Gordon Mander v. Registrar, Motor Vehicles Dealers Act, 2002, 2019 CanLII 37578

Appeal of Proposal to Refuse a Registration

Date: 2019-04-03

Appeal of Proposal to Refuse a Registration issued by the Registrar, Motor Vehicle Dealers Act, 2002, pursuant to the provisions Act.

Between:

Gordon Mander Appellant

and

Registrar, Motor Vehicles Dealers Act, 2002 Respondent

RECONSIDERATION DECISION

Before: D. Stephen Jovanovic, Associate Chair

Written Submissions By:

For the Appellant: Gordon Mander For the Respondent: Michael Rusek, Counsel

Date: April 3, 2019

OVERVIEW

1This decision deals with a request for reconsideration made by the respondent of a decision of the Tribunal dated December 24, 2018. In that decision, the Tribunal directed the respondent not to carry out a Proposal to refuse the appellant’s request for registration as a salesperson under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30 (the Act). The Executive Chair of the Tribunal has delegated to me the authority to deal with the respondent’s request. A brief history of this matter follows.

2In August 2016 the appellant submitted an application to the Ontario Motor Vehicle Industry Council in order to become registered as a motor vehicle salesperson as required by the Act. As part of the registration process he obtained a Police Information Check from the Peel Regional Police which disclosed criminal convictions in Alberta as well as an outstanding warrant for his arrest stemming from his failure to appear in court in Alberta on a 2015 assault charge.

3The respondent issued a Notice of Proposal dated December 1, 2016 proposing to refuse the appellant’s registration on the basis that his past conduct afforded reasonable grounds for belief that he will not carry on business in accordance with the law and with honesty and integrity as required by section 6 of the Act.

4Following a hearing on the Proposal requested by the appellant, the Tribunal in a decision dated June 8, 2017 ordered that he be granted registration subject to a condition. The appellant was ordered to deal with the outstanding charges in Alberta within 12 months failing which the Registrar could “take further administrative action, including a proposal to suspend or revoke registration as a result of a failure to comply with this term or condition.”

5The Registrar successfully appealed the Tribunal’s decision to the Divisional Court which ordered a “trial de novo” at which time the Tribunal could consider any evidence that the appellant had complied with his legal obligations in Alberta.

6The new hearing before the Tribunal took place on June 19, 27 and August 17, 2018. In its subsequent decision, the Tribunal found that the Registrar had not met the onus of demonstrating that the Appellant will not carry on business in accordance with the law and honesty and integrity.” Accordingly, the Tribunal directed the Registrar not to carry out the Proposal.

REQUEST FOR RECONSIDERATION

7Rule 18.2 of the Tribunal’s Rules of Practice and Procedure, Version 1 (April, 2016) provides that a request for reconsideration will not be granted unless one or more of the following criteria are met:

(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

8The respondent relies on rule 18.2 (b) and submits that Tribunal made the following errors of law or fact:

• the Tribunal applied the wrong standard of proof;

• the Tribunal placed improper reliance on a December 6, 2017 email; and

• the Tribunal failed to give proper consideration to the Divisional Court’s direction.

9The appellant did not make any submissions on the request for reconsideration despite having been given notice by the Tribunal in its letter to him dated February 4, 2019 of his right to do so.

ANALYSIS

10The starting point of the analysis is section 6(1)(a)ii of the Act which may disqualify an applicant for registration if “the past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.”

11The applicant’s history of criminal charges dates back to 1985 when he had convictions for attempting to obstruct justice and failing to appear in court. In 1987 he was convicted of assault. He was then charged in Alberta with assault in July 2015 and failing to attend court in September 2015. A warrant for his arrest was issued as a result of his failure to attend court. He moved to Ontario shortly after the 2015 charges which remained outstanding at the time of his application for registration in Ontario.

12In its decision in Ontario v. Mander, 2018 ONSC 1795 the Divisional Court allowed the appeal of the respondent from the Tribunal’s June 8, 2017 order that the appellant be registered under the Act subject to the condition that he respond to and deal with the outstanding Alberta charges within twelve months.

