Gordon Mander v. Registrar, Motor Vehicle Dealers Act, 2002, 2018 CanLII 127581

Licence Appeal Tribunal

Date: 2018-12-24

Appeal of Proposal to Refuse Licences issued by the Registrar, Motor Vehicle Dealers Act, 2002, pursuant to the provisions of the Act.

Between:

Gordon Mander Appellant

-and-

Registrar, Motor Vehicle Dealers Act, 2002 Respondent

DECISION AND ORDER

Adjudicator: Jonathan Batty, Associate Chair

Appearances:

For the Appellant: Gordon Mander, Appellant For the Respondent: Michael Rusek, Counsel

Heard in Person: June 19, 27 and August 17, 2018

Introduction

1This decision follows 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, S.O. 2002, c. 30 (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 past 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 believe the Appellant should be registered as a salesperson under the Act and direct the Registrar not to carry out the Proposal to refuse the application for registration as a salesperson.

4This matter has a lengthy history which I will briefly describe.

The Registrar's Denial of the Appellant's Registration

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 charges pending. 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 Registrar's proposal to refuse the Appellant's registration was largely based on the fact that there was an outstanding warrant for his arrest.

The Applicant's First Appeal to the Tribunal

7The Appellant appealed the Registrar's proposal to the Tribunal. On June 8, 2017, the Tribunal ordered that he be granted 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

The Registrar's Appeal to Divisional Court

8The Registrar appealed the Tribunal's decision to the Divisional Court, which on March 19, 2018 granted the appeal and ordered a trial 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 Tribunal was held to have had erred in law because it failed to consider the broader meaning of the term 'carry on business in accordance with the law.' This requirement encompasses a broader consideration than just how the Appellant will likely deal with consumers. In matters such as this the Tribunal should also include in its considerations the Appellant's relationship with the regulatory agency charged with enforcing the Act and, potentially, the court.

11The Divisional Court granted the Registrar's appeal and considered, but rejected, the remedy of simply directing the Registrar to carry out its proposal to refuse to register the Appellant. The court heard the appeal on February 12, 2018. As of that date the outstanding charges had not yet been addressed and the Divisional Court was concerned about that fact.

12In light of these circumstances, the court decided 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.

13Consequently, 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 Thus, the possibility that the Appellant could still qualify for registration was left open depending on what evidence was submitted on this point.

The New Hearing before the Tribunal

14As a trial de novo had been ordered, the evidence and materials had to be submitted and considered anew by the Tribunal. Prior to the hearing, the Registrar decided to call only one witness, Andrea Korth, and the Appellant decided to call himself and Tom Girling. The parties also exchanged the materials they intended to rely on before the hearing and submitted those materials to the Tribunal in advance.

15The Appellant served and filed the Appellant's Book of Documents (which was marked as Exhibit 1), a factum, and a Book of Authorities.

16The Registrar served and filed a Book of Documents (which was marked as Exhibit 2) and at the hearing provided the Tribunal and the Appellant a copy of the Divisional Court's March 19, 2018 decision.

17While the respective documents books contained significant overlap, the Appellant's document book included additional materials from the courts in Alberta concerning upcoming trial dates. Specifically, the Appellant submitted a Recognizance signed by a Justice of the Peace in Alberta, dated February 28, 2018, showing that he had appeared in court in Calgary to address the outstanding charges against him.

18At the hearing before me on June 27, 2018, the Appellant also testified a new charge, a trespass to property charge under an Alberta statute, had been added to the charges he was facing in connection with the incident that gave rise to his 2015 charge of assault. The Appellant also submitted a Scheduling Notice dated April 20, 2018 from the Provincial Court of Alberta that all charges were set down for trial on July 30, 2018 in Calgary.

19The Appellant was scheduled for trial in Alberta on three outstanding charges connected with the same underlying event. Those charges were: assault (a criminal charge); failure to attend court (a criminal charge); and trespass to property (a provincial offence).

20As 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 could consider evidence relating to whether or not the Appellant had fully resolved his outstanding legal obligations in Alberta.

21When the Appellant appeared before me, he had already been to Alberta and had set all his outstanding matters down for trial. The outcomes of all those proceedings were not known but their resolution appeared imminent, which had not been the case when the Divisional Court heard this matter.

