Tribunal File Number: 12167/GAR
Appeal from a Notice of Proposal of the Director of Vehicle Inspection Standards, under section 93 of the Highway Traffic Act, R.S.O. 1990, c.8, to Revoke a Licence as a Motor Vehicle Inspection Mechanic.
Between:
Umair Khan
Appellant
and
Director of Vehicle Inspection Standards
Respondent
DECISION AND ORDER
Adjudicator: Jennifer Friedland
Appearances:
For the Appellant: Preetmohinder Wadhwa, counsel
For the Respondent: Ryan DeFaria, counsel
Dates and place of Hearing: Toronto, ON, October 17 & December 11, 2019
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This an appeal of a Notice of Proposal dated May 31, 2019 issued by the Director of Vehicle Inspection Standards to revoke the appellant’s registration as a Motor Vehicle Inspection Station Mechanic under the Highway Traffic Act, R.S.O. 1990, c.8 (the Act).
2The proposal was issued under s. 93 of the Act based on allegations that the appellant, Mr. Khan, had improperly issued eight safety standards certificates; including by not properly inspecting the vehicles in the motor vehicle inspection station (MVIS), failing to complete the required reports, and making a false statement in one of the certificates.
3Prior to the proposal being issued, the appellant was charged and pleaded guilty to a number of provincial offences under the Act arising from the same allegations. The specifics of the pleas are not clear as shall be outlined below.
B. ISSUE
4The issue in this case is whether the Director should be directed to carry out its proposal to revoke the appellant’s registration as a motor vehicle inspection mechanic.
C. RESULT
I find that the facts underlying the Director’s allegations are proven on a balance of probabilities, though primarily out of the appellant’s own mouth and on documents put in by his own counsel relating to the appellant’s guilty pleas. In terms of the result that shall flow from these findings, for the reasons given below, I am substituting my own opinion for that of the Director under section 95 (4) of the Act and I am by order directing the Director to refrain from carrying out the proposal to revoke Mr. Khan’s registration.
D. PRELIMINARY ISSUES
5Counsel for the appellant raised a number of preliminary issues at the start of the hearing, all of which were decided with oral reasons at the time. These issues can be summarized as follows:
Objection to the admission of the respondent’s book of documents
6The appellant, through his counsel, Mr. Wadhwa, objected to the admission of the respondent’s book of documents on the basis that a copy of this brief was supposed to have been delivered to counsel by September 6, 2019 by order of the Tribunal following a case conference. His client already had a copy of this brief. On September 16, 2019, 10 days after the timeline set at the case conference, counsel for the Director, Mr. Moore (who was not counsel on this appeal), wrote to Mr. Wadhwa, apologized for the delay, and confirmed that the Director would be relying on the document brief already served on counsel’s client on July 10, 2019.
7Mr. Wadhwa did not follow up with a request for a copy of the brief. Instead he wrote to counsel to advise that “failure to follow the deadlines is fatal to the case”, that the documents earlier submitted to his client “are irrelevant” since the order required the documents to be submitted to counsel, and that the admissibility of the documents would be “vehemently challenged.”
8Counsel for the Director sought the Tribunal’s consent to have the book of documents admitted pursuant to Rule 9.4 of the Tribunal’s Rules.1 This provision provides that if a party fails to comply with any Rules, directions or orders with respect to disclosure, the party may not rely on the document without the consent of the Tribunal.
9I consented to the admission of the documents on the basis that while the respondent had not fully complied with the case conference order, Mr. Wadhwa nonetheless had more than 30 days before the hearing to request the brief from the Director and/or his client and could easily have prepared for the hearing without prejudice by the delay. That counsel chose not to request the document brief from either source, instead showing up for the hearing unprepared and on the assumption that the evidence would be excluded, is not, in my view, a basis for me to withhold my consent.
10After ruling that I would consent to the admission of the respondent’s book of documents I allowed time for the appellant and counsel to review the brief and also indicated that I would consider an adjournment if requested. Ultimately it was agreed that the respondent’s witness would be called in chief and then the matter would go over for cross-examination. This would allow the appellant and his counsel ample time to review the documents in a context where there could be no doubt as to their purpose, the respondent’s counsel having already gone through each of them with its witness.
