any language barriers that may exist, we find that Mr. Papon answered the key question about his plea of guilty to assault, honestly and correctly.

46Finally, we accept that the other than the guilty plea for assault, Mr. Papon has a clear record.

The Information the Appellant Provided Regarding His Guilty Plea, Including his Testimony before This Tribunal

47Ms. Gorea testified that as required by the application, Mr. Papon submitted a sworn statement on December 16, 2016 explaining his guilty plea. He stated as follows:

Professionally, I Mohd Foyez Ahamed Papon, am a Driving instructor since 2006. On September 24, 2013, as a part of my job, I was giving on the road driving lesson to one my student. The student was very nervous type and not serious of taking her lesson. But I was giving my full efforts to teach her properly. On the day of the incident, my student was on the driving seat and while driving, she was about to pass through RED SIGNAL. To avoid the probable accident, I immediately stopped her with very loud voice. But she was not happy with my behaviour and later she went to court and sued me for sexual assault. But the court found me guilty with lesser offence of assault but not sexual assault and finally discharged me on conditions which I already fulfilled.

48Ms. Gorea presented documentary evidence that the registration representative handling Mr. Papon’s file at the time, A.B., wrote to Mr. Papon on December 22, 2016, asking for further information about his application. Ms. Gorea stated this was normal follow-up. At that time, most of the questions related to financial and industry knowledge.

49Ms. Gorea entered into evidence a January 13, 2018 email from OMVIC specifically asking for more information about the guilty plea. The email stated, “Kindly provide a breakdown of what happened before during and after the assault incident in as much detail as possible in a signed and dated statement.”

50Ms. Gorea’s records showed that Mr. Papon delivered a further statement on March 27, 2018. The statement elaborated on the previous statement. It is broken down into sections:

a. Background: Here the appellant added information about the appellant’s work history and his source of clients;

b. Occurrence: In this section the appellant repeated the original statement above and added the name of the victim, her contact information, the address of the court house and the court file number.

c. Scenario after Occurrence: The appellant described how long it took to settle the matter and the order for the discharge. The order was in force for 18 months and included statutory conditions to keep the peace and additional conditions for reporting to the probation officer, not to contact or be near the victim, and to take any counseling as directed by his probation officer.

d. Present Situation: The appellant wrote that he fulfilled all the conditions of his sentence.

51Ms. Gorea confirmed that OMVIC ordered the court transcripts. These were entered into evidence.

52Mr. Carmichael testified that his concern is that as a driving instructor, Mr. Papon, in a position of authority over his student, took advantage of her. He added his concern with the registration application is that Mr. Papon would be the dealer and the sole salesperson with no other people in the business. Furthermore, the appellant would be conducting test drives with consumers. Mr. Carmichael was concerned that Mr. Papon’s past actions suggest there will be future problems with his interaction with women.

53Mr. Carmichael testified that he felt the two statements submitted by the appellant were misleading and false because the appellant blamed the victim for a driving infraction and did not provide any details of the actual assault.

54Mr. Carmichael testified with regard to the content of the court transcripts for the appellant’s guilty plea. The information before the judge included that:

a. The victim was described as a Bengali woman new to the country whose husband had not yet arrived in Canada;

b. The facts alleged by the victim were that, during a driving lesson, the appellant touched her right breast while she was driving; and

c. The facts were admitted by the appellant.

55Mr. Carmichael also testified about the judge’s comments included in the transcript. He noted that the judge stated that:

a. The appellant had assaulted a vulnerable person and that the assault had sexual connotations;

b. The appellant’s actions required deterrence;

c. That it was a serious offence;

d. That he considered that Mr. Papon had a son with autism and was the sole bread winner in the family. In addition, the appellant could lose his driving instructor position if convicted of a crime, but not if given a conditional discharge;

e. That he was concerned with regard to the risk of safety to women in the future; and

f. That due to the job consequences, the appellant received a conditional discharge even though a higher sentence could have been given.

