Motion for an Order to Extend the Time to File an Appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. c. 30 Sch. B to refuse registrations
Between:
Zion Motors Ltd. and Ikechukwu Frank Nwaukoni
Appellant
-and-
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
Decision on Motion to Extend Time to File Appeal
Adjudicator: Katherine Livingstone, Member
Appearances:
For the Appellants: Ikechukwu Nwaukoni, Self-Represented
For the Respondent: Michelle Samaroo, counsel
Heard by teleconference: October 28, 2021,
Overview
1The appellants, Zion Motors Ltd. (Zion Motors) and Ikechukwu Frank Nwaukoni, brought a motion for an Order from the Licence Appeal Tribunal (LAT) to extend the time to file their appeals under s. 9(2) of the Motor Vehicle Dealers Act ( the “Act”)
2On November 25, 2020, Mr. Nwaukoni, on behalf of Zion Motors, submitted a dealer business application for the registration of Zion Motors as a motor vehicle dealer. Zion Motors has never been registered under the Act. On the same date Mr. Nwaukoni also submitted an individual application for registration as a motor vehicles salesperson under the Act. Mr. Nwaukoni is not presently registered, but had previously been registered and had had his registration revoked.
3Mr. Nwaukoni is the sole director of Zion Motors and, if registered, intends to operate Zion Motors as a vehicle exporter. Mr. Nwaukoni represented both himself and Zion Motors on the motion.
4On June 29, 2021, the Registrar issued a Notice of Proposal to Refuse (NOP) the registrations of both Mr. Nwaukoni and Zion Motors. The basis of the NOP was that Mr. Nwaukoni’s past conduct was inconsistent with the intention and objective of the Act and further that Mr. Nwaukoni had failed to demonstrate how his material circumstances have changed since his registration was revoked in 2015 as required by s.12(b) the Act.
5The appellants did not request a hearing regarding the NOP within the legislated fifteen-day period. On July 20, 2021 the Registrar issued a Final Notice, carrying out the proposal to refuse the registration of the appellants.
6On August 26, 2021, the appellants served the Registrar with a Notice of Motion to extend the time to file their appeals. This was approximately 36 days beyond the expiration of the statutory appeal period.
7The motion hearing commenced before me on October 19, 2021. The appellant, Mr Nwaukoni, gave evidence on behalf of both appellants. During his evidence it became apparent that both the appellant and the respondent had additional material that was not before me, but that might be pertinent to the motion.
8For this reason, I adjourned the matter to October 28, 2021 to allow the parties to submit this additional material.
9The matter was completed on October 28, 2021 and I reserved my decision.
Decision
10Having considered the materials filed and the submissions made by the parties, I dismiss the appellants’ request to extend the time to file an appeal.
Analysis
11The Tribunal has jurisdiction to extend the time for filing an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, which reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal under section11 or any other Act, if the Tribunal is satisfied there are reasonable grounds for applying for the extension and for granting relief, it may,
a. Extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
b. Give the directions that it considers proper as a result of extending the time.
12Determining whether there are reasonable grounds for an extension is not an exact science. In Manuel v. Registrar, Motor Vehicles Act, 2002, the Divisional Court held that the overarching consideration on a motion to extend is whether the “justice of the case” favours an extension.1 The Court held that in determining the issue, the Tribunal ought to consider the following four factors:
13The analysis requires a balancing of these factors when applying the facts. My consideration of each of these factors is made in light of the material before me and the submissions of the parties.
14The onus is on the appellants to establish there are reasonable grounds for granting of the extension.
Bona Fide Intention to Appeal
15The Registrar presented documentation outlining the process of notification to both appellants of the NOP. On June 29, 2021 the Registrar arranged for the NOPs to be sent via FedEx, with confirmation of delivery provided by FedEx. The NOPs were accompanied by a letter stating the appellants had fifteen days to file an appeal with the Licence Appeal Tribunal (LAT) and included the Tribunal’s contact details.
