Licence Appeal Tribunal
Tribunal File Number: 12705/MVDA
Appeal from a Notice of Proposal under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B. to Refuse a Registration.
ORDER
Adjudicator: Jennifer Friedland
Appearances:
For the Appellant: Sai Lu, Self-Represented
For the Respondent: Husein Panju, counsel
1This is an appeal from a Notice of Proposal to refuse the registration of the appellant as a salesperson under the Motor Vehicle Dealers Act, 2002 S.O. 2002, c. 30, Sch. (the Act).
2The hearing commenced by video on Monday, October 5, 2020 over the objection of the appellant who had sought an adjournment. His motion for the adjournment was heard orally at the start of the hearing.
3The appellant requested an adjournment based on not having had sufficient time to study the materials that were provided by the respondent in hard copy on or about September 11, 2020. Additional reasons for wanting an adjournment had to do with the appellant’s need to work during the week of the hearing. The appellant ran a roofing company. He had a crew working for him but claimed he needed to be on site during the day and also on the road looking for new contracts. The appellant had dialed into the video hearing by phone from his truck.
4The respondent objected to the adjournment primarily on the basis that the appellant had had sufficient time to have reviewed the documents. According to the respondent, the appellant had initially been sent an electronic copy of the materials as early as May 2020. He was later sent the documents a second time electronically (although in a rearranged order) in June 2020. Finally, he received the hard copy in or around September 11, 2020.
5The respondent further took issue with the appellant’s claim to need to work during the week of the hearing, as that reason was not mentioned in the appellant’s initial submissions before me. I noted that it was raised with the CMO by email when the appellant first started making inquiries about the adjournment. However, the respondent had not been copied on those emails.
6Finally, the respondent argued that it would be prejudiced if the hearing did not proceed as ordered, as it had summoned a number of civilian witnesses who were ready to give their evidence on the first few days of the hearing. The respondent worried that its witnesses’ memories would not be as fresh following an adjournment.
7After hearing the submissions of the parties, and for reasons given orally at the time, I ordered that the adjournment would be granted in part – after the respondent had called its case. While I found no reason to disbelieve the appellant’s claim to need to work during the week, it was evident that he had some control over his attendance – as it was his business and he had a crew working for him. I stated that I would be flexible in terms of start and end times on the second day to enable the appellant to return to work in the afternoon, if needed.
8With respect to the appellant’s claim not to have reviewed the documents, he did acknowledge that he had at least received and looked at one volume that had been sent electronically. He had further had the hard copies available to him for at least three weeks prior to the hearing and clearly had the opportunity to have perused them. I note further that there were two case conferences in this matter and that the respondent’s materials were delivered in accordance with the timelines set out in that order. Ultimately, I concluded that the appellant’s right to a fair hearing would not be breached by commencing the hearing under these circumstances. To assist the appellant, I directed the respondent’s counsel to outline, in his opening, which documents the Registrar would be relying on and why.
9With respect to prejudice, I acknowledge a minor amount of prejudice to the respondent in having arranged and summoned his witnesses to attend at the scheduled start of this hearing. I note, however, that it is in my view the appellant who suffers the most prejudice from an adjournment, as this is a notice of proposal to refuse registration as a salesperson which means the appellant cannot work in this capacity unless and until his appeal is successful. He is the party who ought to be most interested in pressing forward with this appeal.
10In any event, on the above basis, I ordered the hearing to commence on October 5, 2020 but stated that I would allow some flexibility to the appellant to decide if he wished to end early on the following day in order to attend work (which we did, ending at 2pm on October 6, 2020). I further advised that once the respondent had closed its case, I would adjourn to new dates chosen for the appellant to put forward his case, which would allow the appellant to return to work for the remainder of the week.
11Thus, at the end of the day on October 7, 2020, I vacated the following two days that had been set for the continuation of the hearing, and granted the appellant an adjournment on the terms reflected in the Order below:
THE TRIBUNAL ORDERS:
12The hearing dates of October 8 and 9, 2020 have been vacated.
13The hearing shall continue by video on November 16 and 17, 2020 commencing at 9:30 a.m. This date is peremptory on the appellant – meaning that a further adjournment request will not be considered absent extraordinary circumstances.
14A link to the video hearing will be sent by the Tribunal.
15Any documents that the Appellant wishes to rely on at the hearing (that are not already in the respondent’s materials) must be sent to the respondent and the Tribunal by email on or before October 30, 2020.
16If the appellant intends to call any witnesses other than Osama Javed and Jason Narain, he must provide the names of the other witnesses to the respondent on or before October 30, 2020. He must also provide a brief description of what the additional witnesses will be testifying about.
17If the respondent intends to rely on any documents in reply to the appellant’s materials (that are not already in its materials), a copy must be sent to the appellant and the Tribunal on or before November 6, 2020.
LICENCE APPEAL TRIBUNAL
_______________________
Jennifer Friedland
Member
Released: October 15, 2020