An appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B. – to Revoke Registrations
Between:
Chantal Labrecque and Ethan Motors Incorporated
Appellants
and
Registrar, Motor Vehicle Dealers Act, 2002
Respondent
CONSENT ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant:
Michael Burokas
For the Respondent:
Husein Panju
Heard in writing:
Overview
1Chantal Labrecque and Ethan Motors Incorporated (the “appellants”) have appealed a Notice of Proposal issued by the Registrar, Motor Vehicle Dealers Act, 2002 (the “respondent”) to revoke registrations, dated August 27, 2021.
2The parties have advised the Tribunal that they were able to agree upon a settlement of all outstanding issues in this matter and have requested that the terms of settlement be incorporated into a Consent Order disposing of this proceeding.
3The parties apply under s. 6(2) of the Act and s. 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 for an order of the Tribunal to dispose of this matter without 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 the 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 this matter is vacated.
7This Tribunal file is now closed.
Licence Appeal Tribunal
___________________________
D. Gregory Flude, Vice-Chair
Released: June 21, 2022
SCHEDULE “A”
TO: Licence Appeal Tribunal Tribunals Ontario General Services 15 Grosvenor Street, Ground Floor Toronto, ON M7A 2G6
FROM: The Registrar Motor Vehicle Dealers Act, 2002 Ontario Motor Vehicle Industry Council 65 Overlea Blvd., Suite 300 Toronto, ON M4H 1P1
AND FROM: Ethan Motors Incorporated 588 Yonge Street Barrie, ON L4N 4E4
AND FROM: Chantale Laura Labrecque c/o Ethan Motors Incorporated 588 Yonge Street Barrie, ON L4N 4E4
Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002, Ethan Motors Incorporated (“Ethan Motors”) and Chantale Laura Labrecque (“Labrecque” (jointly, “the Appellants”) 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:
GENERALLY
The Appellants acknowledge that they have each reviewed the Registrar’s Notice of Proposal Revoke Registrations (dated August 27, 2021) as well as the accompanying Further and Other Particulars (dated November 12, 2021 and November 30, 2021), collectively, the “Notice of Proposal”.
The Appellants acknowledge that they have each had the opportunity to obtain and/or have obtained independent legal advice respecting this document.
REGISTRATION OF ETHAN MOTORS
- Ethan Motors consents to the Registrar carrying out the Notice of Proposal (as it applies to Ethan Motors) on July 20, 2022.
REGISTRATION OF LABRECQUE
- Labrecque consents to the Registrar carrying out the Notice of Proposal (as it applies to Labrecque) on July 20, 2022.
GENERAL TERMS AND CONDITIONS FOR ETHAN MOTORS
Ethan Motors will not permit the involvement of ROBERT PEREIRA 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, Ethan Motors will not permit the involvement of ROBERT PEREIRA in the repair or service of motor vehicles.
Ethan Motors will not permit involvement of ROBERT PEREIRA 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.
Ethan Motors confirms that ROBERT PEREIRA will not be financing the dealership, either directly or indirectly. Ethan Motors will make reasonable efforts to determine the source of financing received to ensure compliance with these Terms and Conditions.
Ethan Motors will not trade in motor vehicles with ROBERT PEREIRA.
Ethan Motors will 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. Ethan Motors further agrees to read all correspondence and bulletins from OMVIC as released.
Ethan Motors will 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.
Ethan Motors will 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.
Ethan Motors further agrees to notify the Registrar of any change in partners or owner, person(s) in charge, and signing authority for the dealership. Ethan Motors further agrees not to effect such changes without first obtaining the Registrar's prior approval, in writing.
Ethan Motors 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. Ethan Motors further acknowledges that this includes attendance at auction on behalf of Ethan Motors 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.
Ethan Motors will ensure that all personnel, agents, assignees or anyone acting on behalf of Ethan Motors are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.
Ethan Motors will ensure that all personnel, agents, assignees or anyone acting on behalf of Ethan Motors to trade motor vehicles will be registered as a salesperson to Ethan Motors.
Ethan Motors will 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.
PREMISES
Ethan Motors will operate exclusively from the location approved by the Registrar and will not invite the public to trade at a place other that the approved location, pursuant to section 28 of Ontario Regulation 333/08.
Ethan Motors agrees not to 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. Ethan Motors will then provide the Registrar with notice in writing, within 5 days of any such change in the location.
Ethan Motors will ensure that all advertisements placed by or on behalf of Ethan Motors 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.
BOOKS AND RECORDS
Ethan Motors will maintain all books and records at Ethan Motors's registered premises in accordance with the MVDA and pursuant to section 52 through to and including section 60 of Ontario Regulation 333/08.
Ethan Motors will 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").
Ethan Motors will ensure that all vehicles purchased will be registered within 6 days in accordance with section 11 of the Highway Traffic Act ("HTA").
Ethan Motors will undertake to ensure that all vehicles sold will be registered in the name of the purchaser in the records of the MTO before releasing the vehicle to the purchaser.
Ethan Motors will 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. Ethan Motors further agrees to make all reasonable efforts to reconstitute the lost, stolen or damaged records.
Ethan Motors will 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. Ethan Motors undertakes to provide the receipt to OMVIC when requested by the Registrar.
DISCLOSURE
Ethan Motors will 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 section 4 of Ontario Regulation 332/08, where applicable.
Ethan Motors will disclose all material facts about the motor vehicles for purchase or lease to its customers. Ethan Motors further agrees that notwithstanding whether or not Ethan Motors considers a fact to be material, Ethan Motors will comply with the disclosure obligation. Ethan Motors further agrees to disclose all material facts on the Bill of Sale, in writing. Ethan Motors 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, Ethan Motors further agrees to disclose as much detail as possible regarding the nature and severity of the damage. Ethan Motors undertakes to research the history of all the motor vehicles under trade to ensure all material facts are disclosed.
Ethan Motors agrees not to represent any charges or fees on a Bill 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.
Ethan Motors will comply with all requests made by the Registrar in relation to any failure to comply with disclosure obligations. Further, where the Registrar considers any information to be a material fact, Ethan Motors will provide compensation to a purchaser concerning a motor vehicle under trade.
Ethan Motors agrees to accept full responsibility for the quality of any repairs or alterations to a motor vehicle completed by Ethan Motors's personnel, agents, assignees, affiliated repair facilities or anyone acting on behalf of Ethan Motors.
FINANCIAL RESPONSIBILITY
Ethan Motors agrees not to receive any new private sources of financing without the prior approval of the Registrar. This does not apply where Ethan Motors 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.
Ethan Motors will maintain bank accounts that are compliant with section 59 of Ontario Regulation 333/08.
Ethan Motors will maintain a trust account, in respect of any deposits made in excess of $10,000.00 or any funds in relation to motor vehicles sold on consignment on the behalf of a consumer, pursuant to section 58 of Ontario Regulation 333/08. Ethan Motors agrees to provide written confirmation to the Registrar, within five days, that a trust account has been established in Ethan Motors's business name at its financial/banking institution.
Ethan Motors will ensure that bank account transactions relate exclusively to the operation or financing of the business. Ethan Motors agrees to notify the Registrar of any change in any business banking accounts.
Ethan Motors will ensure that any consumer claim made to the Motor Vehicle Dealers Compensation Fund (the "Fund") in relation to Ethan Motors, and the Fund determines entitlement to compensation of the claim pursuant to section 42 of Ontario Regulation 338/08; that Ethan Motors will reimburse the Fund for any monies paid in relation to the claim.