Prime One Auto Inc. v. Registrar, Motor Vehicle Dealers Act, 2002, 2021 CanLII 57245

Licence Appeal Tribunal

Date: 2021-06-28 Tribunal File Number: 13104 MVDA

Appeal from a Proposal of the Registrar under the Motor Vehicle Dealers Act, R.S.O. 2002, c. 30, Sch. B, to Refuse Registration

Between:

Prime One Auto Inc, James Pournader Appellants

and

Registrar, Motor Vehicle Dealers Act, 2002 Respondent

CONSENT ORDER

Order Made by: Ian Maedel, Vice Chair Date of Order: June 28, 2021

BACKGROUND

1This is an appeal from a Notice of Proposal issued by the Registrar under the Motor Vehicles Dealers Act, 2002 (“Act”), to revoke the registration of Prime One Auto Inc. as a motor vehicle dealer, and further proposing to revoke the registration of James Pournader as a motor vehicle salesperson (collectively “the appellants”) pursuant to s. 9 of the Act.

2The parties have advised the Tribunal that they were able to agree upon a settlement of all outstanding issues in this matter have requested that the terms of settlement be incorporated into a Consent Order disposing of this proceeding.

3In accordance with s. 4.1 of the Statutory Powers and Procedure Act, the parties do hearby waive the requirements of a hearing.

ORDER AND DIRECTION

4Accordingly, on the consent of the parties and upon having reviewed the agreement signed by the appellants and the Registrar, the Tribunal, pursuant to Motor Vehicles Dealers Act, 2002 directs and orders that the appellants shall be bound by the terms of the consent agreement signed and executed by all of the parties.

5The signed agreement is appended as Schedule “A” to this Order.

6The hearing scheduled for July 6-8, 2021 is cancelled.

7This Tribunal file shall be closed.

LICENCE APPEAL TRIBUNAL

Ian Maedel, Vice Chair Released: June 28, 2021

Schedule “A”

TO: Licence Appeal Tribunal Tribunals Ontario General Services 15 Grosvenor Street, Ground Floor Toronto, ON M7A 2G6

FROM: Registrar Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council 65 Overlea Blvd., Suite 300 Toronto, ON M4H 1P1

AND FROM: James Shaun Pournader c/o Prime One Auto Inc. 1020 Dundas Street East Whitby, ON L1N 2K2

AND FROM: Prime One Auto Inc. 1020 Dundas Street East Whitby, ON L1N 2K2

Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (“MVDA”) James Shaun Pournader and Prime One Auto Inc. (collectively the “Registrants”) and the Registrar, Motor Vehicle Dealers Act, 2002, (“Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, do hereby waive the requirements of a hearing.

James Shaun Pournader (“Pournader”) and Prime One Auto Inc. (“Prime One Auto”) remain registered as a motor vehicle salesperson and dealer, respectively, under the MVDA. On consent, their registrations shall be subject to this Order of the Licence Appeal Tribunal (“Order”) based upon the following terms and conditions:

REGISTRATION

1. 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.

2. The Registrants shall comply with the Consumer Protection Act and the Sale of Goods Act.

3. The Registrants shall provide the Registrar with notice in writing, within five days, of any substantive changes to their business plan or information provided in obtaining their registration, pursuant to section 31 of Ontario Regulation 333/08.

4. The Registrants shall provide the Registrar with notice in writing, within five days, of any change in the officers or directors of the corporation, pursuant to section 24 of the MVDA. The Registrant further agrees to notify the Registrar of any change in partners or owner, person(s) in charge, and signing authority for the dealership. The Registrant further agrees not to effect such changes without first obtaining the Registrar’s prior approval, in writing.

5. The Registrant acknowledges that "trade" refers to buying, selling, leasing, advertising or exchanging an interest in a motor vehicle or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle as defined in the MVDA and pursuant to section 36 through to and including section 51 of Ontario Regulation 333/08; and is not limited to the signing of contracts. The Registrants further acknowledge that this includes attendance at auction on behalf of the Registrant and positions commonly referred to as Sales Manager, Finance and Insurance Manager, Branch Manager, Business Manager, General Manager or any individual who has supervisory authority over salespersons.

6. The Registrants shall ensure that their registrations will not be used to trade in motor vehicles where the Registrants know, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.

7. The Registrants shall ensure that all personnel, agents, assignees or anyone acting on behalf of the Registrants to trade in motor vehicles will be registered as a salesperson to the dealer, Prime One. Auto Inc.

8. The Registrants shall not conduct business with any person acting as a motor vehicle dealer and trading in motor vehicles without first confirming that the person is registered as a motor vehicle dealer in accordance with the MVDA.

9. Pournader shall not act as a salesperson on behalf of any other dealer, or transfer his registration to another dealer, without having obtained written approval from the Registrar, which will not be unreasonably withheld.

10. The Registrants shall not be involved in the trade of motor vehicles with Streetxtreme Automotive Inc. o/a Streetxtreme Auto Gallery and/or P. Hoang.

PREMISES

11. The Registrants shall operate exclusively from its location approved by the Registrar and will not invite or facilitate the public or any customer to trade at a place other than the approved location, pursuant to section 28 of Ontario Regulation 333/08. This includes, but is not limited to, the signing of contracts related to the trade of a motor vehicle.

12. The Registrants shall maintain a sign at their registered premise that is visible to the public, pursuant to section 30 of Ontario Regulation 333/08.

