John Rizk v. Registrar, Collection and Debt Settlement Services Act, 2018 CanLII 59135

Licence Appeal Tribunal

Date: 2018-02-27

Appeal under section 8 of the Collection and Debt Settlement Services Act, ("Act") R.S.O. 1990, C. 14, from a Notice of Proposal to Refuse Registration

Between:

John Rizk

Appellant

-and-

Registrar, Collection and Debt Settlement Services Act

Respondent

DECISION

Adjudicator: Zahra Dhanani, Member

Appearances:

For the Appellant: John Rizk, Self-Represented

For the Respondent: Graham Adams, Counsel

Place and Date(s) of Hearing: Toronto, Ontario December 11, 2017

REASONS FOR DECISION:

OVERVIEW

1The Registrar issued a Notice of Proposal to Refuse Registration (Notice), dated August 30, 2017, which proposed to refuse the registration of John Rizk as a debt collector under the Act.

2The Registrar refused John Rizk's registration because he concluded that John Rizk would not carry on business with integrity, honesty and in accordance with the law.

3In completing his application form, John Rizk failed to provide information regarding outstanding criminal charges, which he was required to do as part of the application process.

4The Registrar testified that should this information have been provided correctly on the application he still would have denied John Rizk's registration because of the seriousness of the charges and how recently they had been laid.

5John Rizk appealed the Notice to the Licence Appeal Tribunal (Tribunal).

6I find that the Registrar did not discharge his duty to provide reasonable grounds that John Rizk would not carry out his business with integrity, honesty and in accordance with the law.

7For the reasons set out below, I direct the Registrar to refrain from carrying out the Notice and to attach to John Rizk's registration the condition that if John Rizk is convicted of the offences he has been charged with that he will immediately disclose this to the Registrar.

ISSUE

8I must decide whether there are reasonable grounds to believe that John Rizk will not, if registered as a collector under the Act, carry on business in accordance with law, integrity and honesty, as required.

9Based on the Registrar's noted concerns there are two questions I must address:

a) Did John Rizk knowingly provide incorrect information in his application for registration?

b) Do the crimes that John Rizk was charged with, provide reasonable grounds to refuse his registration?

10On both points, I find that the Registrar did not provide sufficient evidence to make their case.

LAW

11Section 6 of the Act sets out the grounds upon which an application for registration may be denied. Applicants are entitled to registration except under certain enumerated circumstances. Section 6(1)(b) specifically states:

6(1) An applicant is entitled to registration or renewal of registration by the Registrar except where:

(b) 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;

12Section 28(1)(a) of the Act makes it an offence to knowingly furnish false information in any application under the Act.

13Section 8(4) and (5) outline the powers of the Tribunal on appeals:

8(4) The Tribunal may by order direct the Registrar to carry out the proposal or refrain from carrying it out and to take such action as the Tribunal considers the Registrar 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 Registrar.

8(5) The Tribunal may attach such terms and conditions to its order or to the registration as it considers proper to give effect to the purposes of this Act.

EVIDENCE AND ANALYSIS

A) Did John Rizk knowingly provide incorrect information in his application for registration?

14On July 11^th, 2017, John Rizk applied for registration as a collector under the Act. In support of his request, he completed and filed an Application for Licence or Registration New, Reinstatement or Renewal ("Application"). John Rizk certified that the information he provided therein was true to the best of his knowledge.

15Part 4 of the application required John Rizk to answer a number of questions regarding his background. Question 9 asks:

Have you ever been convicted of an offence under any law of any province, territory, state or country, or are you currently the subject of any charges?

16John Rizk answered "no" to this question.

17The Registrar testified at the hearing. He stated that his office conducted its usual review on John Rizk's application, which included ordering a CPIC check. This review revealed that at the beginning of May 2017, John Rizk was charged with 6 offences, including charges of break and enter, and theft over $5,000.00.

18The Registrar testified that providing false information on the Application was enough to issue the Notice.

19John Rizk testified that he had made a mistake on the application and did not read the question correctly. While he conceded that the answer he provided on his application to question 9 was not correct, he was adamant that he had not done this intentionally.

20John Rizk testified that he is currently working for a debt collection agency. On the day that he began working there he was given the Application to fill out and he was asked to work as a collector immediately.

21John Rizk described that on the day he was filling out the Application, he had filled out similar applications for every province in Canada. He stated that it was all new to him, and that there were some applications he had filled out already that just asked about criminal convictions not charges. John Rizk stated that he missed the part in question 9 that asked about outstanding charges.

22John Rizk asserted that he did not think that what he was charged with was relevant to his work as a debt collector. He stated that at his company 1 out of every 20 calls is audited and that all calls are recorded. He is constantly under surveillance and so there is no room for him to act unlawfully.

23John Rizk testified that he is really happy with his work as a debt collector and that the work has allowed him to "help people in ways that he could never have imagined. Helping people get the weight of a debt off their shoulders is a priceless experience that puts a smile on my face." John Rizk stated that he needed this income for several reasons and that he could not afford to lose this job.

