Tribunal File Number: 11801/GAR
Appeal from a Notice of Proposal of the Director of Vehicle Inspection Standards under section 91(8) and section 93 of the Highway Traffic Act, R.S.O.1990, c.H.8 to Revoke a Motor Vehicle Inspection Station Licence and a Motor Vehicle Inspection Station Mechanic Registration
Between:
2089884 Ontario Inc. o/a Babba Zee Car Sales & Auto Repair and Jyotinder S. Sandhu Appellants
and
Director of Vehicle Inspection Standards Respondent
Decision and Order
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
- For the Appellants: Justin Jakubiak, Counsel
- For the Respondent: Patrick Moore, Counsel
Heard in Toronto: July 3, 2019
Reasons for Decision and Order
Background
1This is a hearing before the Licence Appeal Tribunal (the "Tribunal") arising out of a Notice of Proposal issued by the Director of Vehicle Inspection Standards (the "Director") on December 5, 2018 and a Notice of Further and Other Particulars issued by the Director on May 23, 2019. The Director proposes to revoke both the motor vehicle inspection station ("MVIS") licence of 2089884 Ontario Inc. o/a Babba Zee Car Sales and the MVIS mechanic registration of Jyotinder S. Sandhu, because they made false statements on safety certificates issued by them, incompetently performed inspections and failed to comply with the Highway Traffic Act (the "Act"), citing s.91(8) and 93 of the Act. Mr. Sandhu is the officer and director of the MVIS licensee ("Babba Zee") and the only mechanic at the MVIS. The Director relies, primarily, upon convictions against both the MVIS and Mr. Sandhu as mechanic under the Act and/or its relevant regulations.
2The appellants do not dispute the convictions, all of which were registered as guilty pleas, but states that the violations of the Act and regulations when considered in the context of the appellants' record since 2007 do not warrant revocation. The appellants are agreeable to terms and conditions on their registrations to mitigate the Director's concerns.
3Section 95(4) of the Act states that the Tribunal, after holding a hearing, may direct the Director to carry out his proposal or refrain from doing so and the Tribunal may substitute its opinion for that of the Director.
Result
4After carefully considering the evidence and submissions, and for the reasons set out below, I direct the Director to carry out the Notice of Proposal.
Preliminary Matters
5There were two previous adjournments of this hearing. As a term of the second adjournment, Vice-Chair Hunter suspended the appellants' MVIS licence and registration until the commencement of the hearing. Generally, under s. 95(6)(b) of the Highway Traffic Act, (the "Act") when a licensee appeals a notice of proposal to revoke the licence or registration, the licence is deemed to continue, allowing a licensee to operate until the Tribunal has made its decision. When making its order suspending the licence on May 8, 2019, the Tribunal stated that it had heard submissions regarding activity under the appellants' licences between March 29 and May 2, 2019 which raised concerns about public safety and that continuation of the suspensions would be at the discretion of the hearing adjudicator.
6After hearing submissions from counsel at the close of the hearing on July 3rd, I issued a written order on July 5, 2019 lifting the order of suspension of the licence of 2089884 Ontario Inc. and the registration of Jyotinder Sandhu as a MVIS mechanic thereby allowing them to continue to operate according to their licence and registration pending the Tribunal's decision in this matter.
7At the hearing, Paramjit Chawla, a Punjabi interpreter provided translation services and was present throughout to assist Mr. Sandhu.
Evidence and Analysis
8As noted above, a Notice of Proposal was issued in December 2018 and a Notice of Further and Other Particulars was issued in May 2019, while this matter was ongoing. These will be dealt with separately in my analysis, after which I will address the issue of whether conditions are appropriate to mitigate the Director's concerns.
Issue 1: The record of convictions as set out in the Notice of Proposal
9The purpose of licensing motor vehicle inspection stations is to protect public safety. To that end, motor vehicle inspection stations are required to meet legislative requirements. The Director's first witness, Glen Dodwell, a structural inspection officer with the Ministry of Transportation ("MTO"), testified about the MVIS program, the details of which provide context for the evidence at this hearing. One of his duties is to perform mechanical examinations pertaining to non-compliant Safety Standard Certificates ("SSC") and structural inspection certificates issued. An SSC is required when a used vehicle is being transferred from one person to another and ensures that the minimum safety standards set our in the Act are met. Concerns regarding an issued SSC usually come to MTO's attention as a result of public complaints.