Objection to the respondent’s witness
11The second objection raised by the appellant was against the calling of the Director’s only witness, Mr. Cook, an inspector for the Ministry of Transportation (MTO). Mr. Wadhwa objected to this witness being called on the basis that the witness was identified in correspondence from the Director as “a Minister of Transportation inspector and mechanic.” Mr. Wadhwa submitted that because Mr. Cook was a mechanic, he was therefore an expert witness who was being called without the Director having complied with the Tribunal’s disclosure and notification rules concerning expert witnesses. The Director’s position was that Inspector Cook was not being called as an expert witness, but rather to testify to the notes, documents and observations made during the course of his investigation.
12I allowed the witness to be called on the basis that he was not being called as an expert witness. I cautioned the respondent that the inspector’s evidence should not stray into opinion evidence based on his expertise as a mechanic.
Request to dismiss the appeal on the basis of double jeopardy and res judicata
13The final item raised by counsel for the appellant was a request that I dismiss the appeal without a hearing on the basis of double jeopardy, res judicata and that to proceed with the hearing would infringe the appellant’s right under section 11(h) of the Canadian Charter of Rights and Freedoms. This section provides that a person charged with an offence has the right if finally acquitted of the offence, not to be tried for it again, and if finally found guilty and punished for the offence, not to be tried or punished for it again.
14The basis for the appellant’s request was that the appellant had already pleaded guilty and had been convicted in provincial court of various offences under the motor vehicle safety standards provisions of the Act. According to the appellant’s counsel, the facts underlying the laying of those charges were the same as those relied on by the Director in his notice of proposal to revoke the appellant’s registration. Although counsel had provided written submissions in support of this argument, as a tab in his client’s Record and Exhibit Book, no formal notice of motion was served, nor was a notice of constitutional question served, including on the Attorney-General, as required under Rule 11 of the Tribunal’s Rules.
15I dismissed the motion summarily on the basis that the doctrines of double jeopardy and res judicata do not apply as between criminal or quasi-criminal proceedings and regulatory proceedings, nor does section 11 (h) of the Charter.
16Though I did not advert to the following cases at the time, I cite here the comments of Justice Wilson of the Supreme Court of Canada in R. v. Wigglesworth2, in which she wrote, at para 23:
There is a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness or to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of “offence” proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of “offence” proceedings to which s. 11 is applicable.
17In Chonook Park v. Ontario (Alcohol & Gaming Commission)3, the Divisional Court dealt with a similar issue. In that case, a licensee was acquitted in the Provincial Court and raised the issue of res judicata and double jeopardy before the Licensing Tribunal. Justice Campbell, speaking on behalf of the Court dismissed the motion concluding at paragraphs 3-4 as follows:
As for res judicata, double jeopardy, and abuse of process, a prosecution is different from a regulatory hearing with different parties and different potential remedies. The quasi criminal Provincial court acquittal does not affect the regulatory jurisdiction of the Board.
As for the Charter, no notice has been given to the Attorney General and in any event section 11(h) does not apply to regulatory proceedings like these.
18Having addressed the appellant’s preliminary objections as outlined above, the hearing proceeded.
E. BACKGROUND & STATUTORY CONTEXT
19Sections 88 to 100 of the Act govern the issuing of safety standard certificates. A safety standard certificate is required in a number of circumstances, including when a used vehicle is transferred to a new owner, other than a spouse. A safety standards certificate ensures that the vehicle meets minimum safety standards and is important to ensure road safety.
20The appellant, Mr. Khan, is a motor vehicle inspection mechanic registered with D.M. Fraser Family Sales Ltd, a licenced motor vehicle inspection station, operating as a Canadian Tire in Ottawa.4 Mr. Khan has been registered as a mechanic with this licensee since September 7, 2017.
21As a motor vehicle inspection mechanic, Mr. Khan is the person who inspects the vehicle and certifies by means of a safety standards certificate that the motor vehicle complies with the equipment and performance standards prescribed by the Act and regulations.
The requirements before a safety certificate can be issued
22Section 90(3) of the Act states that a safety standards certificate cannot be issued unless:
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
The safety standards certificate …
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.
Grounds to revoke a registration
23Under section 93 of the Act, the Director may revoke the registration of a motor vehicle inspection mechanic where, among other things,
(a) The registrant has made a false statement in a safety standard certificate,
(b) An 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.
24Where the Director proposes to revoke a registration, as in this case, the registrant has the right to request a hearing.
Power of the Tribunal where hearing
25Section 95(4) of the Act sets out the powers of the Tribunal following a hearing. Under this provision, the Tribunal 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 the regulation, and for such purposes the Tribunal may substitute its opinion for that of the Director.
Offences
26In addition to facing potential revocation of his or her registration, a registrant who contravenes the safety standard provisions of the Act can also be convicted of an offence and liable to a fine. The penalties are set out in section 99 of the Act. For most contraventions, the penalty upon conviction is a fine of not less than $200 and not more than $20,000. However, particular offences, including breaches of section 90(3) or making a false statement in a safety certificate, carry a higher minimum penalty of $400 upon conviction.
27As shall be further discussed below, 17 charges were laid under the Provincial Offences Act against Mr. Khan in relation to the alleged facts of this case. He pleaded guilty to ten of those for fines amounting to $4,650 in total.
F. FACTS
The allegations
28The Director’s case centres on eight safety standards certificates issued under the appellant’s signature.
29The Director alleges that:
Each of the eight certificates were provided in relation to vehicles that were not properly inspected at the licenced motor vehicle inspection station contrary to section 90(3)(a) of the Act.
Mr. Khan failed to complete inspection reports in relation to each of the eight certificates as required under section 9.1 of Ontario Regulation 601; and
Mr. Khan made a false statement in relation to one of the certificates.
The impugned certificates
30It is unnecessary to identify each certificate by number, make of car, or date of the inspection. I had certified copies of each of these before me in evidence and I accept that the certificates were issued on various dates between October and December 2018, that the eight certificates show Mr. Khan to have been the inspecting mechanic; and that the licensee was the Canadian Tire owned and operated by D & M Fraser Family Sales Ltd, where Mr. Khan was registered and employed. Each certificate was signed by Mr. Khan as the inspecting mechanic and he also confirmed in cross-examination that he was the person who signed as licensee as well, though using a different signature than his own.
31With respect to the particular vehicles that received the safety standards certificates, it is only necessary to identify two of these in particular. One is the vehicle that started the investigation, which I will call the Parry Sound vehicle. The other is a vehicle that was transferred from Mr. Khan to a new owner on the same day as its purported safety inspection.
The initial investigation and the allegation relating to making a false statement
32The investigation into the impugned safety certificates began with a complaint by a consumer in Parry Sound about a vehicle that purportedly had an e-brake that was not working and a “clunky sound mid car.” The complaint was made to a safety inspector in Parry Sound who inspected the car and prepared an investigative report, together with photographs identified in the report as being of the vehicle in question. According to the report, this investigation was conducted 28 days after the date the safety standards certificate was issued and after the vehicle had been driven 998 kms according to the odometer.
33The Director asks me to rely on this report as proof that the appellant made a false statement on the safety standards certificate relating to this vehicle. In particular, I was invited to infer from this report that this vehicle did not in fact meet the prescribed safety standards on the date Mr. Khan issued its certificate.
34I have some difficulty in relying on this evidence as proof that the car did not meet the prescribed standards on the day it was said to have been inspected by the appellant for a number of reasons. First, the inspector who inspected the Parry Sound vehicle was not called as a witness and could not be cross-examined on his findings. Second, the only witness who was called by the Director (an inspector for the MTO with a background in mechanics) was specifically not qualified as an expert, and although, at the request of the appellant’s counsel5, some leeway was given to him to opine on the alleged defects purportedly identified in the report and shown in the photographs, I do not find that this evidence amounts to proof on a balance of probabilities that the car did not meet the minimum safety standards on the date of the inspection 28 days and almost 1000 kms earlier.
35I do, however, have evidence that the appellant later pleaded guilty to the charge of making a false statement in a safety standards certificate.
36The statement that is contained in a safety standards certificate requires the signature of both the inspecting mechanic and the licensee, and states the following:
“We hereby certify that the above described motor vehicle has been inspected in accordance with the provisions of Sections 88 to 100 of the Highway Traffic Act and Regulations issued thereunder, and that the items inspected met the prescribed standards on the Date of Inspection.”
37Mr. Khan had signing authority to sign on behalf of the licensee and confirmed that he did sign as both entities on this and the other certificates in question, albeit using a different signature than his own for the licensee.
38Given Mr. Khan’s plea, I accept that he did provide a false statement on this certificate. However, as shall be further outlined below, there was no evidence before me as to the facts (if any) that Mr. Khan pleaded to; nor are the particulars of the offence set out in the charging document or even in the Director’s notice of proposal.
39Nonetheless, the plea is evidence that I must accept that he made a false statement and given the entirety of the evidence before me, I am satisfied that the false statement relates, at the very least, to failing to conduct the inspection in accordance with sections 88 to 100 of the Act. It is unnecessary for me to also accept that the car did not meet the minimum standards on the day it was inspected by Mr. Khan. A false statement in either regard poses a concern for road safety and is a basis for the Director to propose to revoke a registration pursuant to section 93(a) of the Act.
The other allegations: not properly inspected at the MVIS & No Reports
40The investigation in Parry Sound led to an investigation of the motor vehicle inspection station that issued the safety certificate for that vehicle. This was in a different jurisdiction and was therefore conducted by a different inspector, Inspector Graeme Cook. Inspector Cook was the only witness called on behalf of the Director in this case.6
41Inspector Cook testified to his conversations with David Fraser, Mr. Khan’s employer and the operator of the licenced MVIS that issued the Parry Sound certificate. Inspector Cook described how his questions about that certificate purportedly led Mr. Fraser to search his records and discover seven other certificates, all signed by Mr. Khan, and all raising similar concerns. In particular, according to an email that Mr. Fraser sent to Inspector Cook during the course of the investigation:
there was no work order opened for any of the certificates;
there was no Canadian Tire Ontario Safety Inspection Form completed;
the signature of the licensee on each of the eight certificates did not match any of the signatures on Mr. Fraser’s authorized signature registry;
no payment was received for any invoice for the inspections;
no work order number was recorded on the certificates; and there was no evidence that any of the eight vehicles had actually been in the shop.
According to Mr. Fraser, he apparently also checked his closed-circuit cameras to see if the vehicle had been inspected in the shop, but his cameras only went back 30 days and did not capture the dates the certificates were issued.
42Inspector Cook did not conduct any follow up investigation on the vehicles that were certified, nor did he contact any of the registered owners. He also did not speak to Mr. Khan in the course of his investigation other than on the first day of his investigation to confirm Mr. Khan’s signature on the Parry Sound certificate, and again, when he issued a summons for the alleged offences.
43It is evident that the whole of Inspector Cook’s case against Mr. Khan was based on information received from Mr. Fraser. However, Mr. Fraser was not called as a witness.
44I again have some concerns about relying on evidence that is purported to have come from a person whom the Director chose not to call as a witness at this hearing. Mr. Fraser could not be cross-examined on the details he claimed to have discovered regarding the impugned certificates. Moreover, as the licensee, Mr. Fraser was himself in some jeopardy during this investigation, given that the certificates were issued from his motor vehicle inspection station. Indeed, in one of his emails, Mr. Fraser informed the inspector that he would wait to hear whether Mr. Fraser’s own corporation was going to be charged with a provincial offence. In these circumstances, I do not attach much weight to the hearsay evidence of Mr. Fraser as set out in his emails to the Inspector during the course of the investigation.
45That being said, I nonetheless have evidence that Mr. Khan pleaded guilty to at least some of the alleged wrongdoing pertaining to these certificates. While the particulars and frailties of the evidence surrounding Mr. Khan’s guilty pleas will be outlined below, suffice to say at this juncture that even if I afford minimal weight to the hearsay evidence of Mr. Fraser, the appellant has nonetheless admitted to some form of wrongdoing.
46Inspector Cook acknowledged in cross-examination that it is the licensee’s responsibility to oversee its mechanics, but that he nonetheless declined to press any charges against the company. He stated that he felt that Mr. Fraser had systems in place that would have protected against any wrongdoing if they had been followed. He also testified that Mr. Fraser was now taking further precautions to hedge against any future wrongdoing, such as limiting access to the certificate books.
47Inspector Cook further acknowledged that he also did not cite the licensee for failing to have a current MVIS licence posted as required under the Act.
