Appeal from a Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, C.30, Sched. B and Regulations as amended to revoke registrations
Between:
Mario D’Angelo Automotive Inc. o/a Wenmar Automotive and Mario D’Angelo
Appellants
and
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
CONSENT ORDER
ADJUDICATOR: Harriet Lewis, Member
APPEARANCES:
For the Appellant: Symon Zucker, Counsel
For the Respondent: Jane Samler, Counsel
To have been heard by videoconference: July 17, 28, 29, 30, 2021
CONSENT ORDER
1On July 22, 2020, the Registrar Motor Vehicle Dealers Act, 2002 (“the Act”) issued a Notice of Proposal, (“the Proposal”) to revoke the registration of Mario D’Angelo Automotive Inc, o/a Wenmar automotive as a motor vehicle dealer and to revoke the registration of Mario D’Angelo as a Motor vehicle salesperson under the Act.
2The parties have reached a resolution of this matter and have executed Minutes of Settlement which have been presented to the Tribunal.
3I am satisfied that the resolution reached by the parties is fair and appropriate and addresses the concerns raised by the respondent in the Proposal.
4Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (“MVDA”) Mario D’Angelo and Mario D’Angelo Automotive Inc o/a Wenmar Automotive (collectively the “Registrants”) and the Registrar, Motor Vehicle Dealers Act, 2002, (“Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, have waived the requirements of a hearing.
ORDER
5On consent of the parties I order that the Appellants’ registrations under the Act be continued on the terms and conditions set out in the Minutes of Settlement attached hereto as Schedule A.
6The appeal of this matter is withdrawn, and the Tribunal’s files will be closed.
Licence Appeal Tribunal
Harriet Lewis, Member
Released: July 28, 2021
Schedule ‘A’
TO: Licence Appeal Tribunal Tribunals Ontario
FROM: Registrar, Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council
AND FROM: Mario D’Angelo
AND FROM: Mario D’Angelo Automotive Inc o/a Wenmar Automotive
IN THE MATTER OF the Motor Vehicle Dealers Act, 2002, Chapter 30, Schedule B and Regulations, as amended
Between: Mario D’Angelo Automotive o/a Wenmar Automotive and Mario D’Angelo and the Registrar, Motor Vehicle Dealers Act, 2002
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (‘MVDA”), Mario D’Angelo and Mario D’Angelo Automotive Inc o/a Wenmar Automotive (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.
Mario D’Angelo (“D’Angelo”) and Mario D’Angelo Automotive Inc. (“Wenmar Automotive’) 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
Wenmar Automotive shall remain registered to the wholesaler class of registration and shall not apply to change their class of registration for a period of two years from the date of this Order.
The Registrants shall comply with the Consumer Protection Act and the Sale of Goods Act.
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 and where applicable to the wholesaler class of registration. The Registrants further agree to read all correspondence and bulletins from OMVIC as released.
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.
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.
The Registrants acknowledge 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 Registrants 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.
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.
The Registrants shall ensure that all employees, 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, Wenmar Automotive.
The Registrants shall not conduct business with any person or business acting as a motor vehicle dealer and trading in motor vehicles without first confirming that the person or business is registered as a motor vehicle dealer in accordance with the MVDA.
Wenmar Automotive is registered under the wholesaler class. The Registrants shall ensure that Wenmar Automotive, or any person acting on its behalf, shall not trade in any motor vehicles other than with registered dealers and wholesale auctions. As such, the Registrants shall not engage in the trade of motor vehicles with garages or repair shops, which the Registrants know or ought to know, are not registered dealers. In particular, this includes Alex Automotive and Fuzion Auto.
D’Angelo shall not act as a salesperson on behalf of any other dealer, or transfer his registration to another dealer, without having obtained prior written approval from the Registrar, which will not be unreasonably withheld.
The Registrants shall not engage in the trade of motor vehicles, where the Registrants knew or ought to have known, the vehicle is personally owned by D’Angelo or any of Wenmar Automotive’s employees or family members.
BOOKS AND RECORDS
The Registrants shall maintain all books and records at the Registrant's registered premises in accordance with the MVDA and pursuant to section 52 through to and including section 60 of Ontario Regulation 333/08. For example, the Registrants shall maintain records with respect to vehicle repairs, vehicle trades and its business operations.
The Registrants shall maintain books and records, which accurately records the true nature of transactions involving the trade of a motor vehicle. The Registrants will not be involved in the creation of books and records, which are false or misleading as to the true nature of a transaction involving the trade of a motor vehicle.
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.
The Registrants shall provide free access to books and records of the Registrant to an authorized representative of the Registrar in accordance with section 15 of the MVDA. The Registrants shall produce any documents or records, required during the course of an inspection, without delay and within the form requested by an inspector.
The Registrants 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.
The Registrants shall not purchase a vehicle without first ensuring that the vehicle is registered to the seller in the records of the Ontario Ministry of Transportation (“MTO”).
The Registrants shall ensure that all vehicles purchased will be registered within 6 days in accordance with section 11 of the Highway Traffic Act (“HTA”).