22Had the Appellant been represented before me by counsel on June 27, 2018, he might have been advised and decided to request a short adjournment to allow for the outstanding matters in Alberta to be resolved before his appeal was decided. Had such an adjournment been requested, it would most likely have been granted in the interests of fairness to each party.

23The position of the Registrar on June 27, 2018 was that the actual disposition of these outstanding matters was determinative of this appeal. The Registrar submitted that⁴:

• If the Appellant had been acquitted of all three charges immediately prior to the Tribunal's hearing, the Registrar would have reconsidered and withdrawn its Notice of Proposal.
• If the Appellant had been convicted of all three charges immediately prior to the Tribunal's hearing, the Registrar would have proceeded before the Tribunal.
• If the Appellant had been convicted of only the failure to appear charge the Registrar would have proceeded before the Tribunal but that if the Appellant was found not guilty of the failure to appear but was found guilty of the assault charge, the Registrar would "look at what happened" before the court in Alberta.

24The Registrar summarised its position on this point as follows⁵:

So potentially if [the Appellant] was acquitted of the failure to appear and acquitted of the trespass but guilty of the assault charge, we might be here, we might not. It would depend on what was determined, either at the trial or at the guilty plea.

25In the interest of fairness to both parties, it therefore made sense to hear evidence and submissions relating to the imminent resolution of the Appellant's outstanding legal obligations in Alberta.

26As it was necessary to know the outcomes of the trials from July 30, 2018 in Calgary and what submissions the parties had regarding those outcomes. I ordered on July 13, 2018 that⁶:

1. The Appellant and the Registrar 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 wished to resume the hearing in person at the Tribunal's offices or by way of telephone conference call.
2. No later than August 7, 2018, that the Appellant advise the Tribunal and the Registrar in writing about the outcomes of the trials in Calgary from July 30, 2018 and provide the Tribunal and Registrar any court issued documentation he obtained regarding the disposition of the charges of assault, fail to attend court, and trespass to property⁷.

27Having received dates from the parties to resume the hearing and the requested written information and documents from the Appellant, the hearing resumed in-person on August 17, 2018.

28At the outset of the resumed hearing, I directed that⁸:

• To start, the Appellant testify under oath about the information he provided about the disposition of the trials in Calgary from July 30, 2018 and that, to be considered, any documents relating to those matters had to be entered as exhibits.
• The Registrar would then have opportunity to cross examine the Appellant concerning the disposition of those trials.
• The Registrar could then make oral submissions about the position of the Registrar in light of the Appellant's evidence regarding the disposition of those trials.
• The Appellant conclude by making submissions in reply to those of the Registrar.

29Before resuming the hearing, I asked whether the parties had any questions. At this point, the Registrar objected to the Tribunal receiving evidence about how the Appellant resolved his outstanding charges. Frankly, this was a surprising objection in context of the Divisional Court's ruling and the relevance of the information.

THE OBJECTION TO receiving evidence about the resolved charges

30The Registrar submitted the hearing had been "closed" and, as a result, I had no authority to receive this evidence.

31The objection was made at the last minute, with no supporting materials, and without proper notice to either the Appellant or the Tribunal as required by Rule 15. I permitted both parties to make submissions regarding the objection, reserved my decision and proceeded with the hearing as the Registrar agreed was appropriate in the circumstances.⁹

32The Registrar submitted that I should not receive evidence and submissions about the disposition of the trials in Calgary as the appeal was "closed". The Appellant was primarily concerned that his appeal not be delayed.

33By asserting the hearing was "closed", the Registrar was essentially submitting I was functus.

34I was not functus. The functus rule applies only once a tribunal has made its final decision in a matter. As stated in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848 at p. 861:

As a general rule, once [an administrative tribunal] has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934 CanLII 1 (SCC), [1934] S.C.R. 186]. [Emphasis added.]

35On June 27, 2018, I had not decided the matter. To the contrary, I advised the parties I was reserving my decision on the merits of the appeal. When I subsequently ordered the hearing to resume I was not revisiting a decision because of a change of mind on my part, or because I concluded in retrospect I had made an error, or because there was a change of circumstances.

36Where required to ensure clarity and a fair hearing, parties are often requested to submit post-hearing submissions to the Tribunal.