13The court agreed with the following statement of the Tribunal with respect to the test to be applied in considering section 6 of the Act:

Does the evidence of past conduct that is before the Tribunal indicate a high degree of trustworthiness – the elements of honesty and integrity – so that it is reasonable and appropriate to place public trust in this Appellant with the granting of a registration to sell motor vehicles.

14However, the court then found that the Tribunal failed to apply the test in a reasonable manner for four reasons. Extracts from its decision are as follows:

25. While the outstanding assault charge was not serious enough for the Calgary Police to pursue Mr. Mander’s arrest in Ontario, Mr. Mander remains subject to an outstanding arrest warrant for failure to appear in court. Respect for the judicial process is fundamental to the question of whether an individual will “carry on business in accordance with law and with integrity and honesty.” This cannot be characterized as “at best” a “lapse of judgment”; it raises directly the question of the applicant’s willingness to accede to regulatory enforcement…

26. Moreover, his failure to attend court, and the resulting and still outstanding arrest warrant, were not the result of a lapse of judgment that was corrected as soon as possible, but an ongoing failure in judgment that had already continued for at least 16 months by the time the Tribunal heard the appeal on May 2017.

27. Second, the Tribunal stated that Mr. Mander’s failure in this regard was “not an issue which raises concerns about Mr. Mander’s integrity and honesty when dealing with consumers.” In our view, this states too narrowly the legal test to be applied under the MVDA. The ability to “carry on business in accordance with the law” encompasses more than just the applicant’s dealing with consumers. It also includes his relationship with the regulatory agency charged with enforcing the MVDA and, potentially, the court.

28. Third, in paragraph 18, the Tribunal also finds that:

[T]here is simply no evidence that the Appellant is a risk to put personal interests ahead of his financial obligations to consumers.

31. Contrary to the Tribunal’s conclusion, Mr. Mander’s failure to appear in court as promised and his failure to respond to the arrest warrant because he moved to Ontario to assist his spouse’s children are indeed evidence that he is a risk to put his personal interests ahead of his legal obligations…

32. Lastly, the Registrar points out the apparent contradiction between the Tribunal’s finding in para. 19 that “there are not reasonable grounds for belief that Mr. Mander will not carry on business in accordance with the law and honesty and integrity”, and the Tribunal’s acknowledged concern that Mr. Mander “has not taken it upon himself to respond to the warrant and charge in almost two years despite his stated intention to do so on his application for registration”, which resulted in the Tribunal’s conditional order “to ensure that he complies with his obligations in respect to the outstanding warrant and charge, in accordance with the law”.

33. Clearly the Tribunal understood that Mr. Mander’s continued disregard for his legal obligations in Alberta was a reflection of his ability to act in accordance with the law and his honesty and integrity; otherwise there would have been no purpose to his registration being conditional on his belated compliance with those obligations.

15The court, however, declined to set aside the Tribunal’s order and direct the respondent to carry out its proposal finding that it would be unjust to do so based on facts which existed on December 1, 2016 and remained unchanged as of June 8, 2017. The court wrote “The Tribunal will hold a trial de novo, and may consider any evidence that Mr. Mander has now complied with his legal obligations in Alberta (emphasis added).”

16Accordingly, the court did not find that the outstanding assault charge or the failure to attend charge permanently foreclosed the appellant’s registration.

17All of the charges, including an added charge of trespass to property arising from the same incident that lead to the assault charge, had been dealt with by the appellant prior to the resumption of the second hearing on August 17, 2018. At that time the appellant testified that he was convicted of assault and paid the $1,000.00 fine; the failure to attend charge was withdrawn by the Crown; and the trespass to property charge was stayed.

18The Tribunal wrote the following in its second decision:

“63.The central question I must consider is whether the evidence before me about the Appellant’s past conduct establishes that he cannot “carry on business in accordance with the law and with integrity and honesty.”

81. Based on the above evidence and analysis, I find that the Registrar has not met the onus of demonstrating that the Appellant will not carry on business in accordance with honesty and integrity.

19I will now deal with the errors that the respondent submits the Tribunal made and that would warrant a different decision.

Did the Tribunal apply the wrong standard of proof?

