Leslie Harold Fernando and Tech Lan CA Auto Ltd. v. Director of Vehicle Inspection Standards, 2019 CanLII 25791

Date: 2019-01-25

Appeal from a Notice of Proposal of the Director of Vehicle Inspections Standards under the Highway Traffic Act, R.S.O. 1990, c. H.8, to revoke a Motor Vehicle Inspection Station Licence and to revoke a Registration

Between:

Leslie Harold Fernando and Tech Lan CA Auto Ltd.

Appellant

and

Director of Vehicle Inspection Standards

Respondent

DECISION AND ORDER

Panel: Cezary Paluch, Member

Appearances:

For the Appellant: Leslie Harold Fernando on his own behalf, and as agent for Tech Lan CA Auto Ltd.

For the Respondent: Patrick S. Moore, Counsel

HEARD In Person on: December 11 and 12, 2018

REASONS FOR DECISION

INTRODUCTION

1In 2004, Leslie Harold Fernando (“Mr. Fernando”) immigrated to Canada from Sri Lanka to seek a better life for himself and his family. Like so many immigrants to this country he was educated, motivated and hardworking. English was not his first language. He went back to school to become an auto mechanic and improve his language skills. He graduated from college. His dream was to build a successful auto mechanic business. He initially started with one bay but when his business flourished he expanded to three bays and eventually purchased a building with five bays. The operation of running a larger business came with bigger financial responsibilities and challenges, which he could not meet. This led to poor decision-making, cutting corners and comprising on quality of services, which has brought him before the Tribunal where the Director is requesting to revoke his licence.

2Before I get to the main dispute, I would like to make two short comments. First, I want to say something about Mr. Fernando being self-represented in this hearing – likely because he could not afford a lawyer or a paralegal. He did not have any exhibit books prepared. He only had one document to support his case, which he filed late. He did not know how to present his evidence or conduct a proper cross-examination or make submissions. His only witness was available by telephone. Another witness he wanted to call could not be contacted and was never summonsed.

3Respondent’s counsel, Mr. Moore, was very fair. He understood Mr. Fernando’s predicament. He consented to the late filing of a document and withdrew a Notice of Further Particulars that Mr. Fernando had just recently received. He did not press Mr. Fernando very much in cross-examination. He could have been more persistent and forceful, but he was not. He allowed Mr. Fernando to present his case as best as he could. The tribunal world is all about fairness and allowing parties to present their case as best as they can.

4As a result, I admit this case has been a challenge for me. Mr. Fernando is a soft spoken, trusting, polite and cooperative individual. He willingly took responsibility for his actions and admitted to having trouble understanding the requirements that the law requires of him in operating his inspection station. The law says that that the Director may revoke a motor vehicle inspection station licence (“MVIS”) and revoke the registration of a motor vehicle inspection mechanic on any of the grounds, or reasons, listed in the Act.

5The other thing I wanted to say is something about the style of this decision. I have tried to write this decision in very plain language so Mr. Fernando can understand and not be confused by this decision. I believe that this is very important for adjudicators to do in every decision, but even more so here, when one party is self-represented. I hope that by reading this decision, Mr. Fernando can move forward and understand the seriousness of his failure to follow the rules and allow cars to be certified as roadworthy when they were not.

OVERVIEW

6Mr. Fernando and his corporation, Tech Lan CA Auto Ltd. (“Tech Lan Auto”)¹, the appellants, have appealed a Notice of Proposal issued on September 4, 2018, by the Director of Vehicle Inspections Standards to revoke the MVIS licence of Tech Lan Auto, and also the registration of Mr. Fernando as an MVIS mechanic (the “NOP”).

7The Tribunal’s jurisdiction to deal with Mr. Fernando’s appeal relating to the NOP of the Director is provided in s. 95(4) of the Highway Traffic Act (the “Act”). Under that section, when the Director proposes to take certain actions, including the revocation of a licence, the Director is to issue a NOP. The licensee, upon receipt of a NOP, is then entitled to request a hearing as Mr. Fernando did in this matter. The Tribunal under s. 95(4) may by order direct the Director to carry out his or her proposal or refrain from carrying out his or her proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act, and may substitute its opinion for that of the Director.