10Mr. Dodwell stated that to be licensed as an MVIS, the garage must be incorporated as a business and must own or lease premises where the inspections will take place. There are requirements that the garage must supply certain tools and equipment, evidenced by a "tool equipment certificate". Tools must be kept on the premises. The automotive service technician (the mechanic) carrying out the inspections must be registered with MTO. The MVIS licence is specific to the location stated on the licence. When the licence is issued, the licensee is given a binder which sets out the detailed requirements under the relevant regulations under the Act: what the relevant inspection criteria are and what a mechanic must look for before he or she can issue a safety certificate. Two signatures are required on a certificate - the mechanic's and that of the holder of the MVIS licence. Together they certify that the vehicle meets the requirements in the regulations and is therefore safe to operate on the highway. It is not disputed that at all material times, Mr. Sandhu was the only registered MVIS mechanic at the station.
11The MVIS must keep a copy of the certificate and any repair records relating to it for one year after the certificate is issued. These must be kept at the licensed premises. The MVIS licence must be renewed yearly.
12The SSC are numbered and issued to the MVIS in books of 20. The numbered certificates are registered to the MVIS. In addition to the SSC, the station must maintain work orders with the SSC and, as of 2016, must issue an inspection report to the customer which gives a brief synopsis of the vehicle at the time of inspection.
13These requirements described by Mr. Dodwell illustrate that the operation of a MVIS is a highly regulated business.
14Mr. Dodwell testified that he investigated some, but not all, of the incidents that led to the appellants' convictions. In September 2018, he reviewed all the records relating to the appellants and based on that review, citing a history of convictions for both Babba Zee and Mr. Sandhu as the mechanic since 2007, he made a recommendation to his manager that the registrations be revoked. Mr. Dodwell testified that when a mechanic is convicted as many times as Mr. Sandhu was, it reflects a failure to make the changes required to comply with the Act and regulations and raises concerns about public safety.
15In his testimony, Mr. Dodwell reviewed the various convictions against the appellants between 2007 and 2018. There are 26 in total; 17 against Babba Zee and nine against Mr. Sandhu as the mechanic. On cross-examination, Mr. Dodwell agreed that the convictions relate to investigations arising from SSC issued for eight vehicles. One investigation can, and in this instance, did, give rise to more than one charge and conviction against the MVIS and the mechanic.
16The majority of the convictions centre on issuance of an SSC when the vehicle did not comply with inspection requirements and performance standards prescribed by the regulations (s.90(3)(a) of the Act) and for making a false statement on an SSC (s.99(2) of the Act). When a public complaint comes to MTO's attention, an inspector will make arrangements with the owner of the vehicle to attend at a garage of the owner's choice and will carry out their own SSC inspection and make a list of findings. Mr. Dodwell testified that the SSC sets out minimum standards that must be met. The inspection is mainly visual, and defects are generally not challenging to detect.
17By way of example, MTO investigated a vehicle that had been inspected by the appellants in December 2010. Nine defects were noted, among them a front coil spring that was broken and severely rusted and heavy corrosion in the brake line. As a result of his findings, the MTO inspector removed the licence plate from the vehicle and stamped "unfit" on the vehicle registration. Mr. Dodwell testified about an inspection he did in June 2015 in which he noted defects in the parking brake and issues with the steering system; both defects meant the vehicle should not have passed inspection by the appellants. On this occasion and again in September 2015 when he followed up with Mr. Sandhu about another inspection, he went to the MVIS location at 16 Taber Road to complete an audit report but did not find Mr. Sandhu there. He then went to 42 Racine Road where Mr. Sandhu operates a used car dealership. Mr. Sandhu's wife is generally at the office there. On both occasions, he noted that the SSC and inspection records were found at the Racine Road location, not at 16 Taber Road where the regulations require them to be kept.
18In July 2017, Mr. Dodwell was involved in another investigation. Defects found, including a cracked exhaust manifold and brake issues, necessitated the removal of the vehicle plates and an 'unfit' stamp on the vehicle registration. In addition to convictions under s.90(3)(a) and 99(2) of the Act, Mr. Sandhu was convicted with failing to complete an inspection report as required by s.9.1 of Regulation 601 and Babba Zee was convicted of failing to keep copies of all SSC issued and those unused on the premises, as required by s.10(b) of Regulation 601.
19This was not the first time that the appellants were convicted of failing to keep the proper records, and on site. Prior convictions were registered in 2007, 2009, 2011 and 2016. Mr. Dodwell also testified about occasions on which, when attending at 16 Taber Road, he noted that the inspection tools were not on site, as required by regulation. No action was taken against the appellants for this infraction though Mr. Dodwell stated that he advised Mr. Sandhu about the requirement and would note it in the audit report which he prepared, a copy of which is provided to Mr. Sandhu. Mr. Sandhu explained at the hearing that he kept the tools in his car because he was concerned about theft at the garage.
