Appeal from a Notice of Proposal to Suspend Registration dated February 10, 2021, by the Registrar pursuant to the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B
Between:
S.M. Auto Sales Inc. & Shakeel Malik
Appellants
-and-
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
CONSENT ORDER
1The appellants and the Registrar under the Motor Vehicle Dealers Act, 2002 (the “Registrar”) apply under section 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 for an order of the Tribunal to dispose of this matter without a hearing.
2I have reviewed the consent agreement, which is signed by the appellants and John Carmichael, Registrar, and which is attached to this Consent Order as “Schedule A”.
3On consent of the parties, I order that the proceedings in this matter are concluded and disposed of without a hearing on the basis of the terms set out in the attached Schedule A, which are incorporated into and made part of this Consent Order.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
Released: April 8, 2021
Schedule “A”
TO: Licence Appeal Tribunal Tribunals Ontario Safety, Licensing Appeals and Standards Division PO Box 250 Toronto, ON M7A 1N3
FROM: The Registrar, Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council 65 Overlea Blvd., Suite 300 Toronto, ON M4H 1P1
AND FROM: S.M. Auto Sales Inc. 419 Huronia Road, Unit A Barrie, ON L4N 9B3
AND FROM: Shakeel Ahmed Malik c/o S.M. Auto Sales Inc. 419 Huronia Road, Unit A Barrie, ON L4N 9B3
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (the “MVDA”), S.M. Auto Sales Inc. (“S.M. Auto”), Shakeel Ahmed Malik (“Malik”) (collectively, the “Registrants”) and the Registrar, Motor Vehicle Dealers Act, 2002, (“the Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, do hereby waive the requirements of a hearing and consent to an Order of the Licence Appeal Tribunal based upon the following terms and conditions:
REGISTRATION
The Registrar agrees that S.M. Auto will be registered as a motor vehicle dealer and Malik will be registered as a motor vehicle salesperson for S.M. Auto, subject to the requirements outlined in the MVDA.
The Registrants shall comply with all requirements of the MVDA and Ontario Regulation 333/08, the Code of Ethics in Ontario Regulation 332/08, the Ontario Motor Vehicle Industry Council (“OMVIC”) Standards of Business Practice, 2010 and OMVIC Guidelines, as may be amended from time to time. The Registrants further agree to read all correspondence and bulletins from OMVIC as released.
The Registrants agree to comply with any outstanding and all future requests from the Registrar for information, pursuant to s. 14(3) of the Motor Vehicle Dealers Act, 2002, in a timely manner.
BOOKS AND RECORDS
S.M. Auto shall maintain books and records in accordance with the MVDA and pursuant to section 52 through to and including section 60 of Ontario Regulation 333/08. It shall maintain these books and records solely at its registered premises.
S.M. Auto shall ensure that its books and records accurately record the true nature of transactions involving its trade of a motor vehicle. S.M. Auto shall not be involved in the creation of books and records which are false or misleading as to the true nature of a transaction involving its trade of a motor vehicle.
S.M. Auto shall provide free access to its books and records to the Registrar or to an authorized representative of the Registrar in accordance with section 15 of the MVDA.
S.M. Auto shall maintain a garage register in accordance with section 60(1) of the Highway Traffic Act (“HTA”) and pursuant to section 57 of Ontario Regulation 333/08.
S.M. Auto shall not purchase a motor vehicle without first ensuring that the vehicle is registered to the seller in the records of the Ontario Ministry of Transportation (“MTO”).
S.M. Auto shall ensure that all vehicles that it purchases are registered within 6 days of their purchase in accordance with section 11 of the Highway Traffic Act (“HTA”).
S.M. Auto shall undertake to ensure that all vehicles that it sells or leases shall be registered in the name of the purchaser in the records of the MTO before releasing the vehicle to the purchaser.
S.M. Auto shall undertake that in the event their books and records are lost, stolen or destroyed in whole or in part, the Registrar shall be advised, in writing, within 5 days of the event pursuant to section 55 of Ontario Regulation 333/08. This notification shall include all relevant documentation. The documentation shall include, but is not limited to, police reports, insurance claims and affidavits. S.M. Auto further agrees to make all reasonable efforts to reconstitute the lost, stolen or damaged records.