56Mr. Carmichael testified that he had the following concerns about the appellant’s governability as a result of his statements:

a. That the appellant had breached the trust element, and therefore governability was a concern;

b. That the statements made were not accurate and placed blame on the victim;

c. That the statements were an attempt to mislead the Registrar into granting a registration and attempted to deflect the seriousness of the situation; and

d. That the incident took place in another regulated industry.

57Mr. Carmichael added that other applicants have had criminal records but the key is whether there is a continuing concern for consumer harm. In general, he stated, a false statement regarding their background disqualified an applicant from registration.

58When asked in cross-examination whether the appellant chose to leave out certain things in his statement that he found difficult to talk about, Mr. Carmichael agreed that was possible. However, in re-direct Mr. Carmichael clarified that what was left out of the statement was the “meat and potatoes” of the allegations to which Mr. Papon pled guilty.

59When asked whether there might be other employees in the future, Mr. Carmichael agreed that that could be a possibility but at this stage only Mr. Papon has applied for a salesperson registration with Auto Museum.

60In answer to questions from the Tribunal, Mr. Carmichael testified that there are some salespersons who are registered and do have criminal records, however he doubted any had convictions for sexual assault.

61Mr. Papon testified that he believes he is a good person. He also stated that to the best of his knowledge he did not mislead OMVIC or do anything wrong. When asked to provide further information, he gave the victim’s name and contact information as well as the court file number. He knew and accepted he had pleaded guilty but did not have access to the court transcript at the time he filled out the applications.

62When asked specifically about what happened, the appellant stated he did not want to talk about it, he felt shy and that all the documents had already been submitted. He stated he called OMVIC and advised them they could get transcripts from the court. He also stated his memory was vague but that he did feel guilty.

63Mr. Papon also testified that he had been a driving instructor for many years and that 90% of his clientele are female and from the Bangladeshi community. His clientele are mostly women because, he stated, they are comfortable with him and he is polite.

64In addition, in cross-examination, Mr. Papon agreed that he never disclosed his guilty plea to the Ministry of Transportation (who regulates driving instructors) but that he did not need to because his guilty plea did not result in a conviction.

Analysis

65In analyzing Mr. Papon’s conduct, some of the factors that we believe are important to consider are:

a. The seriousness of the crime;

b. The span of time during which the assault took place;

c. The appellant’s overall record;

d. Whether the appellant has shown a clear demonstration of repentance and remorse and an acceptance of responsibility for his behavior; and

e. The connection, if any, between his overall conduct and his ability to carry on business as required.

66With regard to the first three factors, in Mr. Papon’s favour is the fact that the assault is the appellant’s only offence. The assault also took place only once during a driving lesson. As well, since the time of his guilty plea, Mr. Papon completed all the elements of the conditional discharge and therefore does not have a criminal record. Furthermore, a significant amount of time has passed between the incident and today and there have been no allegations of a second incident even though Mr. Papon has continued working in the same capacity as a driving instructor for many years.

67With regard to Mr. Papon’s demonstration of repentance, remorse and acceptance of responsibility, we find Mr. Papon lacking. Mr. Papon exhibited some remorse by proceeding via guilty plea. He also testified that he feels guilty. However, Mr. Papon’s two written statements submitted to OMVIC, rather than accepting responsibility, place blame on the victim. We are greatly concerned about this. He also was unwilling to discuss what happened or what he has learned from his conduct. We are forced to conclude that Mr. Papon’s remorse, acceptance of responsibility, or understanding of and insight into his part in the incident is lacking.

68With regard to the connection between Mr. Papon’s overall conduct and ability to carry on business in the future as required, we find that guilty plea for assault is not, in and of itself, sufficient to render the appellants ineligible for registration under the Act. However, we are required to consider the Mr. Papon’s overall conduct. When we consider Mr. Papon’s past conduct together with his conduct and evidence before this Tribunal we find the appellant lacking and this is troubling with regard to his future conduct.