8The Director alleges several grounds, or reasons, in the NOP for the proposed revocation. The allegations relate to the appellant’s participation in the MVIS program, and can be summarised as follows: Tech Lan Auto has been convicted of several offences related to the MVIS program; Mr. Fernando himself has been convicted of making false statements in a safety standards certificates; Tech Lan Auto and Mr. Fernando issued several safety standards certificates to vehicles that did not meet the prescribed performance standards or issued certificates for cars that were not even inspected; audits conducted in March and August 2018 revealed that Mr. Fernando did not complete the required light-duty vehicle inspection reports or provide them to the customers or keep record of them on file; and Tech Lan Auto and Mr. Fernando pre-signed several safety standards certificates.

9Mr. Fernando admits to some of this conduct but explains in his Notice of Appeal that he did not understand what the false statements in the safety standards certificates were, that he had difficulty keeping records and that he relied on and trusted other mechanics in issuing the safety certificates.

10For the reasons that follow, I am satisfied on the evidence that there are sufficient grounds for the proposed revocation of Tech Lan Auto’s MVIS licence, as well as revocation of Mr. Fernando’s registration as a MVIS mechanic.

11Accordingly, I direct the Director to carry out the proposal.

ISSUE

12The issue before me is whether the proposal of the Director to revoke the appellant’s MVIS license and registration should be upheld.

LAW

13Under the Act, the Director may revoke a motor vehicle inspection station licence on any of the grounds listed in s. 91(8) of the Act² and also revoke the registration of a motor vehicle inspection mechanic on any of the grounds in s. 93 the Act³.

14Essentially, in this case, the Director relies on clauses (a), (b), (d) and (e), specifically that:

• a false statement was made in a safety standards certificate;
• a false statement was made in a certificate signed by the licensee;
• any inspection was incompetently performed; and
• the licensee has not complied with the Act or the regulations.

15With respect to revocation of Mr. Fernando’s registration as an MVIS mechanic, similar grounds are set out in ss. 93(a), (b) and (c) with the Director in this case relying on all three grounds as follows:

• a false statement was made in a safety standards certificate;
• an inspection was incompetently performed; and
• the registrant has not complied with the Act or the regulations.

16I must determine if there are grounds for the proposed revocations. The onus is on the Director to prove, on a balance of probabilities, at least one of the grounds in the NOP.⁴ The onus means that it is the Director that must prove his case and not Mr. Fernando. The Tribunal may order the Director to carry out his proposal or refrain from carrying out the proposal and to take the action that the Tribunal considers the Director ought to take in accordance with this Act and the regulations. The Tribunal may substitute its opinion for that of the Director.

EVIDENCE AND ANALYSIS

17The appellant is the sole mechanic and the owner of a garage, which he operates as a corporation. The appellant first obtained his MVIS licence in 2010.

18During its first several years of operation, it appears that the appellant’s MVIS licence had a clean record. It was in 2015 that things seemed to get out of hand, with the appellant being charged and subsequently convicted in 2016 of various offences under the Act. These charges show a clear and repetitive pattern of conduct and demonstrate difficulty on Mr. Fernando’s part with complying with prescribed rules.

Convictions and charges against Mr. Fernando as a motor vehicle inspection station mechanic:

• Two convictions dated October 6, 2016, under s. 99(2) of the Act for making a false statement in a safety standards certificate;
• A further 5 charges under s. 99(2) are before the courts; and
• A further 55 charges under s. 9.1 of Regulation 601 are before the courts with respect to alleged failure to complete light-duty vehicle inspection reports or keep a record of them.

Convictions and charges against Tech Lan Auto re motor vehicle inspection station licence:

• Two convictions dated October 6, 2016, under s. 99(2) of the Act for vehicles not being inspected prior to issuing a safety standards certificate;
• Two convictions for failing to maintain inspection equipment in proper working order contrary to s. 4(2) of Regulation 601;
• A further 5 charges under s. 90(3) of the Act are before the courts; and
• A further 55 charges under s. 10(1)(a.1) of Regulation 601 are before the courts.