20At paragraph 79 of the decision the Tribunal wrote: “I do not find on a balance of probabilities that [the appellant] is ungovernable and will be unable to observe OMVIC’s regulatory requirements.” According to the respondent, the balance of probabilities is both wrong and a higher standard than the Act provides.

21The respondent emphasizes the wording of section 6(1)(a)(ii) of the Act which provides that an applicant may be disentitled to registration if:

[T]he past conduct of the applicant or of an interested person in respect of the applicant affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.

22In Ontario v. Famous Flesh Gordon’s, 2013 ONCA 157, the court dealt with section 6(2)(d) of the Liquor Licence Act which would disentitle a person to hold a licence if:

The past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.

23The court wrote that “[t]he standard of proof provided by s. 6(2)(d) of the Act is that of ‘reasonable grounds for belief’. There is no doubt that this is a lower standard of proof than ‘balance of probabilities’.” The court went on to quote the Supreme Court of Canada decision in Mugesera v. Canada (Minister of Citizenship and Immigration, 2005 SCC 40, [2005] 2 S.C.R. 100, where it wrote, “In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.”

24In Famous Flesh Gordon’s the language used by the Board of the Alcohol and Gaming Commission of Ontario in considering section 6(2)(d) of the Liquor Licence Act was similar to that used by the Tribunal in the present case. Two paragraphs in the Board’s decision, noted by the court, were as follows:

54. More particularly, the Board has to resolve whether Mr. Barletta’s membership in the HMAC provides the reasonable grounds for the Registrar’s belief that the Licence should be revoked.

55. The onus lies upon the Registrar to prove his case on the balance of probabilities. Since the Registrar seeks the more significant remedy of revocation rather than suspension of then Licence, the evidence tendered in proof must be particularly compelling.

25The court found that the Board mistakenly read the “reasonable grounds for belief” standard as meaning proof on a balance of probabilities. Accordingly, the court ordered a new hearing.

26In my view, even if the Tribunal applied the wrong standard of proof, it is not at all clear that the Tribunal “would likely have reached a different decision” as required by rule 18.2(b) in order for a reconsideration request to be granted.

27At paragraph 46 of the decision, the Tribunal set out the legal test for registration as endorsed by the Divisional Court in paragraph 13 above and stated that it must be applied reasonably. The Tribunal thereafter dealt with the appellant’s history of criminal charges and convictions beginning in 1985 in some detail, noting that the respondent acknowledged that the earlier convictions “by themselves do not demonstrate ungovernability and would not be reason alone to refuse the appellant’s registration.”

28The Divisional Court, in its decision allowing the respondent’s appeal from the first decision of the Tribunal, wrote at paragraph 3:

The issue in this appeal is whether the Licence Appeal Tribunal (the “Tribunal” erred in concluding that Mr. Mander should be registered as a motor vehicle salesperson in Ontario while he remains subject to the outstanding arrest warrant in Alberta.

29At paragraphs 67 and 68 of the Tribunal’s second decision it wrote the following:

67. As the Registrar noted, the central focus of this appeal is the fact that at the time of his application the Appellant failed to comply with his legal obligations to attend court in Alberta in 2015; as the Registrar stated “everything stems from that.” Those outstanding legal obligations were an assault charge and a failing to appear charge.

68. The outstanding legal obligations have now been addressed. The Appellant did not plead guilty to the assault charge. He was tried, convicted, and paid the required fine. In testifying about the matter, the Appellant acknowledged and accepted the judge’s ruling that it was a very serious charge and that the punishment fit the conviction.

30Referring back to the issue before the Divisional Court and the “central focus” of the second hearing as acknowledged by the respondent, the Tribunal wrote the following:

80. In conclusion, I find as follows. The Appellant has satisfactorily resolved his outstanding legal proceedings, two of which the Crown did not take to trial and one where upon conviction he has paid the required penalty. While there was delay in resolving those matters, the Appellant does not have a pattern of non-compliance with the law and putting his interests ahead of his legal obligations. He does not pose a risk to the public, the car-buying industry, the OMVIC, the Tribunal, or potentially the court.

31Considering the foregoing, the Tribunal’s analysis of the evidence and its conclusion, I am not satisfied that it likely would have reached a different decision had it clearly expressed the standard of proof as being “reasonable grounds for belief.” Further, as explained below, the Tribunal specifically addressed the issues stated by the Divisional Court.