69Mr. Carmichael testified that while the contents of Mr. Papon’s applications might not be false, (he disclosed the guilty plea as required) they were misleading in that his explanations excluded “the meat and potatoes” of the incident. In this, we agree with Mr. Carmichael.

70The description of the event differs markedly from the facts which Mr. Papon admitted to in the criminal proceeding. In the appellant’s statements to OMVIC, Mr. Papon describes the victim committing a traffic infraction and her charging him as a reaction to his correction of her driving error. In the transcripts, Mr. Papon admits to touching the victim’s breast. At no time during the application process or during the hearing, did Mr. Papon attempt to clear up this discrepancy or to offer any explanation of the divergent descriptions. Mr. Papon had several opportunities during the application process to disclose what happened. He failed to do so.

71He continued to refuse to discuss the assault even when asked by this Tribunal. At the hearing, he expressed clearly and repeatedly that he did not wish to discuss the incident saying he was shy, his memory was vague and he felt a bit guilty.

72Mr. Papon demonstrated at the hearing a persistent refusal to discuss the most critical issue of the case. We do not accept that Mr. Papon’s memory of the incident was vague. He refused to discuss his statements in which he said the victim had nearly run through a red light, he equally refused to discuss the allegations he pled guilty to. Mr. Papon’s shyness is not a defense either. He was required to be open and honest in his application and instead he chose to blame the victim. We are also unable to accept appellants’ counsel’s submission that this unwillingness is also due to a language barrier. Mr. Papon was well-served by a translator during the hearing.

73We find that registering Mr. Papon poses a significant risk. In addition to his guilty plea for assault and misleading statements, Mr. Papon’s unwillingness to discuss information which makes him uncomfortable affects Mr. Papon’s governability, his ability to be part of a self-regulating industry and certainly his integrity and honesty should other issues arise that make him uncomfortable.

74In conclusion, given his guilty plea for assault, his misleading statements to OMVIC, his blame of the victim, together with his persistent refusal to discuss the matter at the Tribunal, we find that the respondent has shown that there are reasonable grounds to believe that Mr. Papon, and therefore Auto Museum, will not carry on business in accordance with the law, with integrity and with honesty.

G. Issue 2 – Did Mr. Papon make false statements in connection with his application for registration?

75Section 6(1)(a)(iii) of the Act provides that an individual applicant is entitled to registration unless the applicant makes a false statement or provides a false statement in an application for registration.

76Similarly, s. 6(1)(d)(iv) of the Act provides that a corporate applicant under the Act is entitled to registration unless an officer or director of the corporation makes a false statement or provides a false statement in an application for registration.

77Having already found above that the appellants are not entitled to registration because there are reasonable grounds to believe that the appellants will not carry on business in accordance with the law, with integrity and with honesty, we do not need to consider whether Mr. Papon’s statements regarding the assault are also false statements in the applications for registration.

H. Are there appropriate conditions that could facilitate a registration?

78In the alternative, the respondent proposed the following as possible conditions upon which a registration could be issued:

a. Mr. Papon could be licensed as a salesperson only;

b. Mr. Papon could not apply for a dealership license for two years;

c. Mr. Papon would have to work for an established dealership approved by the respondent; and

d. Mr. Papon would not be permitted to do test drives alone.

79Mr. Papon was asked by the Tribunal whether he would consider a licence as a salesperson with the above conditions given his testimony about the needs of his family and the need for a flexible schedule which he believed was only attainable through a dealership registration. Mr. Papon took a short break to consult with his counsel. Upon his return, Mr. Papon stated that registration as a salesperson alone was not an option he would consider.

80We would have potentially considered the above option as an option for registration for Mr. Papon. This would have allowed Mr. Papon to prove himself in a position that carries less responsibility than a dealer does, and where, as an employee of an established dealership, he could learn the business and the requirements of honesty and integrity.

81However, given the appellant’s refusal to consider this option, and given our finding above under Issue 1, we will not order the respondent to issue a salesperson license with such restrictions.

I. ORDER:

82The Tribunal directs the Registrar to carry out the Proposal to refuse the appellants’ registrations.