Date: 2018-08-24

Appeal under section 11(2) of the Motor Vehicle Dealers Act, 2002, S.O. 2002, c.30, Sch. B from a Notice of Proposal by the Registrar to Refuse Registration

Between:

Canadian Car Auto Sale Corporation and Riyadh Abdul Sada

Appellants

and

Registrar, Motor Vehicle Dealers Act, 2002

Respondent

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, member

Date: August 24, 2018

Written Submissions By:

For the Appellants and Respondent jointly: Shannell Leggard

Paralegal for the Respondent

Overview

1The respondent, Registrar, Motor Vehicle Dealers Act, 2002 (the “Registrar”), requests reconsideration of a decision of the Licence Appeal Tribunal (the “Tribunal”) to dismiss the appeal in this matter.

2The Registrar had issued a Notice of Proposal to refuse to register Canadian Car Auto Sale Corporation (the “Corporation”) as a motor vehicle dealer and Riyadh Abdul Sada as a motor vehicle salesperson under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c 30, Sch B (the “MVDA”).

3Both appellants appealed the Notice of Proposal to the Tribunal. In advance of the hearing, the parties reached an agreement, whereby the Corporation would withdraw its application for registration as a dealer and Mr. Sada would be registered as a salesperson subject to certain conditions to be imposed on his registration for a period of two years.

4The parties signed Minutes of Settlement and requested that the Tribunal issue a consent order in accordance with s. 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c S.22 (“SPPA”), incorporating the terms of the Minutes of Settlement.

5The Tribunal reviewed the Minutes of Settlement and found the resolution reached to be fair and appropriate, but determined that an order of the Tribunal was not necessary and therefore dismissed the appeal. The Tribunal stated the following in its Decision and Order (the “Order”):

Section 6(2) of the [MVDA] provides that a registration may be made subject to such conditions as are consented to by a registrant. In this case, the appellants have consented to terms and conditions being attached to Mr. Sada’s registration and the Registrar may attach those terms and conditions pursuant to s. 6(2). I therefore see no need for the Tribunal to impose them by order.

In view of the fact that the parties have reached a settlement that resolves all of the issues raised in the Notice of proposal, I make the following order:

Order

The appeal in this matter is dismissed.

6The Registrar requested reconsideration of this decision on May 3, 2018. The parties were given an opportunity to make submissions on the request. On June 12, 2018, the parties provided joint submissions in support of the request for reconsideration.

7The parties submit that the Tribunal made a “significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made”, and that the Order should be varied under Rule 18.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”).

8The Executive Chair has delegated to me her responsibility to decide this request for reconsideration.

9For the reasons that follow, I vary the Order as set out below.

analysis

Submissions

10In their joint submissions, the parties argue that by dismissing the appeal, the Tribunal directed the Registrar to carry out its proposal to refuse registration of both Mr. Sada and the Corporation, notwithstanding the agreement to settle on the basis that the Corporation withdraw its application and Mr. Sada be registered on conditions.

11The parties refer to s. 9(4) of the MVDA which states:

Where no request for hearing

(4) If an applicant or registrant does not request a hearing in accordance with subsection (2), the registrar may carry out the proposal.

12The parties submit that dismissing an appeal has the same effect as withdrawing an appeal, and allows the Registrar to carry out its proposal under s. 9(4) of the MVDA.

13The parties request that the Order be varied to:

a. dismiss the appeal by Canadian Car Auto Sale Corporation of the Proposal to Refuse its Registration; and

b. grant the appeal by Mr. Sada, allowing him to be registered as a salesperson, subject to the conditions outlined in the Minutes of Settlement.

Discussion

14I am satisfied that the Tribunal made a significant error of law by ordering that the appeal is “dismissed”.

15The Tribunal’s power to make an order under s. 4.1 of the SPPA is discretionary, meaning that the Tribunal may decline to issue a requested consent order. In this case, the Tribunal did not see a need to impose the terms of settlement by order, as the Registrar has the authority under s. 6(2) of the MVDA to impose conditions consented to by an applicant.

16I agree with the Tribunal that an order was not necessary to allow the parties to carry out the terms of their settlement in this case. The Corporation was capable of withdrawing its application as agreed to and the Registrar had the authority to grant Mr. Sada registration on the terms consented to by Mr. Sada, without the need for an order of the Tribunal. Contrary to the parties’ submissions, s. 9(4) of the MVDA does not operate to require the Registrar to carry out its proposal to refuse registration. Rather, that section provides that the Registrar may carry out its proposal. It is also open to the Registrar to withdraw its proposal in order to comply with the terms of settlement.

17That being said, if the Tribunal declines to issue a consent order, the Tribunal cannot simply dismiss the appeal. Rather, the proceeding will continue until the appellant withdraws the appeal, a hearing is held, or the Tribunal dismisses the appeal without a hearing in accordance with Rule 3.4.

18Therefore, I am satisfied that the Tribunal made a significant error of law by dismissing the appeal. As dismissing the appeal is the decision itself, this is the kind of error referred to in Rule 18.2(b) such that the Tribunal would likely have reached a different decision had the error not been made.

19Given that this reconsideration request is supported by all parties, and the fact that the Tribunal determined that the resolution reached by the parties is “fair and appropriate”, I will, pursuant to Rule 18.4(b)(i), vary the Order and grant the consent order that was originally requested by the parties.

ORDER

20Upon consideration of the joint submissions of the parties, I vary the Order to read as follows:

a. Pursuant to s. 4.1 of the SPPA and s. 9(5) of the MVDA, and on the consent of the parties, I dispose of this proceeding without a hearing on the terms set out in the Minutes of Settlement, attached hereto as Schedule “A”.