24John Rizk has developed an excellent relationship with this employer and they are eager to keep him on as an employee. John Rizk provided a letter from his manager, it states:

...I view John Rizk [abbreviation added] as a hard working agent. John Rizk has proven to me on multiple occasions that he is determined to succeed and enjoys helping and working with customers who are experiencing hardship. John Rizk makes sure that others succeed as well; shortly after the 3-month mark of his employment, John Rizk was selected on my team to train new hires to ensure they follow John Rizk's lead to succeed within the company...John Rizk brings a positive attitude, excellent attendance, leadership and having John Rizk here is definitely an asset. We hope to have John Rizk working with us for a very long time as he is one of my top 3 collectors.

25John Rizk acknowledged that he understood the serious nature of his work and that he promises to do his work with integrity, honesty and in accordance with the law.

26He testified and provided evidence that he called the Registrar to explain that he had made a mistake on the Application and to see if the Registrar would change his decision.

27John Rizk expressed regret for having provided inaccurate information on his application. He also argued that should he be convicted of the crimes he has been charged with, he would immediately disclose this to the Registrar.

28John Rizk has been honest with his employer about the situation with the Application, his subsequent actions to correct the situation and the current appeal he has made. John Rizk's employer has decided to keep John Rizk employed as he believes John Rizk is an asset to his team.

29It is the Registrar's burden to establish that there are reasonable grounds to believe that John Rizk will not conduct his business lawfully, with honesty and integrity. He refused John Rizk's application based on the fact that John Rizk provided false information. John Rizk argues he made a mistake and he did not intentionally omit this information. If indeed it was a mistake then I do not believe there would be reasonable grounds to refuse registration.

30The Registrar testified that providing false information on the Application was enough to issue the Notice. I disagree as people do make mistakes and in a case where I cannot find he was intentionally deceitful I cannot conclude that there are reasonable grounds that the appellant will not conduct his business lawfully, with honesty and integrity.

31I do believe that this is a mistake that could happen and more importantly the Registrar has not provided me with any evidence to find that this was not a mistake.

B) Does the recentness and seriousness of the charges constitute reason for refusal of registration?

32In an administrative proceeding, the fact of criminal conduct is not established until the Registrar proves on a balance of probabilities that the conduct occurred.

33In this case the Registrar led no such evidence.

34A criminal charge alone does not establish that the alleged conduct occurred. The fact of the past conduct must be established with evidence.

35Even a criminal conviction would not be an absolute bar to registration: the question is whether the criminal conduct provides reasonable grounds to believe the person will not carry on business with honesty and integrity and in accordance with the law.

36I am concerned that John Rizk does not think that the offences he was charged with are relevant to being a debt collector. Breaking and entering and stealing property is directly related to a person's ability to make honest and lawful decisions. These acts speak directly to a person's integrity and moral character and cannot be compartmentalized as different because it did not happen in the workplace or because it wasn't the exact crime of fraud. Not being able to make this connection points to thinking that could lead to future decision-making that could be problematic. Going forward John Rizk must understand that dishonesty in one area of your life directly impacts every other area of one's life.

37At this stage however, there is no evidence before me that John Rizk has committed the crimes he had been charged with.

38I do not find that the Registrar discharged their duty to establish past conduct that provides reasonable grounds to believe that John Rizk would not conduct business lawfully, with honesty and integrity.

CONCLUSION

39Even though I find that John Rizk should be granted registration to be a debt collector, I want to ensure that he understands that I have concerns about his conduct. Those concerns do not meet the legal threshold to refuse registration, but I believe that for the public interest component of this case, they must be stated.

40Debt collectors are privy to sensitive and private information about citizens. The Registrar submitted that the purpose of the Act is to protect the safety of debtors, the public, and the process of debt collection. Public safety is one of the highest values that someone who serves the public must uphold.

41To be a debt collector one must not only be honest, but also pay attention to the details on forms and legal documents. Especially if they are filling out legal documents where they swear that the information is the absolute truth. Questions cannot be skimmed but have to be read thoroughly and be fully understood.

42While John Rizk states that this was a mistake, it was so because he did not read the question carefully and if he did, he answered it without fully understanding what the question was asking of him. It would have been prudent to ask someone for clarification if he did not understand the question. Again, to swear that a document is correct is a very serious matter and should not be taken lightly.

43Had he knowingly provided false information on this application, it would be considered a serious and punishable offence under section 28(1)(a) of the Act.

44Going forward John Rizk must take every precaution to answer legal documents accurately and thoughtfully, without error.

ORDER

45In accordance with the authority pursuant to section 8(4) and 8(5) of the Act, I order the Registrar to refrain from carrying out the Notice and attach to the registration the condition that as soon as John Rizk is aware of the decision on the charges that are currently laid against him, that he immediately disclose to the Registrar if he was convicted of the offences.