16On July 5, 2021, Mr. Nwaukoni telephoned the Registrar and asked for an update on his application . He was advised a letter had been sent to him the week prior and he should receive it shortly. He inquired whether his application had been refused or approved and he was told he would have to read the contents of the letter.
17The NOP, addressed to both appellants, was sent to them at Zion Motors’ business address and to Mr. Nwaukoni’s home address. The NOP sent to Zion Motors business address was picked up and signed for by Mr. Nwaukoni at the FedEx office on July 8, 2021. There wasn’t successful delivery to Mr. Nwaukoni at his home address until August 3, 2021. At that time, it was signed for by someone other than Mr. Nwaukoni as he was in Nigeria to attend the funerals of two family members.
18On July 13, 2021 the Registrar received the following email from Mr. Nwaukoni;
Maria Cancio, now that you have made OMVIC to refuse me registration, can I have my fees I paid back for I’m not contesting or appealing the decision, it is well, I will move on with my life, just let me know when I’m getting my money back, thanks.
19The Final Notice for the appellant, Zion Motors, was delivered to the business address on July 22, 2021 at 8:15 am. Although the proof of delivery form indicated it was signed for by the appellant, Mr. Nwaukoni, he testified he did not sign for it as he was never at the office at the time of day, having started his work day at his other job. Mr. Nwaukoni also testified that although he had been told there was a package for him at Zion Motors he did not pick it up prior to departing for Nigeria on July 31, 2021.
20The Final Notice for Mr. Nwaukoni was delivered to his home address on the same day, July 22, 2021at 9:29 am. No signature was required so it is unclear as to who took delivery of the Notice.
21I found the appellant’s reasons for not picking up the package to be inconsistent. At one point he said he was too busy getting ready to leave for Nigeria and at another point he said that between July 8 and 31, he was struggling as he was suffering from the effects of COVID, and was scared to leave the house. He also said he would not have signed for the package on July 22 as he was working elsewhere.
22On the first day of the hearing the appellant also said he had been in the hospital, was diabetic and got COVID in the middle of June 2021 as reasons for not filing an appeal on time. However, during the second day of the hearing he clarified that his hospital visit was not overnight but only for the purpose of seeing a specialist, a dietician and to receive some “kidney education”.
23I find that the appellants were served with the NOP on July 8, 2021, and that the 15-day appeal period expired on July 23, 2021. The contents of the email of July 13, 2021 confirm that by that date, at the very least, the appellants were aware of the NOP and the need to appeal within the fifteen-day period. The appellant admitted that, between receipt of the NOP on July 8 and when he left for Nigeria on July 31, 2021, he did not contact the Licence Appeal Tribunal (LAT) or take any steps to appeal the NOP.
24When asked about his email of July 13, 2021, in which he said he was not going to appeal and “just wanted to get on with his life”, the appellant said he had recently been told he was in stage 5 of renal failure and didn’t feel he had much time to live so he wasn’t going to bother to appeal. He said he ”wasn’t in my normal self to do anything”. When asked by counsel whether he was still in stage 5 he said that he was. Counsel then asked what had changed to make him now seek to appeal. He said that he had been “enlightened” through “kidney education” classes and now understood his disease better.
25Mr. Nwaukoni provided medical documentation to support his contention he has significant kidney issues. Additionally, he provided medical reports indicating he was diagnosed with COVID in December 2020. There was nothing to confirm a reoccurrence of COVID in June 2020, as he said his doctor was not available.
26Mr. Nwaukoni testified that, while in Nigeria, he attempted on several occasions to notify the Registrar of his intentions to appeal but he had technical difficulties with transmission. He said he returned to Canada on August 22, 2021 and filed his notice on August 26, 2021.
27Clearly the appellant was encountering medical difficulties in the period leading up to his departure to Nigeria, but I am not satisfied that those difficulties prevented him from initiating some action to appeal the NOP. I found his explanations for his failure to file an appeal contradictory and lacking in credulity. I do not find he had a bona fide intention to appeal.
Length of the delay
28The appellants filed their appeal approximately thirty-four days after the statutory appeal period. I agree with the Registrar’s position that this is a significant period of delay given that the fifteen-day deadline for appeal is a “legislated timeframe in a highly regulated industry concerned with the public protection in motor vehicle sales”.
