John O’Brien v. Registrar of Bailiffs, 2021 CanLII 55126

Tribunals Ontario

Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-06-16

Appeal from a Notice of Proposal of the Registrar of Bailiffs to refuse renewal of a registration under the Bailiffs Act

Between:

John O’Brien Appellant

-and-

Registrar of Bailiffs Respondent

ADJUDICATOR:

Stephen Scharbach, Member

APPEARANCES:

For the Appellant:

John O’Brien, self-represented

For the Respondent:

Jefferey Ludlow, Counsel

Heard Videoconference:

April 27, 2021

DECISION and ORDER

A. Introduction

1This is an appeal by Mr. John O’Brien (“appellant”) from a proposal issued by the Registrar of Bailiffs (“Registrar”) to refuse to renew the appellant’s registration as an assistant bailiff under the Bailiffs Act, R.S.O.1990, c. B.2 (Act”).

2Under the Act, the Registrar may refuse to renew a registration if, in the Registrar’s opinion, the registrant has not complied with the Act or the regulations.

3The Registrar alleges that the appellant failed to comply with the Act by providing false information in his registration renewal application. The appellant answered “no” to a question that asked whether he was the subject of any criminal charges. However, in fact he had been charged with a criminal offence which was outstanding at the time the application was made.

4The appellant claims that he answered “no” inadvertently and did not intentionally attempt to mislead the Registrar.

5As set out below, on the evidence presented I conclude that the appellant knowingly furnished false information in his licence application and I have directed the Registrar to carry out the proposal to refuse to renew his registration.

The Law

6Anyone acting as an assistant bailiff in Ontario must be registered under the Act. Applications for registration are made to the Registrar. According to section 9.2 of the Act, an applicant is entitled to be granted registration unless:

• the applicant is not qualified…,
• the applicant’s past conduct affords reasonable grounds for belief that the applicant will not act as an assistant bailiff in accordance with the law and with integrity and honesty,
• the applicant has not complied with the Act or regulations.

7If the Registrar proposes to refuse an application for registration/renewal, the Registrar must give written notice to the applicant including reasons for the proposed refusal and notification of a right to a hearing before this Tribunal.

8If a hearing is requested, the Act provides that this Tribunal shall hold a hearing and

may by order direct the Registrar to carry out the proposal, refrain from carrying out the proposal, and to take such action as the Tribunal considers the Registrar ought to take.

9In this case the Register proposes to refuse the appellant’s renewal application because he allegedly contravened the Act, specifically s. 18(1). That provision makes it an offence for any person to furnish

… false information in any application made under the Act or in any form, statement, return or other document required to be furnished under this Act.

The Facts

10The basic facts are not in dispute. The appellant has been registered as an assistant bailiff since July 2010.

11Assistant bailiffs are required to renew their registration every two years and must complete a renewal application form. Assistant bailiffs are employed by and operate under the supervision of a bailiff. Once the assistant bailiff completes the renewal application form, it is signed by the employing bailiff and then submitted to the Registrar.

12The form contains seven questions and if the applicant answers “yes” to any of them, the applicant is asked to provide details and attach any relevant information. Depending on the information, the Registrar may conduct further inquiries and gather information but ultimately the Registrar relies on the information submitted on the renewal application to decide whether to grant or refuse a renewal.

13One of the seven questions is:

“Have you ever been convicted of an offence under any law of any province, territory, state or country, or are you currently the subject of any charges?

14In this case, the applicant completed and signed a renewal application on August 6, 2019 which was later signed by his employing bailiff and submitted to the Registrar.

15The appellant answered “no” to the question about whether he was currently the subject of any charges. That answer was false. On March 1, 2019 the appellant was charged with a Criminal Code offence and he was still facing that charge when he signed the renewal application form.

16The appellant states that his answer was wrong, but it was given inadvertently and not with an intention to mislead the Registrar or conceal the charge. He states that he has completed the renewal application several times since first becoming registered as an assistant bailiff. The application must be completed every two years and for each bailiff for whom he is working. The appellant was working for two bailiffs for most of that time, so he has submitted the form about 10 times.

17According to the appellant he has saved the application form on his computer for convenience and when he signed it on August 6, 2019, he simply “cut and pasted” his previous answers without reading the questions or giving them much thought. In other words, he carelessly but unintentionally submitted the renewal form with the answer “no” incorrectly ticked off instead of “yes”.

B. Analysis

18Based on the evidence presented, I conclude on a balance of probabilities that the appellant knowingly furnished false information to the Registrar in his renewal application by indicating that he was not currently the subject of any charges. As a result, I agree with the Registrar that the appellant contravened the Act and that the appellant’s renewal application should be refused. I reach that conclusion for the following reasons.