Did the Tribunal place improper reliance on a December 6, 2017 email?

32The appellant produced an email dated December 6, 2017 from his stepmother, Carole Mander, addressed to “who it may concern”, which read as follows:

I Carole Mander was asked to appear in court to plead not guilty for Gordon James Mander in Calgary Alberta. Due to circumstances at the time I was not able to appear for court on February 15/2015. I was asked to supply a letter explaining my circumstances at the time and I’m now drafting the letter of explanation for my action.

33The obvious problem with the email was that the failure to attend charge was in reference to a September 14, 2015 missed court appearance. The respondent, in the submissions on the reconsideration request, wrote that there is a “contradiction inherent in an email written prior to the events it attempts to explain….” The email in fact was written after the events it explains but references a date, February 15/2015, before the missed court appearance. According to the respondent, the Tribunal erred in both admitting the email into evidence and assigning it significant weight.

34The respondent further takes the position that the Tribunal committed an error of law in “misapprehending” the email. The respondent cites the decision in Shooter Sports Bar Inc. v. Alcohol and Gaming Commission, 2008 CanLII 25052 where the Divisional Court wrote: “[W]here a Tribunal completely misapprehends the evidence or completely fails to take relevant and important information into account, this constitutes an error of law.”

35The respondent submits that “the Tribunal was “disingenuous” in how it dealt with the email. At paragraph 73 of its decision the Tribunal wrote that “little or no importance attaches to the email.” At the next sentence the Tribunal wrote “The Crown withdrew the failing to appear charge for the simple reason that the charge resulted from the unfortunate fact that the Appellant’s family member did not appear in court on his behalf as he had expected.”

36I see nothing “disingenuous” in the Tribunal discounting the email while accepting the evidence of the appellant as to his stepmother failing to appear on his behalf. The Tribunal had the discretion to admit the email into evidence under section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The fact that the Tribunal believed the appellant’s story does not give rise to an error of law.

Did the Tribunal fail to give proper consideration to the Divisional Court’s direction?

37The respondent cites a number of extracts from the Divisional Court’s decision ordering the new hearing, submitting that the Tribunal ignored them in arriving at its decision. These extracts are as follows:

29. An individual’s continuing failure to comply with a court order or outstanding arrest warrant gives rise to serious concerns regarding his ability to carry in business in accordance with the law,

30. Mr. Mander’s failure to appear in court as promised and his failure to respond to the arrest warrant because he moved to Ontario to assist his spouse’s children are indeed evidence that he is a risk to put his personal interests ahead of his legal obligations.

31. There is an overriding public policy interest in ensuring that individuals who are charged with criminal or regulatory offences and are released on a promise to appear to attend court comply with that obligation.

38The respondent submitted that the Tribunal erred in law by ignoring the direction of the Divisional Court to give a high degree of scrutiny to the appellant’s three-year flight from the charges.

39The Divisional Court also wrote the following in considering the appropriate remedy:

38. Mr. Mander may well have complied with the warrant and addressed the Alberta charges by the time these reasons are released. In these circumstances, we think it could be unjust for us to set aside the order of the Tribunal and to direct the Registrar to carry out her proposal, which was based on the facts as they existed at December 1, 2016 (and continued unchanged when the Tribunal released its decision on June 8, 2017).

40At paragraph 39 of the Divisional Court decision, it directed a “trial de novo” so that the Tribunal “may consider any evidence that Mr. Mander has now complied with his legal obligations in Alberta.” The issue in the Divisional Court, to repeat what is stated above, was whether the Tribunal “…erred in concluding that Mr. Mander should be registered as a motor vehicle salesperson in Ontario while he remains subject to the outstanding arrest warrant in Alberta.” In my view, the Tribunal did as the Divisional Court directed. It accepted the appellant’s evidence as to the reason for his failure to attend and took into account the disposition of all of the charges.

CONCLUSION

41Pursuant to rule 18.4(b) of the Tribunal’s rules, I confirm the order of the Tribunal dated December 24, 2018 whereby it directed the Registrar not to carry out the Proposal to refuse the application for registration as a salesperson.