S.M. Auto shall obtain a receipt prior to the removal of any records by a government or professional agency, or any other person or entity, from the registered premise. Such receipt shall include the recipient's name, address, telephone number, description of records taken, the time of return and signature of recipient. S.M. Auto undertakes to provide the receipt to OMVIC when requested by the Registrar.
DISCLOSURE
S.M. Auto shall ensure that all trades in motor vehicles are completed in accordance with section 30 of the MVDA and pursuant to sections 39, 40, 41, 42 and 43 of Ontario Regulation 333/08 and section 4 of Ontario Regulation 332/08, where applicable.
S.M. Auto shall disclose all material facts about the motor vehicles for sale or lease to its customers. S.M. Auto further agrees that notwithstanding whether or not it considers a fact to be material, S.M. Auto shall comply with the disclosure obligation. It further agrees to disclose all material facts on the Bill of Sale, in writing. S.M. Auto 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, S.M. Auto further agrees to disclose as much detail as possible regarding the nature and severity of the damage. S.M. Auto undertakes to research the history of all the motor vehicles under trade to ensure all material facts are disclosed.
S.M. Auto agrees not to represent any charges or fees on a Bill Sale as being required by law where the charges or fees are not required by law. For greater clarity, this includes charges or fees such as registration fee or certification.
S.M. Auto shall comply with all requests for information made by the Registrar in relation to any failure to comply with its disclosure obligations. Further, if, in the opinion of the Registrar, and subject to any legal defence, S.M. Auto failed to properly disclose to its customers a material fact about a motor vehicle it sells, S.M. Auto shall provide reasonable compensation to the purchaser if the purchaser suffered quantifiable damages in relation to the non-disclosure.
Subject to any legal defenses, S.M. Auto agrees to accept full responsibility for the quality of any repairs, safety inspections and/or alterations to a motor vehicle completed by its personnel, agents, assignees, affiliated repair facilities or anyone acting on its behalf.
S.M. Auto agrees that all motor vehicles sold by it, or on its behalf, that are not being sold on an “as-is” basis, shall be of “merchantable quality”. S.M. Auto acknowledges that a vehicle is not of merchantable quality unless it provides transportation. For clarity, this means that there must be no hidden/undisclosed defects, and the vehicle must provide reasonable transportation for a reasonable period of time. This does not need to be written into the sales agreement; the Sale of Goods Act implies this as a condition within the contract.
S.M. Auto agrees that purchasers are entitled to quiet possession of their vehicles. For clarity, this means, among other things, that S.M. Auto shall ensure that there are no liens registered against a motor vehicle when it is sold to a customer, or that it is not at risk of being seized by law enforcement. This does not need to be written into the sales agreement. Under the Sale of Goods Act, it is an implied condition that the seller has the right to sell the vehicle.
S.M. Auto and its motor vehicle salespersons shall be clear and truthful in describing the features, benefits and prices connected with the motor vehicles which it trades and in explaining the products, services, programs and prices connected with those vehicles.
COMPLAINTS AND DOCUMENTS
Upon receipt of a written request from the Registrar, S.M. Auto shall provide the Registrar, or his or her representatives, with information or documents in relation to complaint(s) received by the Registrar against it. This information shall be provided to the Registrar within a reasonable amount of time.
Upon receipt of, or becoming aware of, complaints from any of its customers, S.M. Auto shall use its best efforts to respond to and resolve that such complaints within a reasonable amount of time.
GENERAL
The Registrants acknowledge that the Registrar may take further administrative action, including a proposal to suspend or revoke registration, arising from any matters that have occurred or may occur related to honesty and integrity, financial responsibility or compliance with these terms and conditions.
The Conditions contained in this document shall be in force for a period of three (3) years from the date of the Order of the Licence Appeal Tribunal.
S.M. Auto Sales Inc.
Date:
I have authority to bind the Corporation
Shakeel Ahmed Malik
Date:
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
John Carmichael, Registrar
Date: