Ali Abbas v. Registrar, Motor Vehicle Dealers Act, 2002, 2020 CanLII 72474

Date: 2020-08-26

Appeal from a Notice of Proposal of the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, c.30, Sch. B - to Refuse Registration

Between:

Ali Abbas

Appellant

-and-

Registrar, Motor Vehicle Dealers Act, 2002

Respondent

RECONSIDERATION DECISION

Adjudicator: Stephen Scharbach, Member

Date: August 26, 2020

Written Submissions by:

For the Appellant: Justin M. Jakubiak, Counsel

For the Registrar: Diana Mojica, Counsel

A. Introduction

1Mr. Ali Abbas (“appellant”) asks me to reconsider my decision released on April 21, 2020. That decision was made on the appellant’s appeal from a proposal issued by the Registrar, under the Motor Vehicle Dealers Act, 2002, (“Act”) to refuse to grant the appellant registration as a motor vehicle salesperson.

2My decision directed the Registrar to register the appellant as a salesperson but with several conditions imposed for a two-year period.

3The appellant requests that I reconsider one of those conditions which requires that the appellant only be employed as a salesperson at a dealership that has been approved by the Registrar and which effectively prohibits the appellant from being employed as a salesperson at Grandeur Motors, a family owned dealership operated by the appellant’s father.

4For the reasons set out below, the appellant’s request for reconsideration is dismissed.

B. Reason for Reconsideration Request

5The appellant states that in response to the current pandemic, the Government of Ontario ordered the closure of non-essential businesses as of April 4, 2020, including motor vehicle dealerships.¹

6According to the appellant, the effect of the closure has been economically devasting to dealerships and present market conditions make it difficult for the appellant to find employment as a salesperson at another dealership. The appellant states that true economic recovery will not return until a vaccine is discovered which experts say will take 18-22 months. In the meantime, the current economic climate makes it unlikely or impossible for the appellant to comply with the condition.

7The appellant states that if he was permitted to work at Grandeur the risk to the public would be minimal given my factual findings concerning the appellant’s past conduct.

8The Tribunal’s ability to reconsider its own decisions derives from Rule 18 of the Tribunal’s Rules of Practice and Procedure, October 2, 2017 (“Rules”) which sets out the criteria for granting a reconsideration request.

9The appellant relies of Rule 18.2(d) which states that the Tribunal may reconsider a previous decision where, “There is new evidence that could not have reasonably been obtained earlier and would have affected the result”.

10According to the appellant, at the time of the hearing, the devastating economic impact of the pandemic on the motor vehicle sales industry was unknown and constitutes new evidence which justifies reconsideration of the condition.

C. Analysis

11According to the Tribunal’s Rules, the Tribunal’s ability to reconsider a decision is confined to four specified circumstances. Rule 18.2 states:

The Executive Chair or his or her delegate shall not make an order [to vary, cancel, or rehear all or part of a hearing] unless satisfied that 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…

(c) The Tribunal heard false or misleading evidence from a party or a witness…

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

(emphasis added)

12The Rule is intended to provide a mechanism to correct clear deficiencies in jurisdiction, law or fact, integrity of the evidence, or significant new evidence that could not reasonably have been obtained at the time of the hearing.

13However, by prohibiting reconsideration in all other circumstances, the Rule also attempts to promote finality in the decision-making process. It clearly does not allow for reconsideration as a result of circumstances changing after the hearing has taken place. Such a discretion would mean that Tribunal decisions would always be subject to revision depending on changing future circumstances and would conflict with the parties’ and the public’s interest in finality.

14The issue of whether reconsideration is available under Rule 18.2(d) when circumstances change after the hearing was considered by the Tribunal in 11283 v. Registrar of Motor Vehicles ². In that case the Tribunal’s Associate Chair stated:

This ground for reconsideration is intended to address instances where evidence that was in existence at the time of the decision could not reasonably have been submitted to the Tribunal. That is what “new evidence” means in this context. It does not envision that later changes in circumstances following a decision provide grounds for reconsideration.³

While it appears that Great Lakes has taken further steps toward improving safety following the Tribunal’s decision, the reconsideration process is not an opportunity to argue that circumstances have changed since the time of the decision.⁴

15I agree with that analysis. The Rule allows for reconsideration based on new evidence that could not reasonably have been obtained earlier. However, both the Rule and the principle of finality preclude but reconsideration the basis of circumstances that change after the hearing.

16I find the impact of the pandemic on the appellant’s ability to find a position as a salesperson is not “new evidence” within the context of Rule 18.2(d). It is rather a change in circumstances after the hearing. As such it does not fall within the limited criteria in which a reconsideration is permitted.

D. Order

17The appellant’s request for reconsideration is dismissed.

Footnotes

1. 1Dealerships were permitted to open their physical premises to the public as of May 19, 2020.
2. 22018 CanLII 127590 (ON LAT)
3. 3Supra at paragraph 6
4. 4Supra at paragraph 10