19In addition to the above-noted convictions and charges, I am satisfied based upon the evidence that the appellant issued the following safety standards certificates (“SSC”) for vehicles that did not comply with the prescribed performance standards:

• SSC # 23141696 dated November 10, 2015;
• SSC # 26159021 dated October 28, 2017;
• SSC # 26905770 dated May 28, 2017;
• SSC # 27228854 dated July 7, 2018;
• SSC # 27228830 dated July 6, 2018;
• SSC # 27228840 dated July 6, 2018; and
• SSC # 27228909 dated July 17, 2018.

20As outlined below I find that Both Tech Lan Auto and Mr. Fernando issued safety standards certificates without having inspected the motor vehicles contrary to ss. 90 and 99 of the Act.

21Audits completed in March and August 2018 by Ministry of Transportation Officers revealed that Mr. Fernando did not complete light-duty vehicle inspection reports, contrary to s. 9.1 of Regulation 601. As he did not complete these reports, he also did not provide such reports to the customers or keep record of them on the premises as required by ss. 9.2 and 10 of Regulation 601.

22I have considered the past conduct of the appellant both as the operator of an MVIS station and as an MVIS mechanic and accept the position of the respondent that there are grounds for revocation of the MVIS licence and the mechanic’s registration.

23The purpose of licensing motor vehicle inspection stations and registering motor vehicle inspection mechanics is to protect public safety. The MVIS program oversees the inspection of vehicles at approved facilities and the issuing of safety standards certificates. Under this program, the Ministry licenses qualified garage operators to conduct mandatory motor vehicle safety inspections to certify that vehicles meet minimum safety requirements. Inspections are normally required when an event such as the sale of a used vehicle take place. An SSC is a document issued by a licensed MVIS station that is registered with the Ministry, and it certifies the roadworthiness of a vehicle at the time of inspection.

24The MVIS program and the use of SSCs play an essential role in maintaining public safety on Ontario highways. A review of the Ministry records indicates conclusively that the appellant abused the use of the SSCs and did not comply with the rules and regulations of the MVIS program. There are four main areas of concern in this case, which I have summarized under the following headings.

i) Issuance of Safety Certificates Without Conducting an Inspection of the Vehicle

25The Act is very clear and requires that an SSC shall not be issued to a vehicle unless the vehicle has been inspected by a motor vehicle inspection mechanic at the motor vehicle inspection station⁵. In other words, any inspected vehicle must be inspected by the individual mechanic (and not by anyone else) at the licensed garage or inspection station. The only registered mechanic at Tech Lan Auto was Mr. Fernando, so any vehicle that received a safety certificate from Tech Lan Auto must have been inspected by him and no one else. This is why the actual SSC itself is to be signed by both the inspecting mechanic (Mr. Fernando) and the licensee, Tech Lan Auto.

26The evidence established that Mr. Fernando on numerous occasions issued SSCs for vehicles that he never inspected and were never at his garage. For example, Officer Michael Kerr testified that on November 16, 2017, he attended in Peterborough to meet with an owner of a 2002 Jeep that was apparently inspected by the appellant on October 28, 2017. The owner admitted to Officer Kerr that he never took his car to the appellant’s inspection station. He merely paid $250 cash and provided the necessary information to a friend, who then obtained the fraudulent SSC.

27Similarly, on July 26, 2018, Officer Philip Kimball testified that he attended at the residence of the owners of a 1998 Chevy truck for which an SSC was issued by Mr. Fernando. The owner admitted to Officer Kimball that he did not take the truck to Mr. Fernando’s garage but merely provided the vehicle identification number and mileage to a friend, who arranged for the SSC.

28As a result of his investigation of Tech Lan Auto, Officer R. Stickan testified that he created a detailed chart⁶ for the years 2010 – 2018 and noted two anomalies that raised “red flags” for him based on the data he collected related to the SCCs that were being issued by Tech Lan Auto. First, although the garage was located in Scarborough, many of the vehicles for which certificates were being issued were located in faraway cities such as Kingston, Peterborough or Bancroft. It just did not make any practical sense for an owner to drive that far to Scarborough to have a vehicle inspected when there were garages much closer. The second irregularity was that the number of issued SCCs kept increasing significantly since about 2010. Mr. Fernando issued 2,000 certificates in 2017 (in comparison only 360 were issued in 2010). Officer Stickan explained that since it normally takes a mechanic 1-2 hours to complete one inspection, these lofty numbers indicated to him that this would be more than any one person could ever manage. Again, Mr. Fernando was the only person at his garage who had the legal right to conduct the inspections and this is something he could not assign to someone else. Officer Stickan opined that a good number of these vehicles were not even going to the inspection station as the law required.

