Appeal From a Notice of Proposal of the Director of Vehicle Inspection Standards under sections 91(3)(a), (c) and (d) and 92(4)(a) and (b) of the Highway Traffic Act, R.S.O. 1990, c. H.8 - to Refuse to Issue a Motor Vehicle Inspection Station Licence to 1711621 Ontario Ltd. - and to Refuse to Register Sarkoun Samanou as a Motor Vehicle Inspection Mechanic.
Between:
1711621 Ontario Ltd. o/a Sam’s Auto Service
and
Sarkoun Samanou
Appellants
and
Director of Vehicle Inspection Standards
Respondent
DECISION AND ORDER
Adjudicator: Dawn J. Kershaw, Vice-Chair
Appearances:
For the Appellant: Sarkoun Samanou
Bernie VanPelt, Paralegal for both Appellants
For the Respondent: Douglas Lee, Counsel
Heard in London: November 19 & 20, 2018
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Sarkoun Samanou, is the owner, president and mechanic of the appellant, 1711621 Ontario Ltd. o/a Sam’s Auto Service (“Sam’s”).
2In April 2018, Sam’s applied for a Motor Vehicle Inspection Station (“MVIS”) licence.
3Mr. Samanou also applied for registration as an MVIS mechanic.
4The respondent issued one Notice of Proposal (“NOP”), dated July 25, 2018, in which he proposed to refuse both applications.
5The grounds for the refusals are as follows:
a. Sam’s previously held an MVIS licence and Mr. Samanou was registered as a mechanic at that MVIS. The Registrar refused to renew the MVIS licence on March 29, 2011, and the Tribunal confirmed the refusal on December 16, 2011.
b. Sam’s and Mr. Samanou applied for registration under the Motor Vehicle Dealers Act, 2002 (“MVDA”) in 2011 and were refused by the Registrar of Motor Vehicle Dealers. In a January 18, 2013 decision, the Tribunal concluded they had made false statements in their applications, and thereby concluded that there were reasonable grounds for belief that the appellants would not carry on business in accordance with law and with honesty and integrity.
c. Mr. Samanou applied for registration under the MVDA in 2015 and was refused by the Registrar of Motor Vehicle Dealers. The Tribunal confirmed the refusal on April 18, 2016, concluding that there were reasonable grounds for belief that the business would not be carried on in accordance with law and with honesty and integrity.
d. Sam’s premises were not equipped with the inspection devices required by legislation when they were inspected on June 12, 2018.
e. When Mr. Samanou was interviewed on June 12, 2018 in relation to the applications that are the subject of this appeal, he was not familiar with current inspection standards.
6Mr. Samanou, on behalf of Sam’s and himself personally, denies that his past conduct should have any bearing on these applications unless there are current grounds for refusing the applications. He also argues that the prior Tribunal hearings were not fairly conducted nor were the decisions fairly made, though he acknowledged he did not appeal them.
7Mr. Samanou further takes issue with the respondent’s position that he was not aware of current inspection standards. He submits two things: 1. that he has maintained his certifications throughout and 2. that it is the College of Trades that ensures compliance with standards, not the respondent. He further submits that he does not yet have the required inspection devices because of the expense and because he does not want to be accused of performing tasks for which he is not licenced, but he will purchase the tools if he is licenced.
8For the reasons that follow, I am satisfied on the evidence that there are sufficient grounds for the proposed refusals of Sam’s and Mr. Samanou’s licence and registration, respectively.
9Accordingly, I direct the respondent to carry out the proposal.
Tribunal’s powers on the appeal
10Section 95(4) of the Act sets out 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.
11In order for me to direct the respondent to carry out his proposal and refuse to issue the licence to operate an MVIS and refuse to register Mr. Samanou as a motor vehicle inspection mechanic, the onus is on the respondent to prove on a balance of probabilities at least one of the grounds for refusal.