19In the context of this case, I find it difficult to accept that the appellant routinely re-submitted the renewal application form without first considering the questions and especially the question about pending charges.

20Firstly, the appellant was facing a serious charge which potentially could negatively impact his liberty, ability to work, and reputation. The appellant is 65 years old and there is no evidence that he has ever been convicted of a criminal offence. It appears this charge was a singular event in the appellant’s life, and it is difficult to imagine that it was not of significant immediate concern to him.

21Secondly, around the time the appellant submitted the application, his matter was routinely before the court. The charge was laid in March 2019 and the renewal form was signed about 5 months later in August 2019. Between March and August 2019, the appellant had monthly court appearances including one on July 12, 2019 and another on August 12, 2019. I accept the appellant’s testimony that he was represented by a lawyer and did not personally appear in court on most occasions. However, given the nature of the charges and the monthly court appearances about which he would have at least communicated with his lawyer, I think it likely that the charge was a significant and on-going concern to him around the time he signed the renewal application.

22Also, a few weeks before signing the renewal application, the appellant brought a successful court application to ease the conditions of his release.

23After the appellant’s first court appearance in March 2019, he was released on conditions that included a prohibition on possessing any cell phone, pager, or any other device that can access the internet. That would have severely limited his ability to work as an assistant bailiff. According to the appellant, he took a leave of absence from his employment but did not tell his employer about the charge.

24The appellant applied for a variation of those conditions and in June 2019 the prohibitions against possessing a cell phone or internet device were replaced with conditions allowing him to possess a cell phone and access the internet for specified purposes. The result was that the appellant’s release conditions no longer prevented him from working as an assistant bailiff and in early August 2019 he applied for a renewal of his registration.

25In summary, it seems clear that the charge and the conditions of his release as they impacted the appellant’s ability to work continued to be a serious concern to him around the time he completed the renewal application. In this context, it seems unlikely that the appellant would inadvertently state that he was not then the subject of any charges.

26Thirdly, the application form itself is unambiguous. It is a three-page form which essentially consists of the applicant’s identifying information and the seven questions including the one about pending charges. At the top of the first page applicants are warned in bold letters that:

It is an offence to make a false statement in this application. In addition to any charges that may be laid, a false statement may delay the processing of this application and result in its refusal.

27The appellant signed the application just below a sentence that reads,

“I hereby certify that the information provided is, to the best of my knowledge and belief, true.”

28The form is short, clear, and only consists of seven questions. It contains a bolded warning that making a false statement is an offence. Given the context and the appellant’s circumstances I consider it unlikely that the appellant would carelessly sign the application without checking its contents.

29I find it even more unlikely given the appellant’s background as an enforcement officer with the Ministry of Transportation for 31 years. His responsibilities included enforcing the various statutes and regulations that apply to the truck and bus industries, conducting audits, inspections and investigations, laying charges for violations, and completing the required court documents to bring the charges to court.

30Given the appellant’s experience in regulatory enforcement for more than three decades, it seems unlikely that the appellant would, as he asserts, casually sign a form containing a false statement on a matter that was current and critical to him both professionally and personally.

31In all of the circumstances, I consider it more likely than not that the appellant signed and submitted his renewal application knowing that it contained a false answer to the question about pending charges, taking a chance that it would not be detected and he would not have to reveal the charge to either the Registrar or his supervising bailiff.

32I therefore find on a balance of probabilities that the appellant failed to comply with the Act by knowingly providing false information in his renewal application. In my view the appropriate disposition is to direct the registrar to carry out the proposal and refuse the appellant’s application. Honesty in the application process is fundamental to the registration scheme under the Act. The registration system is ultimately meant to protect the public. No person may act as an assistant bailiff unless they are determined by the Registrar to be entitled to registration. The Registrar relies on two sources of information to make that determination – complaints and the information submitted by applicants on their application/renewal forms. Registrants are required by law to answer those questions truthfully.

33Knowingly providing false information in a renewal application undermines the regulatory scheme and casts doubt on the registrant’s willingness to be truthful with the regulator in other matters. In my view, in all of the circumstances of this case, I conclude that the Registrar’s notice of proposal to refuse the appellant’s renewal application should be carried out.

C. ORDER

34Pursuant to s. 10(4) of the Bailiffs Act, I order the Registrar to carry out the Registrar’s notice of proposal dated January 25, 2021 to refuse to renew the registration of Mr. John O’Brien as an assistant bailiff.