The appellant’s evidence7
48Mr. Khan explained the process that is followed at the MVIS with respect to the issuing of safety certificates but was vague in relation to whether that process was followed with respect to the certificates in question. With respect to those certificates, he acknowledged that he “made mistakes” and that he “should have double checked.” I agree with Mr. DeFaria’s submission that the appellant likely knew more than he was letting on with respect to the impugned certificates.
49Mr. Khan’s credibility was also undermined when he denied being familiar with any of the owners of the vehicles in respect of which the certificates were issued, and also denied having seen the vehicles themselves prior to the inspection. However, subsequent to these denials, Mr. DeFaria produced a certified copy of the registration for one of the vehicles which showed that Mr. Khan himself was the registered owner up until the day of the purported inspection.
50As stated above, Mr. Khan also acknowledged signing the impugned certificates as both the inspecting mechanic and the licensee. He explained that he used a signature that was distinct from his own, because he thought he was supposed to be signing as Canadian Tire. He claims this was one of his “mistakes” and that he now knows he is not supposed to sign in both places.
51Mr. Khan was cross-examined on some of the photos relating to the Parry Sound vehicle, and he denied recalling any rust or damage on the day of the inspection.
52With regards to his personal circumstances and the impact that losing his registration would have on his ability to earn a living, Mr. Khan testified that if he lost his registration, he would lose his job and he relied on this income to support his family, including a newborn baby. He acknowledged, in cross-examination, that he had previous work experience in security and as an unlicensed mechanic registered with the College of Trades. At the time of the hearing, Mr. Khan continued to be employed by Mr. Fraser at the MVIS in question.
The appellant’s guilty pleas
53Mr. Khan also testified about his guilty pleas, explaining that he pleaded guilty on his first appearance, without counsel, and without any appreciation that he might also then face revocation of his registration as a result. He stated that he would not have pleaded guilty if he had known of that prospect. He further stated that he has had to borrow money in order to be able to pay down the fines which amounted to over $4,000 in total and are difficult for him to meet.
54In terms of the facts underlying his convictions, this was not explored in examination in chief or cross-examination. In fact, the Director did not present any evidence at all related to the convictions. Thus, I had no certified copy of the convictions before me, nor any proof of the convictions other than what came from Mr. Khan’s own testimony and from documents provided by his counsel in support of his preliminary request to dismiss the appeal on the basis of double jeopardy. These are ten “Notices of Fine and Due Date” relating to ten offences.
55Each “Notice of Fine and Due Date” shows a conviction date of April 9, 2019, which was Mr. Khan’s first appearance according to the summons served on him by Inspector Cook. Each Notice also shows an offence date which lines up with offence dates on the summons. Correlating the date of the offence on each Notice to the date of the offences on the summons suggests that Mr. Khan was convicted and fined for:
one count of making a false statement contrary to Act section 99(2) (that would be in relation to the Parry Sound certificate);
eight counts of issuing a safety certificate to a vehicle that was not “properly inspected at licensed motor vehicle inspection station, contrary to the Highway Traffic Act, section 90(3)(a)” (one for each of the impugned certificates); and
one count of “failing to complete an inspection report as prescribed, contrary to Ontario Regulation 601 [sic] section 9.1. pursuant to Highway Traffic Act of Ontario, Section 100 (i).”
56However, this still does not illuminate the facts upon which Mr. Khan pleaded, if any. No transcript of the plea was put into evidence. And the Notices of Fine do little to clarify what he pleaded to. The section of the Act that he pleaded to is not referred to on the Notices. And other than one offence described as “FALSE STATEMENT IN SSC” which is plain enough; eight of the offences are described as “ISSUE/AFFIX SSC NO INSP/COMPLY” which is at best, ambiguous; and the last is “FAIL TO REP. TERMINATION MECH” which, frankly, verges on meaningless in the context of this case. In fact, it seems to refer to what would have been a conviction under s. 9 (not 9.1) of Regulation 611 (not 601), which requires a licensee to report the termination of a mechanic.
57In short, the evidence surrounding Mr. Khan’s guilty pleas and convictions is poor.
G. ANALYSIS
58The Director’s position is that the appellant either did not conduct the inspections at the licenced MVIS, or he did not conduct the inspections at all.
