Besner v. Registrar, Motor Vehicle Dealers Act, 2002, 2021 CanLII 35590

Licence Appeal Tribunal

Date: 2021-04-23

Appeal from a Proposal of the Registrar under the Motor Vehicle Dealers Act, 2002, to Refuse Registration

Between:

Joseph Clement Etienne Andre Besner Appellant

and

Registrar, Motor Vehicle Dealers Act, 2002 Respondent

ORDER

ADJUDICATOR: Harriet Lewis, Member

APPEARANCES:

For the Appellant: Elizabeth Bennett-Martin, Counsel Julius Ko, Counsel

For the Respondent: Diana Mojica, Counsel

Heard by Videoconference April 20, 21, 2021

CONSENT ORDER

1The appellant requested a hearing before this Tribunal to appeal the respondent’s Notice of Proposal to refuse his registration as a motor vehicle salesperson.

2The parties in this matter have resolved the issues in dispute, have agreed to terms and conditions for the registration of the appellant as a motor vehicle salesperson, and have asked the Tribunal to issue an order or consent disposing of this proceeding.

ON CONSENT OF THE PARTIES I ORDER:

1. Pursuant to s. 4.1 of the Statutory Powers Procedures Act, and ss. 6(2) of the Motor Vehicle Dealers Act, 2002 ( “the MVDA”), the parties waive the requirement of a hearing.

2. Mr. Besner will be entitled to registration as a motor vehicle salesperson as of the date of the release of this Order and once the Sponsoring Dealer acknowledges receipt of this Order, in writing, to the Registrar.

3. As agreed by the parties, Mr. Besner’s registration as a salesperson shall be subject to the following terms and conditions for a period of two (2) years from the date of the Order. The conditions will expire at the end of that period subject to their being complied with and to Mr. Besner’s maintaining his registration as a salesperson throughout that period:

   i. Mr. Besner shall comply with all requirements of the Motor Vehicle Dealers Act, 2002, and Ontario Regulations 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. Mr. Besner agrees to read all correspondence and bulletins from OMVIC as released.

   ii. Mr. Besner shall only be employed by a motor vehicle dealer acceptable to the Registrar (“the sponsoring dealer”). The Registrar shall not unnecessarily withhold this approval.

   iii. Mr. Besner shall not transfer his registration as a salesperson to another sponsoring dealer without having first obtained the prior written consent of the Registrar, which consent will not unreasonably be withheld.

   iv. Mr. Besner shall inform his sponsoring dealer, and any other subsequent sponsoring dealers with whom he is employed as a salesperson, of these conditions, and shall supply proof of this in a form satisfactory to the Registrar.

   v. Mr. Besner shall not be a partner, shareholder, officer, director, or controlling mind of a dealer, nor shall he apply to be registered as a motor vehicle dealer.

   vi. Mr. Besner shall not be an “interested person” in respect of a dealer. An interest person is defined in s. 6(4) of the Act.

   vii. Mr. Besner shall provide the Registrar with notice in writing, of any substantive changes to the information he provided in obtaining his registration, within five(5) days of such changes pursuant to s. 31 of Ontario Regulation 333/08.

   viii. Mr. Besner will continue to comply with his probation order dated February 12, 2020.

   ix. Mr. Besner shall ensure that all trades in motor vehicles are completed in accordance with s. 30 of the MVDA and pursuant to ss. 39, 40, 41, 42 and 43 of Ontario Regulation 333/08 and s. 4 of Ontario Regulation 332/08, where applicable.

   x. Mr. Besner shall disclose all material facts about motor vehicles for purchase or lease to their customers. He further shall disclose all material facts on the Bill of Sale, in writing. He shall ensure compliance with the disclosure obligations notwithstanding whether the vehicle has been branded by the 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 a damaged vehicles, Mr. Besner further agrees to disclose as much detail as possible regarding the nature and severity of the damage. He undertakes to research the history of all motor vehicles under trade to ensure all material facts are disclosed.

   xi. Mr. Besner will provide to the sponsoring dealer with notice in writing of any findings of guilt convictions and pending charges in the future. He will provide the Registrar with the copy of the notification acknowledged by the signature of the sponsoring dealer.

   xii. Mr. Besner confirms that the particulars and circumstances of the guilty plea and conviction dated February 12, 2020 are substantially as disclosed to the Registrar.

   xiii. Mr. Besner will provide the Registrar with truthful, full and complete disclosure in all correspondence and in all applications regardless of whether disclosure has been made previously to the Registrar.

   xiv. The Registrar may take further administrative action, including making 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”.

4. The parties confirm that independent legal advice has been obtained or Mr. Besner has had the opportunity to obtain independent legal advice prior to consenting to the Terms and Conditions contained in this document.