Citation: Anhga Msc Inc. and Totonchian v. Registrar, Motor Vehicle Dealers Act, 2002, 2020 ONLAT 12507MVDA
Appeal from a Notice of Proposal under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B, to Revoke Registration and Refuse Registration
Between:
Anhga Msc Inc. o/a Mazda of Stoney Creek and Hossein Totonchian
Appellant
and
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
AMENDED CONSENT ORDER
Order Made by: John Kromkamp, Member
Date of Order: December 22, 2020
1. Whereas the Appellants requested a hearing before the Licence Appeal Tribunal (the “Tribunal”) to appeal the Registrar's Proposal to Revoke Registrations issued on December 4, 2019 (the "Proposal");
2. The parties have advised the Tribunal that they have resolved the issues in dispute and have requested the Tribunal issue an order on consent disposing of this proceeding. I am satisfied that the resolution reached by the parties is fair and appropriate and addresses the concerns raised by the respondent in their Proposal.
3. On consent of the parties, and pursuant to Section 4.1 of the Statutory Powers Procedure Act, and subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (hereinafter the “Act”) the parties to the proceeding, Anhga Msc Inc. o/a Mazda of Stoney Creek (“Mazda of Stoney Creek”), Hossein Totonchian (“Totonchian”) and the Registrar, Motor Vehicle Dealers Act (the “Registrar”) waive the requirement of a hearing and hereby consent to:
a) an order of the Tribunal directing the Registrar to carry out the Registrar’s proposal to revoke Mazda of Stoney Creek's registration as a dealer under the Act; and
b) an order of the Tribunal incorporating by reference the following terms and conditions to the registration of Totonchian as a motor vehicle salesperson under the Act (subparagraphs (a) and (b) shall be collectively referred to as the "Consent Order"):
ORDER
4. Pursuant to s 6(2) of the Motor Vehicle Dealers Act, 2002 (MVDA),
a) the Tribunal directs the Registrar to carry out the Registrar’s proposal to revoke Mazda of Stoney Creek's registration as a dealer under the Act; and
b) the Tribunal orders that the following terms and conditions are incorporated in the registration of Totonchian as a motor vehicle salesperson under the Act (subparagraphs (a) and (b) shall be collectively referred to as the "Consent Order"):
TERMS AND CONDITIONS
5. Totonchian's registration as a salesperson shall be subject to the following terms and conditions for a period of two years ("Term Period"). The two-year period shall commence on the date the Consent Order is made by the Tribunal.
6. Totonchian shall comply with all requirements of the MVDA, and Ontario Regulations 333/08, the Code of Ethics in Ontario Regulation 332/08, the Ontario Motor Vehicle Industry Council (“OMVIC”) and Standards of Business Practice, 2010, as may be amended from time to time. Totonchian further agrees to read all OMVIC correspondence, OMVIC bulletins and OMVIC Guidelines as released.
7. Totonchian shall provide the Registrar with notice in writing, within five days, of any substantive changes to his registration or information provided in obtaining his registration, pursuant to section 31 of Ontario Regulation 333/08.
8. Totonchian acknowledges that “trade” refers to buying, selling, leasing, advertising or exchanging an interest in a motor vehicle or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle as defined in the MVDA and pursuant to section 36 through to and including section 51 of Ontario Regulation 333/08; and is not limited to the signing of contracts.
9. Totonchian shall ensure that the registration will not be used to trade in motor vehicles where Totonchian knows, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.
10. Totonchian shall not apply to be a motor vehicle dealer during the Term Period.
11. Totonchian shall not to be partner, shareholder, officer, director, or have direct or indirect control of a dealer for the Term Period.
12. Totonchian shall not be a person in charge or be involved in the financial management of a dealer for the Term Period.
13. Totonchian shall not be the final signatory on any contracts in relation to a trade of a motor vehicle on behalf of the dealer for the Term Period.
14. Totonchian shall not be a manager of a dealer for a period of one year. The one-year period shall commence on the date the Consent Order is made by the Tribunal.
15. Any sponsoring dealer that Totonchian applies to be registered to must be approved by the Registrar’s office in advance of registration being granted and such approval shall not be unreasonably withheld or delayed.
16. Totonchian shall notify his sponsoring dealer(s), in writing, of any findings of guilt, convictions and/or pending charges and outstanding judgements/orders within 5-days of the event. Totonchian shall provide the Registrar with a copy of the notification acknowledged by the signature of the sponsoring Dealer.
17. Totonchian shall provide the Registrar with full and complete disclosure in all future correspondence and on all future applications, regardless of whether or not disclosure has been made previously to the Registrar.
DISCLOSURE
18. Totonchian shall ensure that all trades in motor vehicles are completed in accordance with section 30 of the MVDA and pursuant to section 39, 40, 41, 42 and 43 of Ontario Regulation 333/08 and section 4 of Ontario Regulation 332/08, where applicable.
19. Totonchian shall disclose all material facts about motor vehicles for purchase or lease to their customers. Totonchian further agrees to disclose all material facts on the Bill of Sale, in writing. Totonchian shall ensure compliance with the disclosure obligation notwithstanding whether or not the vehicle has been branded through MTO. For greater certainty, a material fact is one that if disclosed could affect the decision of a reasonable person to purchase or lease the vehicle or affect the purchase price. In the case of damaged vehicles, Totonchian further agrees to disclose as much detail as possible regarding the nature and severity of the damage. Totonchian undertakes to conduct reasonable research into the history of all motor vehicles under trade to ensure all material facts are disclosed.
FINANCIAL RESPONSIBILITY
20. Totonchian shall take reasonable steps to ensure any motor vehicle he sells or leases to a consumer, is free of any encumbrances, such as outstanding loan and/or lien.
ACKNOWLEDGEMENT AND UNDERTAKING
21. The Registrar is relying on the accuracy and completeness of all documents, statements or information provided by Totonchian in support of his registration under the MVDA.
22. The documents, information or statements provided to the Registrar are true to the best of Totonchian’s knowledge, and belief, and that full answer to all questions, inquires and requests made by the Registrar in connection with his registration has been given.
23. The Registrar may take further administrative action, including a proposal to suspend or revoke registration, arising from any matters that have occurred or may occurred related to honesty and integrity, financial responsibility or compliance with these terms and conditions.
24. Independent legal advice has been obtained or Totonchian has had the opportunity to obtain independent legal advice respecting consent to Terms and Conditions contained in this document.
LICENCE APPEAL TRIBUNAL
__________________________
John Kromkamp, Member
Released: December 22, 2020