12The purpose of the Act and regulations is the protection of public safety. MVIS’s and MVI mechanics are licensed and required to meet legislative requirements in order to protect the public safety.
ISSUES
13The following are the issues in this appeal. Because of the fact that Mr. Samanou is the sole owner, president and mechanic of Sam’s, most of the grounds for refusal in the NOP apply to both appellants. The past conduct of Mr. Samanou is relevant both to the application for an MVIS licence and to his application for an MVI mechanic’s licence.
SAM’S APPLICATION FOR AN MVIS LICENCE
14I must determine the following:
a. Is Sam’s equipment suitable for the performance of the inspections for which the licence is sought? (ISSUE 1);
b. Does the past conduct of Mr. Samanou as the sole officer and director of Sam’s afford reasonable grounds for belief that the MVIS will not be operated in accordance with the law and with honesty and integrity (ISSUE 2); and
c. Is Sam’s competent to operate an MVIS in accordance with this Act and the regulations? (ISSUE 3).
MR. SAMANOU’S APPLICATION – MVI MECHANIC
d. Does the past conduct of Mr. Samanou afford reasonable grounds for belief that he will not act as an MVI mechanic in accordance with the law and with honesty and integrity (ISSUE 4); or
e. Is Mr. Samanou competent to act as an MVI mechanic (ISSUE 5)?
15I turn first to the proposal to refuse to issue the MVIS licence.
REFUSAL TO ISSUE MVIS LICENCE
LAW
16The Director may refuse to issue an MVIS licence for several reasons, pursuant to section 91(3) of the Highway Traffic Act, R.S.O. 1990, c. H.9 (the “Act”). In this case, the Director relies on the following:
Subject to section 95, the Director may refuse to issue a motor vehicle inspection station licence where, in his or her opinion,
(a) the past conduct of the applicant or, where the applicant is a corporation, of its officers or directors affords reasonable grounds for belief that the motor vehicle inspection station will not be operated in accordance with the law and with honesty and integrity;
(c) the applicant is not competent to operate a motor vehicle inspection station in accordance with this Act and the regulations; or
(d) the equipment and premises are not suitable for the performance of the inspections for which the licence is sought.
17I turn first to the issue of the equipment and premises.
a Are Sam’s equipment and premises suitable for the performance of the inspections for which the licence is sought? (ISSUE 1)
18The respondent’s inspector, Gibaldi, inspected the applicant’s premises on June 12, 2018. There was little dispute between the parties that at the time of the inspection, the required equipment was missing1. On inspection, Inspector Gibaldi found no steering/suspension measuring device; headlight aim tester; rotor measuring device; drum measuring device; tire tread depth gauge; torque wrench; or tint meter. Inspector Gibaldi found no problems with Sam’s premises other than the missing equipment.
19When Mr. Samanou testified on the second day of the hearing, he produced a receipt for the missing equipment (except the torque wrench), that he had bought that morning. I permitted the admission of this evidence because, despite its late submission, the respondent advised it was content that it could cross-examine Mr. Samanou about it.
20Although the tools were missing on the inspection date, Mr. Samanou rectified this. Mr. Samanou explained that because of the expense of the tools, he did not want to incur the expense unless the MVIS licence was approved. There remained some dispute about whether Sam’s had a torque wrench, which he did not purchase on the second day of the hearing, but this is easily rectified.
21Even if I accept the respondent’s testimony that Mr. Samanou had the money to buy the tools before the inspection took place because it appeared to Inspector Gibaldi that he had bought a new hoist, it is understandable why Mr. Samanou would not have wanted to buy tools when his application was pending and not approved. He admitted that he bought them after hearing the evidence on the first day of the hearing that they were mandatory because he felt it would help his case. I am satisfied that Sam’s now has the requisite tools except perhaps for the torque wrench, which can be remedied by imposing a condition of the granting of Sam’s MVIS licence that Sam’s obtain one or show evidence that he already has one.
