Appeal from the Notice of Proposal of the Registrar under the Motor Vehicle Dealers Act, 2002, S.O. 2002, C. 30, Sched. B. to Revoke a Registration and Appeal from an Immediate Suspension Order
Between:
Marcel Motors Ltd. o/a Eastside Better Used Cars
and
Nitin Chopra
Appellants
and
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
ADJOURNMENT ORDER
Order made by: Jeanie Theoharis, Vice-Chair
OVERVIEW
1On September 27, 2018, Marcel Motors Ltd. o/a Eastside Better Used Cars (“Dealer”) and Nitin Chopra (“Salesperson”) (together referred to as “Appellants”) filed a Notice of Appeal with the Licence Appeal Tribunal (“Tribunal”).
2The appellants appeal from the Notice of Proposal to Revoke Registration dated September 24, 2018 (“Proposal”) issued by the Registrar pursuant to the Motor Vehicle Dealers Act (“Act”) to (i) revoke the registration of the Dealer as a motor vehicle dealer, and (ii) revoke the registration of the Salesperson as a motor vehicle salesperson under the Act.
3The Registrar, pursuant to section 10 of the Act, also ordered an immediate temporary suspension of registration as a matter of public interest against both the appellants.
4The appellants, on September 27, 2018, requested a hearing to address the Registrar’s Notice of Proposal to revoke, and an Order to immediately suspend the appellants’ registration pursuant to section 10(1) of the Act.
5The in-person hearing commenced on October 2, 2018, in Toronto. The only issue dealt with on the first day of the hearing was whether the immediate suspension order ought to be extended until the completion of the hearing. In attendance were: Justin Jakubiak, counsel for the appellants; as well as Michael Burokas, counsel for the respondent.
6Following the first day of the hearing an order was issued on October 12, 2018, indicating that the parties would attend a case conference in October 2018; and the hearing would resume on November 27, 28, 2018; and January 9, 10, 17, and 18, 2019, in Ottawa, Ontario.
7At the October 30, 2018 case conference, the hearing dates were amended on consent. The commencement of the hearing would now be January 9, 2019, and continue as needed on January 10, 17, 18, and February 20 and 21, 2019. The November 2018 hearing dates were vacated.
8On January 7, 2019, the appellant’s counsel indicated that there was a break down in the relationship with the appellants and he could no longer continue to act for the appellants at the hearing. The appellants’ counsel, on behalf of his clients, sought an adjournment of the hearing to permit the appellants an opportunity to seek new counsel for the hearing.
9The respondent did not consent to the adjournment. The respondent provided submissions to the Tribunal on January 8, 2019; and the appellants, through their counsel, provided brief reply submissions.
ANALYSIS
10Upon review of the submissions, I grant the adjournment.
11The Tribunal looks to ensuring there is a fair, open and accessible process, and that proceedings before the Tribunal are resolved in an efficient, proportional and timely manner, without sacrificing natural justice and procedural fairness.
12The parties have had sufficient time to prepare for the hearing. The dates originally set for the hearing were determined taking into account the complexity of the issues, number of witnesses, and counsel, party and witness availability. Moreover, they were agreed to by the parties and their respective counsel. But, since that time there has unfortunately been a situation which results in the appellants’ counsel no longer being in a position to act for the appellants at the hearing, leaving the appellants without counsel approximately 48 hours before the hearing is to commence.
13In deciding to adjourn the hearing, I balanced the prejudice to each party and find that the prejudice to the appellants outweighs the prejudice to the respondent if the hearing was to proceed as scheduled.
14If the hearing was to go forward as scheduled, the appellants would be without counsel and would have to be self-represented in a matter that has complex issues, multiple witnesses, and is scheduled for a six day hearing. Each witness may be examined and cross examined; and the outcome of the hearing could be significant to the appellants, as the Registrar is seeking revocation of the appellants’ licences.
15The risk to the public being harmed by the appellants is minimal because the immediate suspension order continues to be in effect until the resolution of the hearing. The appellants’ have not been working in this industry since the immediate suspension order was issued in September 2018.
16I also took into account the appellants’ submissions regarding the appellant’s current mental health, which impacts the appellants’ ability to self-represent, including his ability and understanding of the complex legal issues and administrative hearing procedures.
17It is important that the hearing proceed in a manner that permits compliance with procedural fairness and natural justice principles; and ensuring a decision is rendered based on a complete presentation of evidence. Understanding the facts of the case, having had time to review the evidence, and knowing how to participate and present your case are all issues to consider. The respondent’s assertion that the appellant ought to be able to present the case to the Tribunal, and represent himself because he was present at the October 2018 hearing date, and heard the respondent’s summary of the case would not be fair in these circumstances. Moreover, the appellant was not present at the October 30, 2018 case conference, wherein further discussions would have been had about the appeal.
18I very much appreciate the position of the respondent. I agree the dates have been set for quite some time, disclosure was exchanged quite some time ago, and the respondent has prepared for the hearing, including having arranged for a number of witnesses to attend the hearing dates as scheduled. However, I find that the preparation already done, including preparation of witnesses can be utilized toward the next hearing dates, and would not have to be repeated to the same extent. I also understand that witnesses would have made work and family arrangements so that they would be available for the dates as already scheduled, but am hopeful that witnesses, upon notification of this adjournment, may be able to rearrange their schedules.
19Also, the respondent indicates that witnesses may be frustrated or unwilling to participate in future hearing dates, which would hinder the Registrar’s ability to lead its case. There is no certainty that witnesses will not participate at the rescheduled hearing. I reiterate that parties ought to consider alternative ways to introduce evidence, such as utilizing agreed statement of facts or affidavit evidence which, as was discussed at the first hearing date and noted in the case conference order, are effective means towards presenting a case before the Tribunal. The effect of agreed statement of facts and submitting some evidence by way of affidavit is recognized and useful ways to save Tribunal time and hearing resources. It minimizes the possible number of witnesses that would be needed to attend in person; minimizes or eliminates the time each witness would need to be present at the Tribunal; and also minimizes the need to prove issues that can be agreed upon. And, in cases such as this, provides benefits when hearing schedules change unexpectedly.
20I do agree that the adjournment ought to be marked peremptory, in that the appellants ought to be prepared to proceed with the hearing at the next scheduled hearing date, with or without counsel; and that further adjournments would not likely be granted, save and except for extraordinary circumstances.
ORDER
21The appellants’ request for an adjournment is granted.
22The adjournment is marked peremptory on the appellants.
23The hearing dates of January 9, 10, 17, 18; and February 20 and 21, 2019, are vacated.
24The parties shall participate at a hearing management meeting with me on January 17 or 18, 2019, via teleconference, to address the next steps required for the hearing. These are dates the parties have already acknowledged as available. If either of these dates are not available, the parties shall confirm a mutually agreed date with the case management officer that is within 30 days of this order. The items to discuss, will include for instance, the dates for the hearing, the appellants’ new counsel, and/or who the appellant is seeking to retain, and any outstanding matters that have not yet been completed to prepare this matter for a hearing. A case management officer will confirm the date and send the parties the call in details.
25Except for the provisions contained in this order all previous Orders made by the Tribunal remain in full force and effect.
26If the parties reach an agreement on the issues in dispute, the appellant shall immediately advise the Tribunal in writing.
LICENCE APPEAL TRIBUNAL
Jeanie Theoharis, Vice-Chair
Release: January 14, 2019