The Registrants shall undertake that in the event their books and records are lost, stolen or destroyed in whole or in part, the Registrar will be advised, in writing, within 5 days of the event pursuant to section 55 of Ontario Regulation 333/08; and will include all relevant documentation. The documentation will include, but is not limited to, police reports, insurance claims and affidavits. The Registrant further agrees to make all reasonable efforts to reconstitute the lost, stolen or damaged records.
The Registrants 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 will include the recipient's name, address, telephone number, description of records taken, the time of return and signature of recipient. The Registrant undertakes to provide the receipt to OMVIC when requested by the Registrar.
FINANCIAL RESPONSIBILITY
The Registrants agree not to receive any new private sources of financing without the prior approval of the Registrar. This does not apply where the Registrant has applied on his own account and has obtained financing from a corporation registered under the Loan and Trust Corporations Act, the Bank Act or from a credit union or league to which the Credit Unions and Caisses Popularies Act, as may be amended from time to time.
The Registrants shall maintain bank accounts that are compliant with section 59 of Ontario Regulation 333/08.
The Registrants shall ensure that bank account transactions relate exclusively to the operation or financing of the business. The Registrants shall notify the Registrar of any change in any business banking accounts.
DISCLOSURE & ACCOUNTABILITY
The Registrants shall ensure that all trades in motor vehicles are completed in accordance with sections 4 and 5 of Ontario Regulation 332/08, where applicable. The Registrants acknowledge and understand that when entering into a contract to sell or lease a motor vehicle to another registered dealer certain disclosures and information are required to be included in the contract.
The Registrants shall disclose all material facts about the motor vehicles for purchase or lease to its customers. The Registrants further agree that notwithstanding whether or not the Registrant considers a fact to be material, the Registrants 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 Registrants 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, 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.
The Registrants shall provide a copy of the contract to the purchaser, immediately after the purchaser has signed it. The Registrants shall ensure that the contract is signed by the purchaser before the Registrants deliver the vehicle.
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.
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.
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.
COURSES REQUIREMENT
D’Angelo 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.
D’Angelo shall immediately enroll in the Georgian College Automotive Record Keeping Course (“Record Keeping Course”) and be responsible for all fees in relation to enrolment. The Registrant shall successfully pass the Record Keeping Course within 90 days of the date of this Order and shall forthwith provide proof of compliance to the Registrar.
INTERESTED PERSON/REAL CONTROLLING MIND
The Registrants will not permit the involvement of ROBERT IRAHETA in directly or indirectly in the operation of the dealership. This includes but is not limited to any involvement in any administrative, supervisory, management, financing or customer service capacity. Further, the Registrant will not permit the involvement of ROBERT IRAHETA in the capacity of repair or service of motor vehicles.
The Registrants will not permit involvement of ROBERT IRAHETA in the operation of the dealership without the prior written consent of the Registrar. This includes, but is not limited to, any administrative, supervisory, management, financing or customer service capacity.
The Registrants will not permit the involvement of MARCO IRAHETA in directly or indirectly in the operation of the dealership. This includes but is not limited to any involvement in any administrative, supervisory, management, financing or customer service capacity. Further, the Registrant will not permit the involvement of MARCO IRAHETA in the capacity of repair or service of motor vehicles.
The Registrants will not permit involvement of MARCO IRAHETA in the operation of the dealership without the prior written consent of the Registrar. This includes, but is not limited to, any administrative, supervisory, management, financing or customer service capacity.
LETTER OF CREDIT
The Registrant shall provide an irrevocable Letter of Credit in the amount of $25,000 CAD within 30 days of the date of signing these terms and conditions.
The irrevocable Letter of Credit shall be provided to the Motor Vehicle Dealers Compensation Fund (the “Fund”). The purpose of the Letter of Credit is to satisfy any consumer claims to the Fund made against the Registrants. In addition, if your dealership ceases to operate the Registrar is entitled to hold your funds for a minimum of two years based on the same purpose as above.
The Registrants shall provide a replacement Letter of Credit within 30 days, upon written demand by the Registrar, for the purpose of replacing any partial or full drawings made of the above-mentioned $25,000 CAD.
If the Registrant does not have any claims from any consumers made to the Fund, in the term of two years from the date of submitting the Letter of Credit, you may submit a written request for the release of the Letter of Credit and the request will be reviewed by the Registrar at that time. The release is subject to the Registrar’s approval which shall not be unreasonably withheld.
COMPLIANCE
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.
These Terms and Conditions shall remain effective from the date of acceptance by the Registrants for a period of at least two years at which time, the Registrants may make a request, in writing, to the Registrar for the removal or amendment of these conditions.
The Registrants acknowledge and understand that they: failed to promptly comply with the inspector’s request for documentation; failed to provide an updated garage register; failed to ensure its contracts to trade in motor vehicles contained all the required disclosures and information; and from approximately April 2019 to March 2020 engaged in the trade of 14 motor vehicles to individuals or businesses who were not registered dealers, thereby breaching its class of registration as a wholesaler pursuant to s. 21 Ontario Regulation 333/08.
ACKNOWLEDGMENT AND UNDERTAKING:
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.
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.
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.
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 Concord this 27th day of July 2021.
Mario D’Angelo (signature)
_
Mario D’Angelo on behalf of
Mario D’Angelo Automotive Inc o/a Wenmar Automotive (signature)
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date: July 27, 2021
John Carmichael