29When Officer Wong visited Mr. Fernando at his garage on March 22, 2018 to conduct an audit, Mr. Fernando admitted to him that he did not inspect all of the listed vehicles for which he issued SCCs for the time period in Officer Stickan’s chart. Similarly, when Officer Kimball questioned Mr. Fernando at his garage on August 9, 2018, he again admitted to selling SSCs for $70-80 for a period of 2-3 years without looking at the vehicles, attributing it to money he needed to run his business. This was consistent with Mr. Fernando’s own testimony at the hearing when he admitted in cross-examination to signing certificates for $80 without actually doing any inspections on the cars.

30I find that Mr. Fernando provided no acceptable explanation for his behaviour in essentially participating in a scheme to issue fraudulent safety certificates. This was not an isolated incident but lasted for several years and involved numerous vehicles in different cities. His only clarification was that he needed money to run his business. I am of the view that the appellant’s personal financial situation, in the circumstances of this case, does not provide a justification for his actions. Moreover, his actions not only show poor judgment and insight, but raise a more serious concern of not acting within the law. I also find that Mr. Fernando issued and signed SSCs for vehicles that were not inspected by him and therefore were not made by the motor vehicle inspection mechanic who inspected the vehicle, contrary to s. 90(3)⁷ of the Act and also constitute a false statement under s. 99(2) of the Act.⁸

ii) Completion of Certificates That Did Not Meet Performance Standards

31The second area of concern is that the appellant completed and signed SSCs for vehicles that did not meet the minimum required standards. The Passenger/Light Duty Vehicle Inspection Standard is defined in Regulation 611 by reference to the “Reference Handbook entitled ‘Passenger/Light-Duty Vehicle Inspection Standard’” which sets out which of a vehicle's components and systems must be checked, and what condition they must be in, for a vehicle to be declared roadworthy (i.e. certified).

32It is clear from the evidence introduced by MTO Officers Stickan, Kerr, Wong and Kimball, and from the uncontested documentary evidence and colour photographs of faulty components, as will be discussed below, that inspection certificates were being issued by Mr. Fernando and Tech Lan Auto contrary to the regulatory requirements of a licensed MVIS, and vehicles should not have received the certificates at all or without additional repairs. This posed a potentially serious risk to the public.

33Officer Stickan who was qualified as an expert witness in the field of auto mechanics testified that on December 4, 2015, he attended at the residence of C.F. after the issuance of an SSC by the appellant on November 2, 2015. On visual inspection, he discovered an audible exhaust leak from the rear manifold, clouded headlight lenses and an inoperative parking brake that did not meet the required standards under Regulation 611. As well, in 2015 Officer Stickan inspected a truck in Hamilton Township only 11 days after the appellant had issued a certificate for this vehicle. He noted a badly worn rear tire and missing exhaust pipe. It was his opinion that these defects were all present at the time of the safety inspections. He also explained that only one defect is required to fail a safety in accordance with the law.

34The most egregious examples of faulty certificates were found by Officer Kimball, who was qualified as an expert witness in the field of auto mechanics. He inspected several vehicles that were certified by Mr. Fernando as roadworthy but on further inspection should never have passed a safety inspection because of defective components. For example, in July 23, 2018, only 16 days after a certificate was issued by Mr. Fernando, he inspected a 2006 Ford Escape that had only travelled 206 kilometres since its inspection, and noted an inoperative parking brake that he opined was present at the time of the inspection.

35On August 2, 2018, Officer Kimball inspected a 2005 Pontiac that received a safety certificate 16 days prior from Mr. Fernando and it had a leaking fuel line, large rust holes and a defective ball and socket joint/tie rod. In his testimony, Officer Kimball described that gas was pouring out from the fuel line and this was an extreme hazard to public safety. He described massive rust holes in the rocker panels that someone sprayed with foam to seal and mask the area. It was his opinion that these defects were present at the time of the safety inspection.