59Mr. Khan testified that he did conduct the inspections at the MVIS but acknowledged “mistakes” in following the procedures in place at the time. However, given Mr. Khan’s admission that he also signed the certificate in both places and his denial that he was familiar with any of the cars or owners when one of the vehicles was registered in his name just prior to the issuance of that certificate, I find his testimony suspect at best.
60Taking all aspects of the evidence into consideration, I find the following:
61There is insufficient evidence for me to conclude that any of the vehicles that were issued a certificate were not, in fact inspected by Mr. Khan, nor that they did not meet the minimum prescribed standards at that time. It may be that they did not. However, speculation is not proof on a balance of probabilities.
62I accept, however, on a balance of probabilities that Mr. Khan did not follow the protocol in relation to the impugned certificates. This is based primarily on his admission that he signed both as mechanic and as licensee but using two different signatures and based on his guilty pleas; which, even if the facts on which he pled are not clear, are nonetheless an admission of guilt.
63My conclusion that Mr. Khan did not follow the prescribed procedures, leads to the further conclusion that his inspections (assuming they were conducted at all) were not in accordance with sections 88-100 of the Act. This means that each of the eight certificates signed by him also contained a false statement.
64On the above basis, I find on a balance of probabilities that the facts underlying the Director’s proposal have been made out; namely under section 93 (a) of the Act, that Mr. Khan made a false statement in a safety standards certificate; and under section 93(c) that he did not comply with the Act or the regulations with respect to the impugned certificates.
Whether the Director should be directed to carry out the proposal
65Pursuant to the powers granted to the Tribunal after a hearing under section 95(4) of the Act, my conclusion that the facts underlying the Director’s proposal have been made out, does not oblige me to direct that the proposal be carried out. I can also direct the Director to refrain from carrying out the proposal “and to take the action that the Tribunal considers the Director ought to take in accordance with the Act and the regulation.” For such purposes, I am entitled to substitute my own opinion for that of the Director.
66In this case, the Director’s own power to revoke a registration on the grounds that have been made out here, is permissive, it is not mandatory. Section 93 states that the Director may revoke based on the wrongdoing proven here. This discretion is where I may substitute my own opinion consistent with the Act. If this were a mandatory result (the Director shall revoke), I would be constrained by the Act to direct that the proposal be carried out.
67While deference is not owed to the Director, in my view the Tribunal ought not lightly interfere with a Director’s decision.
68In considering the Act and its regulations, I am mindful that the Act is public safety legislation. The strict protocol mandated by the legislation when it comes to issuing safety standard certificates ensures the quality and reliability of the motor vehicle inspection and protects against unsafe vehicles being on the road. A mechanic who does not follow this protocol poses a risk to road safety.
69I have decided that I am going to order that the Director refrain from carrying out its proposal to revoke Mr. Khan’s registration for the following reasons which can be broken down into two broad categories: One, the fact that Mr. Khan has continued to work at the licenced MVIS without issue; and two, the fact of his guilty pleas and punishment in the provincial offences context. Together, these factors persuade me that Mr. Khan is not at future risk of non-compliance and can maintain his registration at Fraser’s without putting the public at risk.
Continuing Employment at MVIS
70Mr. Khan’s registration as a motor vehicle inspection mechanic, like all registrations, is linked to a specific motor vehicle inspection station, in this case Fraser & Family Sales Ltd operating as a Canadian Tire. It is not disputed that Mr. Khan continues to be employed at this MVIS.
71No action was taken against Fraser’s by the Director, despite that corporation being the licensee responsible for overseeing Mr. Khan and responsible for the issuing of safety certificates from that MVIS. When questioned by Mr. Khan’s counsel about why he did not further investigate Fraser’s, Inspector Cook testified that he was satisfied Mr. Fraser had procedures in place to ensure that similar wrongdoing would not recur.
72Since Fraser’s is not deemed a risk by the regulator, and Khan’s employment at Fraser’s has continued, I am satisfied that Mr. Khan is now compliant with the MVIS protocols and with the Act, and that he is not at risk of reoffending with respect to the issuing of safety certificates.