37As part of its ability to control its own processes, if there is a material point that needs to be addressed by the parties and considered by a Tribunal, it has the power to reconvene a hearing or request additional submissions or evidence before making its final decision. The exercise of this power has been described, for example, by the Divisional Court in Toronto Community Housing Corp. v. Zelsman, 2017 ONSC 5289, (paras. 16 and 48).

38The Registrar submitted I had no statutory authority to make my July 13, 2018 order. That submission is not correct. A Tribunal may make an order such as this as part of its authority to control its own processes and s. 25.0.1 of the Statutory Powers Procedure Act specifically gives the Tribunal the authority to do this.

39The Registrar submitted it would be prejudicial to the parties for me to hear this this evidence and their submissions on it. I do not agree.

40The Appellant was happy to testify with respect to this evidence and accepted he would be subject to cross examination by the Registrar.

41I do not see how this order was to the prejudice of the Registrar as the Registrar's own submission on June 27, 2018 noted, if the Appellant was found not guilty of the failure to appear but was found guilty of the assault charge, the Registrar's position might vary depending on the information it obtained about the trial. My order and manner of proceeding, therefore, provided the Registrar the opportunity to cross-examine the Appellant and to make submissions on this evidence.

42For these reasons, I have decided to receive and consider evidence about how the Appellant resolved his outstanding charges. Having decided this, I turn to the consideration of this appeal on its merits.

THE TEST FOR REGISTRATION

43The Act and Regulation prescribes registration requirements for two general classes of registrants: motor vehicle dealers and the salespersons who report to them.

44There are several provisions governing their respective roles:

• Motor vehicle dealers are authorized to trade in motor vehicles on their own account or on the account of another person (Act, s. 1(1)).
• A salesperson is an individual who is employed by a motor vehicle dealer to trade in motor vehicles only on behalf of that dealer (Act, s. 1(1)).
• A salesperson must be registered to a specified dealer, and may be registered to more than one dealer only with the consent of all dealers (Act, s. 4(5) and O Reg 333/08, s. 14).
• Motor vehicle dealers have a duty to ensure that the salespersons they employ are carrying out their duties in compliance with the Act and the regulations (Act, s. 23).

45The requirements that a person must meet to be registered as a salesperson are found in s. 6 of the Act and provide as follows:

6 (1) An applicant that meets the prescribed requirements is entitled to registration or renewal of registration by the registrar unless,

(a) the applicant is not a corporation and,

(ii) the past conduct of the applicant ... affords reasonable grounds for belief that the applicant will not carry on business in accordance with law and with integrity and honesty,

46The legal test for registration, which must be applied in a reasonable manner, is this¹⁰:

Does the evidence of past conduct that is before the Tribunal indicate a high degree of trustworthiness – the elements of honesty and integrity – so that it is reasonable and appropriate to place public trust in this Appellant with the granting of a registration to sell motor vehicles?

47The Divisional Court, as described above, cautioned that the Appellant's honesty and integrity was in question as he had failed to attend court and deal with the outstanding warrant for an extended period of time. In doing so, he appeared to have put his personal interests ahead of his legal obligations and thereby raised a doubt of his ability to appropriately deal with regulators and other authorities.

48The Divisional Court also held that evidence, if any, about the final outcome of the outstanding charges in Alberta was relevant to consider before finally disposing of this appeal. It was not a foregone conclusion that the Appellant should be denied registration. In this case as in all appeals, the Registrar bears the onus of showing that the Appellant should not be registered.

49I am also well-aware that I heard this appeal as a trial de novo. In doing so, I must apply the test for registration to the evidence which the parties have submitted to me in this hearing. As the Registrar noted, the effect of the Divisional Court's order means that no testimony or submissions of the parties from the first hearing are relevant – this appeal must commence as a "clean slate."

50Having outlined the legal test for registration, I now turn to applying that test to the evidence submitted to me.

EVIDENCE

The Registrar's Evidence

51The only witness called by the Registrar was Andrea Korth, OMVIC's business standards and legal project manager, who also deals with OMVIC's Code of Ethics.