36I note that when Mr. Fernando signed the safety certificates he acknowledged, in writing, each and every time, that the inspected vehicle “had been inspected in accordance with the provisions of Sections 88 to 100 of the HTA, and Regulations issued thereunder, and the items inspected met the prescribed standards on the date of inspection.” (emphasis added)

37All of these repeated incidents are indications to the Tribunal that Mr. Fernando did not comply with the law. This is of grave concern. It reveals a total lack of care and a disregard for the safety of others - in many cases his own customers. Some of the defects were blatant structural defects that any lay person could have seen. It is striking that Mr. Fernando kept conducting substandard inspections in 2018 after an audit by Officer Wong in March 2018 revealed deficiencies, and in the face of a growing number of charges registered against him and his MVIS for the breach of law this occasioned. Had he truly been concerned it would have been simple enough to stop, or at a minimum, take the necessary measures to change how he would operate in the future to avoid similar situations, and demonstrate the requisite intention to operate the business within the law.

iii) Failure to complete Passenger/Light Duty Safety Inspection Reports (“LDS Reports”)

38The third area of concern is that the appellant did not complete and issue inspection reports with each safety certificate. This is a separate document from an SSC. Alarmingly, it appears that this was not done at any time with the hundreds of certificates that were issued by Mr. Fernando.

39On July 1, 2016, the Ministry of Transportation introduced new safety inspection standards in Ontario for all SSC inspections. The new standards include a requirement that an inspection report must be provided to every consumer, noting important information about the results of the inspection including measurements for specified components (e.g. tire tread depth) and any warning lamps that are illuminated. Licensees were allowed to create their own report provided it met all the requirements set out in s. 9.1 of Regulation 601.⁹

40On March 22, 2018, when Officer Wong attended at Mr. Fernando’s garage and asked for the LDS Reports, which Mr. Fernando was required to keep at the premises for one year, he could not produce any.¹⁰ In July 2018, when Officer Kimball met and questioned M.S., who had his car certified by Mr. Fernando, M.S. stated that he never received the LDS Report with his certification which he should have been provided with.

41Therefore, I find that the appellant did not provide to his customers the LDS Reports as he was required to do under the law, nor did he keep records in a manner consistent with the regulations. At the hearing there was no indication of a plan or perhaps the hiring of a bookkeeper to address this problem. As such, I see the issue of failure to issue and keep these reports as further adding to proof that the appellant has not complied with the Act.

iv) Garage Equipment Not Up to Standards

42The fourth area of concern is that Mr. Fernando’s garage equipment was not up to standards to conduct the inspections as required by the Regulation 601.¹¹ As early as November 2015, an MVIS Audit Report revealed that his headlight aim tester was still in the box. In January 2016, another audit noted again that the headlight aimer was unassembled. When asked by Officer Wong how he checks the headlight aim according to the regulation, Mr. Fernando replied that he just switches the lights on to see. Again on March 22, 2018, another audit report noted the laser levels on the headlight aim tester and the rotor measuring device were inoperative, amongst other deficiencies with the equipment needed to conduct the safety inspections properly.

CONCLUSION:

43The Tribunal finds, based on the appellant's past misconduct, as set out above, that the Director has met his onus and has established all of the grounds relied upon in the NOP.

44I had the opportunity to hear and consider considerable evidence over two days. This included the oral testimony of 5 witnesses as well as documentation. I have carefully considered all of that evidence. The respondent’s counsel submitted in his final arguments that any probationary or conditional licence terms are not appropriate in this case and the only appropriate disposition is a direction for the Director to carry out its NOP (i.e. revocation of the licences). The appellant submitted that I should order the Director not to proceed with the NOP because going forward he will complete the SSCs in the proper manner.

45I do not have sufficient evidence to conclude that Mr. Fernando has truly changed his ways such that I could be satisfied that he would not pose a risk to the public, or that he would, from now on, conduct himself with honesty and integrity, and in accordance with the law.