22Although when the inspection took place, the required equipment was not present, Mr. Samanou has rectified that deficiency by acquiring all but perhaps one of the tools, which he can acquire if he needs to. I therefore find that the respondent has not proved this aspect of his NOP.
23I turn now to a consideration of the past conduct of Mr. Samanou both as the director and officer of Sam’s and personally.
b Does the past conduct of Mr. Samanou afford reasonable grounds for belief that the MVIS will not be operated in accordance with the law and with honesty and integrity? (ISSUE 2)
24Because Mr. Samanou is the president and sole owner of Sam’s, I consider his past conduct personally and as president and sole owner.
25The respondent relied in its NOP on three prior appeals by the appellants to this Tribunal, one in relation to both Sam’s former licence as an MVIS and Mr. Samanou’s former registration as an MVI mechanic, and the other two related to two refusals by the Registrar of Motor Vehicles to register Sam’s as a motor vehicle dealer and Mr. Samanou as a motor vehicle salesperson.
26The respondent takes the position that the findings in these prior Tribunal decisions speak for themselves and that the conduct that was detailed in each of the decisions is evidence of past conduct that affords reasonable grounds for belief that the MVIS will not be operated in accordance with the law and with honesty and integrity. I deal first only with the aspects of these decisions that deal with conduct. I will deal with competence separately.
27In my view the grounds in the case in which the Registrar refused to renew the MVIS licence on March 29, 2011, confirmed by the Tribunal on December 16, 2011, appear to relate to competence, so I will deal with that decision later.
28The second case the Registrar relies on is with respect to Sam’s application for registration under the Motor Vehicle Dealers Act, 2002 (“MVDA”) in 2011, refused by the Registrar of Motor Vehicle Dealers on August 23, 2012, and confirmed by the Tribunal in its January 18, 2013 decision, the Registrar alleged that Sam’s made false statements in their applications, and thereby concluded that there were reasonable grounds for belief that the appellants would not carry on business in accordance with law and with honesty and integrity.
29The allegations included:
a. Sam’s and Mr. Samanou did not disclose in their application, dated September 14, 2011 that they were involved in a hearing on September 19 & 20, 2011 to consider the Registrar’s proposal to refuse Sam’s registration as an MVIS and Mr. Samanou as an MVI mechanic;
b. Mr. Samanou failed to report previous convictions for failing to comply with the regulatory provisions of the MVDA.
c. Mr. Samanou did not disclose in his October 11, 2011 application for registration as a motor vehicle salesperson that he had prior convictions, or that he had been the subject of the prior Tribunal proceedings.
30In the NOP in relation to which the Tribunal confirmed the refusals in its January 2013 decision, the Registrar relied on the prior Tribunal decision of March 29, 2011 decision, which I will refer to when discussing competence. It further relied on allegations that Mr. Samanou made false statements in the application. The Tribunal found he did so, by failing to disclose his involvement in a proceeding, namely Sam’s appeal of the proposal to refuse to renew his MVIS licence in the fall of 2011; and by failing to provide the Registrar with sufficient further information about prior convictions when asked for it. In addition, by the time the Registrar asked for further information, the Registrar’s proposals to refuse Mr. Samanou’s and Sam’s applications had been confirmed by the Tribunal, yet that was not disclosed to the Registrar.
31The Registrar concluded that the past conduct of Mr. Samanou provided reasonable grounds for belief that Sam’s and Mr. Samanou would not carry on business in accordance with the law and with honesty and integrity.
32Finally, the Registrar also relied on the April 18, 2016 decision of the Tribunal, again under the MVDA, that confirmed the refusal to register Mr. Samanou as a salesperson. In this case, the Registrar relied on the two prior decisions, to which I have referred, above. In addition, it relied on the fact that Mr. Samanou owed an outstanding debt to the Canada Revenue Agency, which he attributed to sloppy work by his former accountant.