52Ms. Korth explained the registration process under the Act and the requirement that, as part of the application process for registration, potential registrants must submit their criminal background checks to the Registrar. She acknowledged that the Registrar will in some instances register individuals who have either past criminal convictions or pending criminal charges against them. In such cases, the Registrar takes into account the context of the convictions and, for instance, whether these matters have been disclosed up front and reported honestly to OMVIC.

53Ms. Korth explained that registrants need to act with honesty and integrity and in accordance with the law because they need to make disclosures to consumers about the cars being purchased, are entrusted with the personal information of consumers, and need to report to their regulator (OMVIC).

54In respect of the Appellant's application for registration received by OMVIC on August 16, 2018, Ms. Korth indicated that it was not simply the fact that the Appellant had an outstanding charge against him but that it had been outstanding for over a year at the time of his application and had not yet been resolved. These outstanding charges still had not been resolved by the time the Registrar issued the Notice of Proposal dated December 1, 2016 proposing to refuse to grant the Appellant's requested registration. In particular, she noted that the Appellant had only gone back to Alberta on February 28, 2018 to address an outstanding warrant for failing to appear in court. Throughout her testimony, Ms. Korth indicated that the failure to appear in court charge was very significant for the Registrar in this particular matter.

55Ms. Korth did not testify that the Registrar had any concerns about either the accuracy or completeness of the Appellant's registration application. She did not testify of the Registrar having any concerns about the Appellant's dealings with OMVIC since August 2016.

The Appellant's Evidence

56The Appellant called two witnesses: Tom Girling and himself.

57Mr. Girling, who is the Director of Investigations at OMVIC, was asked very few relevant questions. From his questioning, it appeared that the Appellant was trying to illicit an opinion from Mr. Girling that the outstanding charges in Alberta were of minor significance. The Appellant was unsuccessful in that effort. Mr. Girling fairly noted such comparisons are context specific. Mr. Girling would not opine whether or not the Appellant's record of offences and outstanding charges were either serious or minor.

58The Appellant's testimony was more on point. The Appellant described his history of selling cars in progressively more senior sales positions in Alberta for 30 years and, once registration legislation was enacted, having been a registrant for 13 years with that regulator, OMVIC's equivalent in Alberta. He testified that he had a clean record with that regulator.

59The Appellant further testified that between the date he applied for registration on August 16, 2016 and the date the Registrar issued its Notice of Proposal on December 1, 2016 that little or no effort was made to explore his record with OMVIC's equivalent in Alberta.

60He then described the events from the summer of 2015 when he was living in Edmonton that led up to his being charged with assault, failing to appear, and trespass to property:

• The assault charge arose from an altercation that he had with a person on July 12, 2015 who had approached his spouse who was with him in a drugstore while they were visiting Calgary. He was arrested, released, and required to return to court on September 14, 2015.
• The subsequent charge for failing to appear in court in Calgary arose, he claimed, from the failure of a family member to appear in court on his behalf to speak to the assault charge on September 14, 2015. While he learned afterwards that he had not been represented in court, he took no steps to resolve these outstanding matters and instead moved to Ontario shortly after for family reasons on September 30, 2015.
• It was not until he returned to Calgary in February 2018 (to speak to the scheduling for trial of the assault and failure to appear charges) that he was charged with a trespass to property offence relating to the same altercation in 2015 in the drugstore in Calgary.

61The Appellant acknowledges that he took no steps to address these outstanding charges until he applied to register with OMVIC. While it appears he hoped that these charges could be resolved from Ontario, it soon became clear that he would need to return to Calgary to address these matters. Even then, it took him an extended length of time to do so. He claims family responsibilities and financial limitations limited his ability to return to Alberta until very recently.

The Resolution of the Appellant's outstanding legal obligations in Alberta

62When the hearing resumed on August 17, 2018, the Appellant testified as to the disposition of the charges in Alberta. He noted:

• He was convicted on the assault charge on July 30, 2018 and was sentenced to spend 30 days in custody or pay a fine of $1,000 (plus a victim surcharge of $300). He chose to pay the fine and surcharge and conceded that he had been convicted of a serious offence.
• The failure to appear in court charge had been withdrawn by the Crown on June 8, 2018 which the Appellant noted was prior to the commencement of the hearing but had not been understood by him at the time.
• The trespass to property charge was also stayed by the Crown on July 30, 2018.