46But I have also come to the conclusion that Mr. Fernando may re-apply to the program in the future. I do not want Mr. Fernando to give up on his dream. I believe he does deserve a second chance. I believe he is a quality mechanic and has a lot to offer in terms of his experience and positive disposition. The harm he has caused to others and to himself is evident but I believe that he can learn from this. I encourage Mr. Fernando to pursue a course whereby he may fully acquire the knowledge and understanding of the requirements as set out in the Act and regulations, should he wish to apply for registration in the future. It would certainly be beneficial to have applicants pass a written test prior to registration into the program. In any event, by asking to be licensed as either an MVIS or an MVIS mechanic, Mr. Fernando must understand that he is agreeing to comply with the various regulations under the Act that govern those activities.

A. ORDER

47For the reasons set out above, pursuant to section 95(4) of the Act, I direct the Director to carry out the NOP to revoke the licence of the appellant as a Motor Vehicle Inspection Station and to revoke his motor vehicle inspection station mechanic’s registration.

Footnotes

1. 1Mr. Fernando is the president, director and sole mechanic of Tech Lan Auto. At times, for ease of reference, I refer to both Mr. Fernando and Tech Lan Auto as one and the same as the “appellant” or “Mr. Fernando”.
2. 291(8)(a) any person has made a false statement in the application for the licence or a renewal thereof or in any safety standards certificate signed by the licensee or a person authorized in writing by the licensee or in any report, document or other information required to be furnished by this Act or the regulations or any other Act or regulation that applies to the motor vehicle inspection station; (b) any inspection authorized by the licence is incompetently performed; (c) the licensee or any motor vehicle inspection mechanic employed in the motor vehicle inspection station has misrepresented the condition of a vehicle with respect to the standards of equipment and performance prescribed by the regulations upon an inspection of the vehicle in the station for the purpose of determining whether or not to issue a safety standards certificate, sign a vehicle inspection record or affix a vehicle inspection sticker; (d) there is a breach of a condition of the licence; (e) the licensee does not comply with this Act or the regulations; (f) the inspections that can be performed by the motor vehicle inspection station are misrepresented; or (g) a change in the officers or directors of any corporation that is a licensee would afford grounds for refusing to issue a motor vehicle inspection station licence under clause (3) (a).
3. 393(a) the registrant or the licensee has made a false statement in the application for registration of the registrant or in a safety standards certificate or in any report, document or other information required to be furnished by this Act or the regulations or any other Act or regulation that applies to the registrant; (b) any inspection performed under the authority of the mechanic’s registration is incompetently performed by the registrant; or (c) the registrant does not comply with this Act or the regulations.
4. 49043 v. Director of Vehicle Inspection Standards, 2014 CanLII 79257 (ON LAT).
5. 5S. 90.3
6. 6Respondent’s Exhibit Book, Tab 16.
7. 7Prerequisite for issue of safety standards certificate or affixing vehicle inspection sticker - A safety standards certificate in respect of a motor vehicle shall not be issued or a vehicle inspection sticker affixed to a vehicle unless, (a) the vehicle has been inspected by a motor vehicle inspection mechanic in the motor vehicle inspection station and the vehicle complies with the inspection requirements and performance standards prescribed by the regulations; and (b) the safety standards certificate or a vehicle inspection record, (i) is made by the motor vehicle inspection mechanic who inspected the vehicle, and (ii) is countersigned by the licensee or a person authorized in writing by the licensee.
8. 8Any person who makes a false statement in a safety standards certificate is guilty of an offence and on conviction is liable to a fine of not less than $400 and not more than $20,000.
9. 9Section 9.2 - A licensee shall provide each person that has had a vehicle inspected using the Passenger/Light-Duty Vehicle Inspection Standard with the completed inspection report required by section 9.1
10. 10Section 10 - A licensee shall keep on the licensed premises a copy of each inspection report prepared under section 9.1 for a period of one year from the date of inspection.
11. 11Section 4(1) – It is a condition of a licence that the licensee ensure that premises in which inspections are carried out, be equipped with devices appropriate to the class or type of vehicle to be inspected for, (i) aiming headlights, (ii) measuring wear in brake system components, (iii) measuring tire tread depth, (iv) measuring play or wear in steering and suspension systems, (v) detecting leaks in compressed fuel systems, (vi) measuring the torque of wheel and rim fasteners; (vii) measuring window tint; and that they be maintained in a clean and safe condition.