Guilty Pleas & Convictions
73Moreover, I place significant weight on the fact of Mr. Khan’s guilty pleas. A guilty plea indicates remorse and that Mr. Khan took responsibility for his wrongdoing Furthermore, a core principle of sentencing in criminal and quasi-criminal proceedings is specific deterrence. In this case, I heard evidence that the fines Mr. Khan received have been debilitating for him and his family and he has had to borrow to pay them down. He further testified that he will never make such mistakes in the future; and in that regard, I found Mr. Khan credible and convincing. I have no reason to suspect that Mr. Khan has not, as a result of his prosecution under the Act, been specifically deterred from repeating any wrongdoing with respect to the issuing of safety standard certificates in the future.
H. Conclusion
74I have found on a balance of probabilities that the Director’s basis for proposing to revoke the appellant’s registration has been made out. This conclusion is based primarily on Mr. Khan’s own guilty pleas which shows that he did not follow the provisions of the Act regarding the issuing of safety certificates for eight vehicles between October and December 2018 and that he made a false statement in those certificates. Although the specifics are not clear, and not all of the evidence is reliable, I have no basis to go behind Mr. Khan’s guilty pleas which support the Director’s allegations.
Nonetheless, based on Mr. Khan’s continuing employment at Fraser’s where he is registered; the Director’s satisfaction that as the licensee, this MVIS has procedures in place to hedge against future wrongdoing; and considering Mr. Khan’s early guilty pleas and fines, which show that he has taken responsibility for his actions, and would operate as a specific deterrence against future misconduct, I find that it is unnecessary to also now revoke his registration to protect the public.
ORDER
75Pursuant to the Tribunal’s powers under section 95(4) of the Act, I order the Director to refrain from carrying out his proposal to revoke the appellant’s registration as a motor vehicle mechanic with D & M Fraser Family Sales Ltd.
LICENCE APPEAL TRIBUNAL
Jennifer Friedland,
Adjudicator
Released: March 11, 2020
Footnotes
- The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017; amended February 7, 2019)
- 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541
- [2002] O.J. No 4017 (Div. Ct.)
- Hereinafter “Fraser’s” or “the licensee”
- Despite his earlier objection to Mr. Cook being tendered as an expert, it was appellant’s counsel who first strayed into asking questions about alleged defects in the Parry Sound vehicle.
- At various intervals throughout Inspector Cook’s testimony, counsel for the appellant objected to the evidence on the basis that Inspector Cook was giving “expert” evidence as a mechanic and I had earlier ruled that he could not give expert testimony. However, the evidence to which Mr. Wadhwa objected was not expert evidence in my opinion. For example, Mr. Wadhwa objected to Insp. Cook testifying that the MVIS number identified on the Parry Sound inspection report indicated that the station was in Ottawa. Mr. Wadhwa’s submission was that only an expert would know how to read that station number and know that it referred to an Ottawa location. Mr. Wadhwa similarly objected to Inspector Cook testifying to the structure of the MVIS program submitting that such knowledge would only be within the knowledge of an expert. I dismissed these objections, and others of this variety, each time they were made on the basis that the Inspector was entitled to give evidence relating to facts within his specialized knowledge as an inspector without it treading into expert opinion evidence. After ruling in this fashion a handful of times, Mr. Wadhwa asked how he might have me recused on the basis that I was clearly not prepared to apply the law, based on these and my earlier preliminary rulings. I declined to assist Mr. Wadhwa in that regard.
- It is worth noting how Mr. Khan came to testify in these proceedings, as it was not as per the usual course of events at a hearing. At the close of the Director’s case, Mr. Wadhwa indicated that his client would not testify. At this point, I alerted counsel to the fact that without his client’s testimony I would be left, at a minimum, with proof of his guilty pleas put in by Mr. Khan’s own counsel, which would prove the facts underlying the Director’s proposal, yet without Mr. Khan having the opportunity to explain the wrongdoing. Mr. Wadhwa maintained that his client would not testify but then changed that decision after the Director’s closing submissions and asked to call his client. This was a most anomalous request and counsel for the Director opposed it. Ultimately, I allowed Mr. Wadhwa to call his client. I reminded counsel and his client that Mr. Khan would be subject to cross-examination and ruled that the Director would have the right to make a further closing submission after his testimony. As the Director noted in his subsequent closing, the appellant was not helped by his testimony.