ANALYSIS

63The central question I must consider is whether the evidence before me about the Appellant's past conduct establishes that he cannot "carry on business in accordance with the law and with integrity and honesty."

64The Registrar submits that the Appellant should not be registered as he demonstrates a pattern of ungovernability. The Registrar submits that since 2015 the Appellant has failed to comply with his legal obligations, thwarted the will of the court, demonstrated that he is ungovernable and presents a risk to not just the car-buying public but to the industry as a whole and to the regulator. The Registrar further submits that from 1985 to the present day the Appellant has demonstrated that he picks and chooses when he is going to comply with his legal obligations and that he has demonstrated that he puts personal and financial interests ahead of his legal obligations.

65I do not see from the evidence before me that the Appellant has demonstrated such a pattern.

66The Appellant is 52 years old. Prior to his being convicted with assault in 2018, he has a conviction for assault dating from 1987 and convictions for attempting to obstruct justice and failing to appear in court dating from 1985. His previous convictions are over thirty years old. As the Registrar's submissions pointed out, these convictions by themselves do not demonstrate ungovernability and would not be reason alone to refuse the Appellant's registration.

67As the Registrar noted, the central focus of this appeal is the fact that at the time of his application the Appellant failed to comply with his legal obligations to attend court in Alberta in 2015; as the Registrar stated "everything stems from that."¹¹ Those outstanding legal obligations were an assault charge and a failing to appear charge.

68The outstanding legal obligations have now been addressed. The Appellant did not plead guilty to the assault charge. He was tried, convicted, and paid the required fine. In testifying about the matter, the Appellant acknowledged and accepted the judge's ruling that it was a very serious charge and that the punishment fit the conviction.

69Both OMVIC employees testified that context is key in deciding whether someone with a record of offences is eligible for registration. I do not think that if an individual has a very small number of minor convictions in his youth, and then thirty years later is involved in an isolated incident giving rise to a new charge, that it amounts to a history of picking and choosing what laws he observes or a pattern of putting personal interests ahead of legal obligations.

70The failing to appear charge, relating to the trial on the assault charge, was withdrawn by the Crown and was not part of a plea agreement. The Appellant explained this when he testified on June 27, 2018. As noted previously, the Appellant testified that he had asked a family member to appear in court on his behalf because he lived in Edmonton and the trial was in Calgary. He also produced an email, dated December 6, 2017, including a message relayed from that family member, explaining she had not attended in court as planned but referenced an incorrect date. The Registrar submits this email ought to be rejected because it is not be credible or reliable.

71The Appellant testified that he provided this same explanation and email to the Crown and his understanding is that the charge of failing to appear was withdrawn, in advance of trial, as a result.

72I am troubled that the Registrar asks me to presume that the withdrawal of the failure to appear charge by the Crown must be for some other reason than the explanation provided by the Appellant. While the Appellant has explained what occurred (and provided an email to which the Registrar objects), the Registrar has provided no evidence and only supposition as to why the failure to appear charge was withdrawn.

73It appears to me that the Crown accepted the Appellant's explanation and that little or no importance attaches to the email. The Crown withdrew the failing to appear charge for the simple reason that the charge resulted from the unfortunate fact that the Appellant's family member did not appear in court on his behalf as he had expected. Simply put, there was not adequate evidence to convict the Appellant on a criminal charge of evading his legal obligation to appear in court. Most importantly, it was clear Appellant was making the effort to return to Alberta to stand trial.

74The Registrar submits that even though the failing to appear charge was withdrawn, the Tribunal should still view the underlying conduct as reason to refuse registration. In support of the submission, the Registrar referred me to the Supreme Court of Canada's decision in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541 (but did not submit a copy of the decision to the Tribunal or Appellant). The Registrar submitted that Wigglesworth provides that criminal matters and regulatory matters can run parallel and concurrently and more importantly "there do not need to be consistent outcomes."¹²

75As I understand it, Wigglesworth addresses the issue of double jeopardy and the application of s. 11 of the Charter. More precisely, it holds that the protection against double jeopardy does not apply where someone is subject to a licensing or disciplinary sanction (where no penal consequence can result) and potential criminal charges for the same underlying conduct. Being referred to this case was not helpful as it does not directly stand for the proposition quoted by the Registrar. However, I do accept the proposition that acquittal on a criminal and a regulatory matter concerning the same underlying circumstances may reach different outcomes – i.e. that the Tribunal may refuse registration even though someone has been acquitted of a criminal charge.