33The Tribunal concluded that Mr. Samanou did not demonstrate financial responsibility. It further concluded that he dismissed his prior problems as a misunderstanding rather than his fault, and that the passage of six years since he was last charged was not the only consideration. The Tribunal concluded the appellant not only had not demonstrated a change in circumstances since the Registrar’s August 23, 2012 NOP refusing registration, but also that there were credibility issues and a lack of evidence with respect to financial accountability. The proposal was confirmed.
34I must determine if the past conduct of Mr. Samanou affords reasonable grounds for belief that the MVIS will not be operated in accordance with the law and with honesty and integrity. Financial responsibility also may be relevant to the issue of whether Sam’s past conduct provides reasonable grounds for belief that the MVIS will not be operated in accordance with law and with honesty and integrity, but in this case it is a minor issue compared to the others, which I will now address.
35Sam’s argued that I should not rely on the past NOP’s confirmed by the Tribunal because of the passage of time. Sam’s submitted that the Tribunal should consider the fact that the refusal under the MVDA was seven years ago and the second MVDA refusal largely was based on the same grounds as the first. Sam’s took issue with the findings in the prior Tribunal decisions, and despite not appealing them, submitted that I should consider what Sam’s considers were mistakes made by the Tribunal in those decisions. This submission fails to address the fact that Sam’s did not appeal the Tribunal’s findings.
36I agree with Sam’s that the passage of time can mitigate past conduct; however, I find that there are reasonable grounds for believing that Sam’s will not conduct business with honesty, integrity and in accordance with the law. In this case, the past conduct shows a consistent pattern of problems with Mr. Samanou’s honesty, as found by the Tribunal, which continues to support the concerns in the NOP regarding the appellants’ past conduct.
37With respect to the appellants’ past conduct, in its 2016 decision the Tribunal found no change in circumstances since 2011. In my current assessment of the appellants’ past conduct, the most striking evidence about the past Tribunal decisions and Mr. Samanou’s conduct that led to the NOPs came from Mr. Samanou himself. He testified that not only could he not remember what his convictions were for, but also did not remember what mistakes he made, which strains credulity. In addition, he testified to a letter he said he wrote in approximately the fall or early winter of 2016, which he included in his application for this MVIS licence, in which he said he thought all the time about his mistakes and past actions and he knew what he did was wrong. Not only is this not possible if he does not remember his conviction or his mistakes, he also testified that he was only convicted because he pled guilty because he did not want to go to court, and it was not because he did anything wrong. Mr. Samanou continues to minimize his past conduct, despite the consistent adverse findings in three Tribunal appeals from 2011 to 2016.
38In order to evidence that his past conduct has changed, Mr. Samanou provided three positive written reviews of his business that he testified his wife found for him on the internet. However, none of these people testified. In addition, Mr. Samanou testified he purchased a membership with the Better Business Bureau (“BBB”) which gives potential customers an opportunity to find information on him and gives him somebody to whom he is accountable for his conduct.
39I find that despite the steps Mr. Samanou has taken, the BBB is not an agency to whom he is accountable. The BBB is an agency that provides information to potential customers about any customer complaints made against the business. In addition, while the reviews of Mr. Samanou’s business were positive, it was difficult to give any weight to them without the authors testifying. Mr. Samanou in fact testified he did not know who the customers were. In addition, even if Mr. Samanou was accountable to the BBB, he still has to satisfy the requirements under the Act. As such, his membership in the BBB does not mitigate Mr. Samanou’s past behaviour and the problems with his honesty.
40I find that Mr. Samanou, despite the passage of time, has not learned from his mistakes. If, as he testified, he cannot remember what he did wrong, he also cannot correct his mistakes. I find that the respondent has established that the past conduct of Mr. Samanou affords reasonable grounds for belief that the MVIS will not be operated in accordance with the law and with honesty and integrity. Because of my finding, I have not found it necessary to address the financial issue. I turn now to the issue of competence for the sake of completeness, though I need not decide the issue based on this finding.