13. The Registrants shall ensure that all advertisements placed by or on behalf of the Registrant will identify the registered name, address and phone number of the location approved by the Registrar, pursuant to section 36(2) of Ontario Regulation 333/08.

14. The Registrants shall not change the location approved by the Registrar without first obtaining the Registrar’s approval, in writing, pursuant to section 31 of Ontario Regulation 333/08. The Registrants shall then provide the Registrar with notice in writing within five days of any such change of the location.

BOOKS AND RECORDS

15. The Registrants shall maintain books and records, which accurately record the true nature of transactions involving the trade of a motor vehicle. The Registrants shall not be involved in the creation or furnishing of books, records, or any document, which are false or misleading as to the true nature of a transaction involving the trade of a motor vehicle. This includes, but is not limited to, ensuring any information used to obtain customer financing is accurate.

16. The Registrants shall not falsify, assist in falsifying or induce or counsel another person to falsify or assist in falsifying any information or document, relating to a trade in motor vehicles – nor shall the Registrants furnish such information or document – pursuant to sections 26 and 27 of the MVDA.

DISCLOSURE & ACCOUNTABILITY

17. The Registrants 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 sections 4 and 5 of Ontario Regulation 332/08, where applicable.

18. The Registrants shall disclose all material facts about the motor vehicles for purchase or lease to its customers. The Registrant further agrees that notwithstanding whether or not the Registrant considers a fact to be material, the Registrant shall comply with the disclosure obligation. The Registrants shall disclose all material facts on the Bill of Sale, in writing, in a clear, comprehensible and prominent manner. The Registrant will 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, the Registrants further agree to disclose as much detail as possible regarding the nature and severity of the damage. The Registrants undertake to research the history of all the motor vehicles under trade to ensure all material facts are disclosed.

19. The Registrants shall not represent any charges or fees on a Bill of 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 tax, registration fee or certification.

20. The Registrants shall ensure that any contract for the purchase or lease of a motor vehicle to a customer, includes an itemized list of all the charges and fees that the customer is required to pay under the contract.

21. The Registrants shall not collect any funds towards the purchase or lease of a vehicle unless the customer has been provided with full disclosure of any applicable financing or leasing terms. The Registrants acknowledge that if it is not able to provide financing or leasing at agreed-upon terms, the customer shall be advised of other options to purchase, lease or finance, or be offered a refund of their deposit.

22. The Registrants shall ensure, that before entering into a contract with a customer to trade in a motor vehicle, the terms of the contract are explained, including any financial or other obligations. The Registrants shall ensure that customers are asked to and given the opportunity to read any contracts before signing.

23. The Registrants shall provide a copy of the contract to the customer, immediately after the customer has signed it. The Registrants shall ensure that the contract is signed by the customer before the Registrants deliver the vehicle.

24. The Registrants shall be clear and truthful in describing any terms, prices, charges, features, and benefits connected with the trade of a motor vehicle, including any products, services, programs and warranties.

25. The Registrants shall not facilitate the sale of a warranty, unless it is in compliance with section 47 of Ontario Regulation 333/08. This includes, but is not limited to, providing a copy of any warranty contract to the customer immediately after it is signed.

26. The Registrants shall comply with all requests made by the Registrar in relation to any failure to comply with disclosure obligations. Further, where the Registrar reasonably considers any information to be a material fact, the Registrants shall provide compensation to a purchaser concerning a motor vehicle under trade.

27. The Registrants agree to accept full responsibility for the quality of any repairs or alterations to a motor vehicle completed by the Registrant’s personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of the Registrant.

28. The Registrants shall promptly respond to any correspondence made by a representative of the Registrar regarding any complaints and shall exercise best efforts to promptly resolve any complaints.

FINANCIAL RESPONSIBILITY

29. The Registrants shall ensure that any customer claim made to the Motor Vehicle Dealers Compensation Fund (the “Fund”) in relation to the Registrants, and the Fund determines entitlement to compensation of the claim pursuant to section 42 of Ontario Regulation 338/08; that the Registrants shall reimburse the Fund for any monies paid in relation to the claim.

COURSE REQUIREMENT

30. Pournader shall immediately enroll in the Ontario Motor Vehicle Industry Council's Automotive Certification Course (“Certification Course”) and be responsible for all fees in relation to enrolment. The Registrant shall successfully pass the Certification Course within 90 days of the date of this Order and shall forthwith provide proof of compliance to the Registrar.

COMPLIANCE

31. The Registrants shall ensure that all employees, personnel, agents, assignees or anyone acting on behalf of the Registrant are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.

32. These Terms and Conditions shall remain effective from the date of acceptance by the Registrants for a period of two years at which time, the Registrants may make a request, in writing, to the Registrar for the removal or amendment of said conditions.

ACKNOWLEDGMENT AND UNDERTAKING:

33. The Registrar is relying on the accuracy and completeness of all documents, statements or information provided by the Registrant in support of the Registrant’s application for registration.

34. The documents, information or statements provided to the Registrar are true to the best of the Registrants’ knowledge, and belief; and that full answer to all questions, inquiries and requests made by the Registrar.

35. 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.

36. This agreement is not an admission of guilt of any wrongdoing by any of the parties to this agreement.

37. Independent legal advice has been obtained or the Registrants have had the opportunity to obtain independent legal advice respecting consent to the Terms and Conditions contained in this document.

Signed in the City of this day of 2021.

James Shaun Pournader (signature)

_

James Shaun Pournader on behalf of Prime One Auto Inc. (signature)

These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.