76Similarly, the Tribunal may allow registration when there has been an acquittal on a criminal charge. What is determinative is the underlying conduct. I do not find that the Appellant has been deliberately thwarting the law. Granted, he did not address these outstanding matters as quickly as he might have done, but he also spoke of the time and expense this has involved trying to resolve matters in Alberta from Ontario when he has very limited financial ability. He has accepted responsibility for his outstanding legal obligations and has come to realize the error of his delay. He has paid dearly for it as he has not been registered as a salesperson as he had hoped. As he testified on June 27, 2018, he says he has regretted every single day that he did not resolve his outstanding legal obligations sooner.

77While the Registrar has also submitted that the Appellant has flouted his obligations to the Tribunal, I do not find that to be the case.

78As the Registrar correctly noted, the initial hearing date was scheduled for June 19, 2018 and the Appellant did not attend. He has indicated that he did not understand that the matter was proceeding on that date. While this was an inconvenience to the Tribunal on that date (and necessitated an adjournment), his materials had already been filed and the matter proceeded on June 27, 2018 as scheduled. In the course of the hearing before me, the Appellant treated the Tribunal with respect. He listened carefully, followed my directions, and respected my rulings. Additionally, despite the submission of the Registrar and the testimony of Ms. Korth, it appears to me that the Appellant did, in fact, begin the process of addressing his outstanding legal obligations within the period ordered by the Tribunal that first heard this appeal.

79I am very cognizant that the Appellant is self-represented and for just over two years has been navigating by himself through the regulatory, tribunal, and judicial system. It would unusual were he not generally frustrated with the length of time this matter is taking and with OMVIC specifically and did complain about that fact. However, I do not find on a balance of probabilities he is ungovernable and will be unable to observe OMVIC's regulatory requirements. He worked for several years in car sales in Alberta, under the auspices of that province's regulatory regime, without incident. In Ontario, as a salesperson, he would be required to work under the direction of a dealer, who is similarly responsible for having the dealer's salesforce observe regulatory requirements.

80In conclusion, I find as follows. The Appellant has satisfactorily resolved his outstanding legal proceedings, two of which the Crown did not take to trial and one where upon conviction he has paid the required penalty. While there was delay in resolving those matters, the Appellant does not have a pattern of non-compliance with the law and putting his interests ahead of his legal obligations. He does not pose a risk to the public, the car-buying industry, OMVIC, the Tribunal, or potentially the court.

81Based on the above evidence and analysis, l find that the Registrar has not met the onus of demonstrating that the Appellant will not carry on business in accordance with the law and with honesty and integrity.

ORDER

82Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar not to carry out the Proposal to refuse the application for registration as a salesperson.

LICENCE APPEAL TRIBUNAL

Jonathan Batty Associate Chair

Released: December 24, 2018

Footnotes

1. 110602 v. Registrar, Motor Vehicle Dealers Act, 2002, 2017 CanLII 50039 (ON LAT), para. 20.
2. 2Ontario v. Mander, 2018 ONSC 1795, para. 35.
3. 3Ontario v. Mander, para. 39.
4. 4June 27, 2018 Transcript of Proceeding, Line 17, Page 208 to Line 17, Page 209.
5. 5June 27, 2018 Transcript of Proceeding, Lines 19 to 24, Page 209.
6. 6Mander v. Registrar, Motor Vehicle Dealers Act, 2002, 2018 CanLII 104475
7. 7Court documents were submitted by the Appellant in compliance with this direction and were subsequently marked as Exhibits 3 and 4 on August 17, 2018.
8. 8August 17, 2018 Transcript of Proceeding, Line 9, Page 6 to Line 4, Page 7.
9. 9August 17, 2018 Transcript of Proceeding, Lines 19 to 21, Page 12.
10. 10Ontario v. Mander, para. 22.
11. 11June 27, 2018 Transcript of Proceeding, Line 22, Page 192.
12. 12June 27, 2018 Transcript of Proceeding, Lines 11 to 14, Page 210.