20As noted above, the appellants pled guilty to the various offences. In his testimony, Mr. Sandhu acknowledged that he may have made mistakes, but stated that he "tried his best". Regarding the 2017 vehicle inspection referred to in Mr. Dodwell's evidence, he made efforts to assist and compensate the owner. But, as the Director has submitted, there was little, or no explanation offered as to why or how the vehicles in question passed inspection when the defects were, based on the evidence, easily detected, leading to a conclusion that the inspections were incompetently performed (sections 91(8)(b) and 93(b) of the Act). It is concerning that when MTO investigated, inspectors found several defects, any one of which should have prevented certification. In terms of corrective action, Mr. Sandhu stated that his son, who is not a licensed mechanic, has been assisting him on a part-time basis for several years. He is hoping that his son, who currently has a full-time job with the government, will take the required courses to get licensed and then take over the business from him.
21While I appreciate that Mr. Sandhu may want to keep this business to pass on to his son, who is not yet licensed, that is not a plan which addresses the fact that he has a record of convictions for certifying vehicles that do not meet the safety standards set out in the Act and regulations.
22Mr. Jakubiak submits that context is important here: if one considers the fact that the appellants, over a 12-year period, may have carried out more than 10,000 inspections, the severity of the record is deeply lessened; faulty inspections for eight vehicles amounts to less than 0.1% of the number of vehicles inspected. Furthermore, he submits there were no convictions in 2018 and 2019 (though I note that the conviction arising from the July 2017 investigation was registered in May 2018). He submits that the record is, in fact, de minimis. He referred me to the Tribunal decision in Little City Auto Services Inc. (Re), [2007] O.L.A.T.D.No.526 ("Little City"), also an appeal from a Notice of Proposal to revoke a MVIS licence and a MVIS mechanic licence.
23The issue to which the de minimis argument was made in Little City related to evidence that vehicles were missing annual inspection stickers. The Tribunal took into account that the number of missing stickers represented a very low percentage of the total number of inspections carried out by the appellants, slightly more than one half of a percent and noted that there was no evidence that the vehicles that were missing stickers were mechanically unsafe or defective. On the facts before me, where there is clear evidence that the SSC were issued by the appellants for mechanically unsafe vehicles, the de minimis argument is far less compelling. There is an expectation that a MVIS and its mechanic will only certify a vehicle if it meets the minimum standards set out in the Act and regulations. The Act does not provide for an allowance for a certain percentage of error in the context of public safety. I also note that Mr. Sandhu did not provide a reasonable explanation for the improper certifications nor a reasonable plan to address the issues identified.
24Failure to keep proper records and a failure to keep those records on the licensed premises was also a continuing issue. Mr. Moore stated that the location of the records may not be a paramount issue, but the fact that it has been an ongoing issue, he submits, speaks to the appellants' inability to take corrective action. The records, for example, continue to be kept at the 42 Racine location and not at 16 Taber, yet this could have been easily corrected after the convictions under s. 10 (b) of the Regulation in 2009 or 2011. Mr. Sandhu testified that no one properly explained to him that the records had to be kept at the 16 Taber location. If they had, he would have done it. That may have been a credible explanation in 2009, but after a fourth conviction for the same violation in August 2016, it is far less credible. It also ignores the fact, to which Mr. Dodwell testified, that when a person is given their MVIS licence, they are provided with a binder which details the regulatory requirements. Mr. Sandhu now states that he will buy a cabinet and keep the records at 16 Taber. A simple solution, but the fact that it is only being offered now is concerning in terms of the appellants' understanding of the need for proactive corrective action to be responsive to regulatory requirements.
25The fact a simple change like a new cabinet is being done only in response to the Notice of Proposal is concerning. There have been a series of convictions over a long period of time. There seems to be no pattern to them, but they continue. Sometimes a year or two elapses between investigations. The fact that there were no investigations in 2018 or to date in 2019, does not, in the facts before me, illustrate improvement in the appellants' operations.
26Mr. Jakubiak has submitted that I should also consider that despite the record of convictions, the appellants continued to have their licence and registration renewed. Mr. Dodwell testified that it was only after the last conviction in May 2018, and a review of the appellants' entire record that the Director decided to seek revocation. It is true that the appellants were permitted to carry on business despite their record, but I accept Mr. Moore's submission that little weight should attach to the fact of the renewals when considering whether the public safety consideration support a revocation at this time.