29In Manuel, the Court reviewed a decision by LAT to dismiss an appellant’s request for an extension of time to file an appeal on a similar NOP. The request for an extension came three days after the end of the appeal period. In upholding LAT’s decision, the court disagreed with the appellant’s position that this short delay alone should have been sufficient to require LAT to grant the extension of time. The court found that “all four aspects of the test are to be considered and no one element necessarily is determinative”.2
30In the present case, the delay is much longer than the delay in Manuel, and I characterize it as significant—it is more than double the timed permitted under the legislation. I also find the appellant has not provided a reasonable explanation for the delay.
Prejudice
31As noted above, the industry involved in this appeal is one that is necessarily highly regulated to ensure protection for the buying public. It is important the public have confidence in the licencing process. While acknowledging the importance of maintaining this confidence, I find the prejudice to the Registrar and/or the public is minimal and this factor to be neutral in terms of the justice of the case.
Merits of the Appeal
32Mr. Nwaukoni was previously registered as a motor vehicle salesperson from September 1, 2006, to September 21, 2010. In October 2009, he successfully applied for a motor vehicle dealer registration as a sole proprietor o/a Zion Auto Sales.
33On April 24, 2015, Zion Auto’s registration was revoked by LAT. The Tribunal found the appellant had record keeping and compliance issues, did not comply with both a discipline order and a former Tribunal order, was deceitful in vehicle transactions and was ungovernable.3
34In reviewing an application for registration where the applicant has been refused in the past, section 12 of the Act requires the appellant show that new or other evidence is available or here has been a material change in circumstances since the last refusal.
35The appellant submits he has changed since the past decision of the Tribunal and he has taken steps to address past concerns. He said he has taken several mechanical and electrical courses, some business law and management courses and has obtained degrees in marketing and management. In his material he included certificates confirming completion of several automotive/mechanical courses. He indicated he has completed every lecture organized by the Brampton Entrepreneur Centre. Further he submitted that he has learned from his past mistakes and “knows it will never happen again”. Additionally, the appellant filed letters of recommendation including one purporting to be from the present mayor of Brampton in support of the appellant to “reobtain his dealership license should he meet the requirements set out by the OMVIC”.
36I found no evidence to conclude that there has been a change in circumstances, Additionally, even if a Tribunal were to conclude that the appellant’s completion of some courses was new evidence they could consider, this would be unlikely to tip the scale in his favour given the serious findings made by the LAT about his conduct that was made just over five years ago.
37This is particularly the case given the LAT was concerned with the appellant’s governability. In his application to LAT for an extension of time to file an appeal of the NOP, the appellant provided the following explanation for his failure to file on time:
The letter from Ontario Motor Vehicle Industry Council (OMVIC) asking me and giving me 15 days ultimatum to file my appeal came in my absent for I was in Nigeria between 31st of July and 22nd of August.
38This explanation is disingenuous, as by the appellant’s own evidence on the motion he knew of the NOP well before he left for Nigeria and, in fact, had written to the Registrar to say he was not appealing almost three weeks before his departure. This, combined with the appellant’s conflicting evidence during the motion, supports my conclusion that the merits of this appeal are not strong. This is so even accounting for the fact that this stage of the test is typically considered to be a low threshold.
Decision
39Considering the relevant factors discussed above, I find that the justice of the case favours denying an extension of time for the appellant to file the appeal. The appellant did not have a bona fide intention to appeal and delayed filing the appeal for a significant period of time without reasonable justification. Moreover, while the prejudice to the Registrar would be at the low end, the appellant’s appeal is largely lacking in merit.
40The appellant’s motion is dismissed.
LICENCE APPEAL TRIBUNAL
Katherine Livingstone, Member
Released: December 3, 2021
Footnotes
- 2012 ONSC 1492 (Div. Ct.)
- Manuel, at para. 27.
- 9116 v Registrar, Motor Vehicles Dealers Act, 2015 CanLII 26085 (ON LAT)