Tribunal File Number: 12855/MVDA
Appeal from a Notice of Proposal under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B. to Refuse a Registration
Between:
Sergio De Carvalho
Appellant
and
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
CONSENT ORDER
ADJUDICATOR: Jennifer Friedland
APPEARANCES:
For the Appellants: Laney Paddock, counsel
For the Respondent: Michelle Samaroo, counsel
Date and Location of Hearing: June 28, 29, 30, 2021 by video
Overview
1This was an appeal from a Notice of Proposal issued by the respondent, the Registrar under the Motor Vehicle Dealers Act, 2002 (the Act) to refuse the appellant’s application for registration as a motor vehicle salesperson under the Act.
2The hearing commenced on June 27 2021. After three days of evidence the matter was set to continue on August 4, 2021. However, on the return date, the parties advised that they had reached an agreement in which the appellant’s licence would be issued subject to certain terms and conditions.
3Having resolved all matters at issue on the appeal, the parties request an order on consent from the Tribunal which will reflect the terms of their agreement and dispose of the appeal without a hearing pursuant to s. 4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
4Therefore, on consent of the parties, and having reviewed the agreement reached by the parties, the Tribunal orders as follows:
ORDER & DIRECTION
5On consent of the appellant and the Registrar, the parties are hereby ordered and directed to comply with the terms of the agreement signed and executed on August 4, 2021 by the appellant and August 5, 2021 by the Registrar.
6A copy of the parties’ agreement is attached to this Order as Schedule ‘A’. The remaining dates for the hearing will be vacated.
7The Tribunal will close its file with respect to this matter.
LICENCE APPEAL TRIBUNAL
_______________________
Jennifer Friedland, Member
Released: August 06, 2021
SCHEDULE ‘A’
TO: Licence Appeal Tribunal
Tribunals Ontario
Safety, Licensing Appeals and
Standards Division
P.O. 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: Sergio Manuel De Carvalho
c/o Laney Paddock
Danson & Zucker
Symon Zucker Professional Corporation
375 University Avenue, Suite 701
Toronto, ON M5G 2J5
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (“the Act”), Sergio Manuel De Carvalho (“De Carvalho”) 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:
GENERAL
The Registrar shall grant registration to De Carvalho as a motor vehicle salesperson subject to the conditions detailed hereunder.
De Carvalho will not be partner, shareholder, officer, director, or have direct or indirect control of a dealer for a period of five (5) years from the date of this Order.
Notwithstanding paragraph 2 above, De Carvalho will not be a manager, person-in-charge or be involved in the financial management of a dealer for a period of two (2) years from the date of this Order.
De Carvalho will not be the final signatory on any contracts in relation to a trade of a motor vehicle on behalf of the dealer for a period of two (2) years from the date of this Order.
Any sponsoring dealer that De Carvalho applies to be registered to must be approved by the Registrar’s office in advance of registration being granted and such approval shall not be unreasonably withheld. Without limiting the generality of this paragraph, the Registrar approves the current sponsoring dealer for De Carvalho.
De Carvalho will notify his sponsoring dealer(s)—in writing—of any findings of guilt, convictions, Highway Traffic Act tickets/fines, and/or pending charges within five (5) days of the event. De Carvalho will provide the Registrar with a copy of the notification acknowledged by the signature of the sponsoring Dealer within three days of the date of the dealer’s signature.
De Carvalho will provide the Registrar with full and complete disclosure in all future correspondence and on all future applications, regardless of whether or not disclosure has been made previously to the Registrar. For greater clarity, this includes but is not limited to:
a) All Highway Traffic Act offences;
b) The 2010 criminal charges;
c) The October 26, 2010 LAT decision;
d) The 2014 Compensation Fund Claim against 1423326 Ontario Inc. o/a Autoforum; and
e) This Consent Order.
MOTOR VEHICLE DEALERS COMPENSATION FUND
De Carvalho will not apply to be a dealer until his Compensation Fund arrears are paid in full.
De Carvalho agrees to be responsible for repaying the indebtness of his former dealership, 1423326 Ontario Inc. o/a Autoforum, to the Motor Vehicle Dealers Compensation Fund (the “Compensation Fund”), for one claim totalling $37,000, in connection with his past conduct and financial responsibility as the sole director of his former dealership.
De Carvalho agrees to pay the Compensation Fund the total amount of $37,000, as of the date of this Order, according the following repayment schedule:
i. De Carvalho agrees to pay $10,000 within 60 days of the date he is registered as a salesperson;
ii. De Carvalho agrees to pay the remaining $27,000 by June 30, 2025, by making eight payments of $3,375, bi-annually, on or before the following dates:
January 31, 2022
June 30, 2022
January 31, 2023
June 30, 2023
January 31, 2024
June 30, 2024
January 31, 2025
June 30, 2025
iii. De Carvalho agrees that these instalments will be paid with post-dated cheques made payable to the Motor Vehicle Dealers Compensation Fund.
- De Carvalho acknowledges that he will be responsible for any future compensation paid out by the Compensation Fund pursuant to section 42 of the MVDA, that he has been notified of, resulting from claims against any of his previous dealerships. The Registrar acknowledges that there are no current claims for compensation made to the Compensation Fund, and that only one claim has been made to the Compensation Fund with respect to De Carvalho’s former dealerships. De Carvalho agrees that a new repayment arrangement may be determined at that time if there are future payouts.
ACKNOWLEDGMENT AND UNDERTAKING:
De Carvalho acknowledges that the Registrar is relying on the accuracy and completeness of all documents, statements or information provided by him in support of his registration under the Motor Vehicle Dealers Act, 2002.
De Carvalho acknowledges that the documents, information or statements provided to the Registrar in support of registration are true to the best of his knowledge and belief; and that full answers to all questions, inquiries and requests made by the Registrar in connection with the application for registration have been given.
De Carvalho acknowledges 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.
De Carvalho acknowledges that he has had the opportunity to obtain and/or has obtained independent legal advice respecting consent to the terms and conditions contained in this document.
Signed in the City of ____________________ this ____ day of _________________, 2021.
Sergio Manuel De Carvalho (signature)
These Terms and Conditions are accepted by the Registrar, Motor Vehicle Dealers Act, 2002.
Date:
John Carmichael
Registrar, Motor Vehicle Dealers Act, 2002