Is Sam’s competent to operate an MVIS in accordance with this Act and the regulations? (ISSUE 3)
41While it is the competence of Sam’s that I am tasked with deciding, I must assess Mr. Samanou’s competence because he is the sole owner and president of Sam’s.
42With respect to Mr. Samanou’s competence, he argued that it is the College of Trades that assesses his competence, not the respondent. However, I reject that argument because section 91(3)(c) of the Act specifically sets out a lack of competence as a reason to refuse registration.
43Therefore, I turn first to an assessment of the evidence with respect to the competence of Sam’s to operate an MVIS.
44The respondent relies first on the Registrar’s refusal to renew Sam’s MVIS licence on March 29, 2011, that the Tribunal confirmed on December 16, 2011. In its decision, the Tribunal relied on the fact that Mr. Samanou was convicted on June 30, 2010 for issuing a safety certificate without a proper inspection and issuing a safety certificate for another vehicle in 2010 that was found to have defective brakes, and failed to remedy the problem when it was brought back to him two more times. Mr. Samanou pled guilty, but stated he believes he was not guilty. The Tribunal concluded its role was not to review that conviction. The Tribunal concluded that this was evidence that Mr. Samanou lacked skill and diligence.
45The Registrar also relies on the Tribunal’s finding that Mr. Samanou had a history of failing to fill out safety certificates properly, dating back to 2000 and continuing at that point up to 2010. I have relied on Mr. Samanou’s past competence only as it relates to his current competence.
46The applicant called a witness, Mr. Z., to testify with respect to the findings of past competence in the March 29, 2011 NOP and subsequent Tribunal decision. Mr. Z. has been a mechanic for many, many years, and he has worked on cars, trucks and buses. He has a 310T truck/coach technician licence and a 310S car technician licence that are in good standing. His shop is registered as an MVIS. He has no relationship with the applicant and did not know him before being asked to meet with Mr. Samanou and inspect Sam’s. He testified that the findings on the respondent’s inspections of the two vehicles it found to be unfit would not have reflected the condition of the vehicles at the time that Mr. Samanou conducted his inspections because events such as hard braking could change the condition of the vehicle as it had been at the time of Mr. Samanou’s inspection. However, the Tribunal in the December 16, 2011 decision accepted the inspector’s evidence that the defects he found would have developed over time, and not in the 18 days between the issuance of the safety certificate and the inspector’s inspection. The issuance of safety certificates on two vehicles that were found to have defects reflects on Mr. Samanou’s competence at the time.
47The respondent’s NOP addresses two other aspects of Mr. Samanou’s competence: his current general knowledge and his ability to find answers to questions.
48The respondent asserts in its NOP that Mr. Samanou lacks current general knowledge because he is not familiar with current inspection standards. Mr. Samanou disagrees and states that he has been consistently licenced as a mechanic, albeit not as an MVI mechanic specifically.
49Both Inspector Gibaldi and Mr. Z. testified with respect to Mr. Samanou’s current competence. They agreed that the auto repair industry is complicated and it is not expected that a person knows all the details, but it is expected that they ought to be able to navigate the information in the safety standards manual, or online, to find the answer. Inspector Gibaldi noted that although Mr. Samanou did not know certain details, he had internet access at his shop and was able to navigate the internet site and obtain the correct information. Mr. Z. also observed that Mr. Samanou could find answers to various questions and was able to navigate the manual.
50Inspector Gibaldi testified, however, that with respect to Mr. Samanou’s general knowledge, he asked Mr. Samanou some general questions about one of the standards that appears in the light duty passenger vehicle safety standards, specifically the difference between the level of leaks. He did so because this appears throughout that standard that came into effect in July 2016. Inspector Gibaldi testified that Mr. Samanou was unfamiliar with the classification of the level of leaks. While it is not expected that an MVI mechanic memorize the standards, this indicated to Inspector Gibaldi that Mr. Samanou was not aware of the different classifications, which to him meant Mr. Samanou had not reviewed the manual and was not competent.