27Based on the foregoing, I find that the Director has proven the grounds for revocation of the appellants' licence and registration set out in s. 91(8) and 93 of the Act. The appellants have made false statements on the SSC, certifying that a vehicle was without defects when they were not, thereby misrepresenting the condition of the vehicles and incompetently performing the inspections, and failing to comply with the Act and regulations.
28I note that under s. 95(4) of the Act, the Tribunal has the power to substitute its opinion for that of the Director. I can, if consistent with the public interest and public safety objectives, decide that revocation is not warranted and, for example, place conditions on the licence and/or registration. The appellants have proposed such conditions. I will address this issue, after dealing with the allegations in the Notice of Further and Other Particulars.
Issue 2: The Notice of Further and Other Particulars
29The investigation that led to the Notice of Further and Other Particulars being issued resulted from a commercial vehicle inspection report which identified that an annual inspection sticker had not been affixed to a vehicle as required by s.8(4) of Regulation 611 under the Act. MTO Officer Philip Kimball conducted the investigation and testified at this hearing. Through his investigation, he discovered that the annual inspection was done by Babba Zee. He attended at 16 Taber on May 9, 2019 to speak to Mr. Sandhu. Mr. Sandhu was not present. He spoke to a Mr. Khan who said he was working there as a mechanic. As a result of observations made on May 9th, Mr. Kimball laid several charges against the MVIS. These included failures to have functional inspection tools, failure to display the MVIS licence, failure to keep both issued and unissued SSC on the premises, all violations under Regulation 601.
30On cross-examination, Mr. Kimball conceded that he would not have laid those charges had he known that the MVIS licence had been suspended by the Tribunal on May 8th; on May 9, the violations cited would not be applicable as Babba Zee was not in business on that date. In light of this, I give no weight to these allegations in my decision.
31Mr. Kimball did not know whether a charge had been laid regarding the alleged violation of s. 8(4) Regulation 611 (issuance of an annual inspection certificate by the appellants without affixing the inspection sticker as required). Mr. Sandhu testified that he rarely does these commercial vehicle inspections, at most two a year. He did this particular inspection as a favour to an acquaintance. He acknowledged that the sticker was not on the vehicle's windshield because it had to be repaired, but he was told by the owner that it would be affixed after the repair was completed. While this may demonstrate, again, a lack of understanding of the importance of the regulatory requirements, this incident does appear to be an isolated event. There is no suggestion in the evidence that the inspection itself was faulty. In the context of all of allegations cited and findings made by me, I give this violation less weight in my decision.
Issue 3: Should the licence and registration continue, with conditions.
32The appellants are proposing that the following conditions attach: the appellants shall obtain a cabinet and keep all records at 16 Taber; tools shall be stored on site at 16 Taber; Mr. Sandhu shall update his training; Mr. Sandhu will hire a mechanic, approved by MTO to assist him; and Mr. Sandhu shall comply with the act and its regulations. The Director is opposed to continuation of the licence and registration, with or without conditions.
33I am not persuaded that these conditions would address the issues identified in this hearing. As noted previously, the appellants were aware of the requirement to keep the SSC on premises for years. Mr. Dodwell had also advised Mr. Sandhu of the requirement to keep inspection tools on site. But no corrective action was taken. The Director's concern whether the measures would be sustained is reasonable. Conditions such as updating training and hiring an approved mechanic are unduly vague; no specifics have been offered as to how this would address the issue of making false statements on the SSC and incompetently performing inspections, though there was ample time in advance of this hearing to come up with a more detailed plan.
34I have found that the Director has proven the grounds for revocation as set out in the Notice of Proposal. Based on the evidence before me and the submissions, I conclude that conditions on the licence and registration are not appropriate.
Conclusion
35In summary, I find that the record of convictions warrant revocation pursuant to s.91(3) and s.93 of the Act. Operating an MVIS and working as an MVIS mechanic requires compliance with a strict set of standards, set out in the Act and regulations, all put in place to ensure highway safety. Based on the evidence before me, I find that the appellants have failed to comply with those standards on an ongoing basis.
Order
36For the reasons set out above, pursuant to section 95(4) of the Act, I direct the respondent to carry out the proposal to revoke both the motor vehicle inspection station ("MVIS") licence of 2089884 Ontario Inc. o/a Babba Zee Car Sales and the MVIS mechanic registration of Jyotinder S. Sandhu.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice Chair
Released: September 17, 2019