51Mr. Z. agreed with Inspector Gibaldi that a mechanic who wants to do safety inspections should know that there are different categories of leaks, but also stated he did not know if it was crucial that a mechanic know the different classifications because one should not permit a car to go down the road with any kind of leak.
52Inspector Gibaldi testified that Mr. Samanou told him during his inspection that he would take any courses required. He wrote on the Audit Report: “Licencee stated he is willing to take any course to update himself in efforts to gain back his licence”. Mr. Samanou also included a letter with his application in which he stated he would do the “new certification course”, but Inspector Gibaldi testified that if Mr. Samanou was referring to the certification course to get licenced, that course does not go into any detail with respect to doing safety inspections on vehicles.
53The two witnesses differed little in their evidence about the classification of leaks. They agreed that a mechanic who wants to do safety inspections should know the different category of leaks. The fact that both witnesses testified that Mr. Samanou should be aware of the different category of leaks if he wishes to do safety inspections is an indication to me that he lacks competence. The classification came into effect in 2016, yet the applicant does not know of it.
54In addition, while Mr. Samanou both wrote a letter to the respondent and testified to the Tribunal that he would take any kind of certification course to get his licence back, he was not aware of something that appears throughout a manual that is available online and that he could have reviewed at any time since it came into effect, yet apparently did not. There is no requirement that an applicant take courses to become competent. However, this was Mr. Samanou’s suggestion.
55Mr. Samanou lacks competence as demonstrated by his current lack of basic knowledge of a recurring safety standard and his failure to adduce any evidence that he has taken any steps to address the competency issues. As I indicated above, Mr. Samanou’s evidence was that he did not remember his mistakes, which I find is an indication that he has not taken steps to reflect on them, nor could he have learned from them if he does not remember them. I find that Sam’s therefore is not competent, with Mr. Samanou as its sole owner and president, to operate an MVIS.
REFUSAL OF REGISTRATION AS AN MVI MECHANIC
LAW
56Pursuant to section 92(4) of the Act, the Director may refuse to register an MVI mechanic where in his or her opinion:
a. The past conduct of the mechanic affords reasonable grounds for belief that the mechanic will not act as a motor vehicle inspection mechanic in accordance with the law and with honesty and integrity; or
b. The mechanic is not competent to act as a motor vehicle inspection mechanic.
a. Does the past conduct of Mr. Samanou afford reasonable grounds for belief that he will not act as an MVI mechanic in accordance with the law and with honesty and integrity (ISSUE 4)
b. Is Mr. Samanou competent to act as an MVI mechanic (ISSUE 5)?
57I address these questions together because they have been answered. For the reasons, above, my findings are the same.
58I find that Mr. Samanou’s past conduct affords reasonable grounds for belief that he will not act as an MVI mechanic in accordance with the law and with honesty and integrity, and I find that he is not competent to act as an MVI mechanic.
CONCLUSION
59In summary, the respondent has proved that the appeal should be dismissed because:
- Mr. Samanou is not competent to operate an MVIS or act as an MVI mechanic in accordance with this Act and the regulations; and
- the past conduct of the appellants affords reasonable grounds for belief that the MVIS will not be operated and Mr. Samanou will not act as an MVI mechanic in accordance with the law and with honesty and integrity.
ORDER
60For the reasons set out above, pursuant to section 95(4), I direct the respondent to carry out the NOP to Refuse to Issue a Motor Vehicle Inspection Station Licence to Sam’s and to Refuse to Register Mr. Samanou as a Motor Vehicle Inspection mechanic.
LICENCE APPEAL TRIBUNAL
Dawn Kershaw, Vice-Chair
Released: February 13, 2019