Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
IN THE MATTER OF the Motor Vehicle Dealers Act, 2002, S.O. 2002, Chapter 30, Schedule B and Regulations, as amended
B E T W E E N:
SEYEDEH ARABI-HASHEMI
Appellant
- and –
REGISTRAR, MOTOR VEHICLE DEALERS ACT, 2002
Respondent
MOTION DECISION
ADJUDICATOR: Monica Ciriello, Vice-Chair
Held in writing: June 28, 2022
OVERVIEW
1The Appellant, Seyedeh Ghazaleh Arabi-Hashemi also known as Maria Hashemi, appeals a Notice of Proposal (NOP) to revoke registration of the Appellant as a motor vehicle salesperson by the Respondent, the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, Chapter 30, Schedule B (Act) on November 3, 2021.
2The NOP alleges that the past and present conduct of the Appellant, including falsification of documents and/or furnishing false information in relation to the trade of certain vehicles, affords reasonable grounds to believe that the Appellant would not carry-on business in accordance with the law and with honesty and integrity.
3The Respondent’s reasons for revocation have not yet been proven and are denied by the Appellant. A ten-day hearing is scheduled to commence in late 2022 by videoconference.
4The NOP was signed by John Carmichael, the Registrar under the Act.
5On or about February 6, 2022, the Appellant received from the Respondent a preliminary list of the latter’s witnesses who would testify at the hearing. The preliminary list does not specify that Mr. Carmichael may appear as a witness.
6On April 13, 2022, the Appellant filed a Notice of Motion seeking an order from the Tribunal to compel the attendance of Mr. Carmichael as a witness at the hearing.
7The Tribunal received written submissions from counsel for both parties.
8The Tribunal denies the Appellant’s motion. As the reasons will indicate, I am not persuaded by the Appellant that Mr. Carmichael has any evidence that is relevant or necessary to the hearing. Furthermore, I conclude that the scope of the summons request set out by the Appellant is overly broad.
ANALYSIS
The Parties’ Positions
9The Appellant alleges that Mr. Carmichael is a necessary witness at the hearing for the following reasons:
(a) He is the individual who executed the NOP that was issued against the Appellant;
(b) He has requisite knowledge, understanding and appreciation of material facts relevant to this proceeding;
(c) He determined, supported and/or contributed to the Registrar’s decision to:
i. Issue the NOP based on unproven allegations against the Appellant in a separate legal proceeding;
ii. Issue the NOP without a factual and/or evidentiary basis for doing so;
iii. Issue the NOP without providing reasonable information about the allegations contained in the NOP contrary to a section 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S22;
iv. Issue the NOP without consideration of reasonable alternatives; and,
v. Respond in a manner that is unreasonable, disproportionate and/or erroneous at law or in fact given the circumstances.
10The Appellant submits that Mr. Carmichael should be examined as a witness regarding his relevant knowledge of the NOP to ensure that the Tribunal process remains fair and that the Appellant’s rights to be heard and to a fair hearing are protected.
11The draft Summons to Witness prepared by the Appellant requested that Mr. Carmichael bring with him to the hearing:
All original documents including all books, contracts, letters, telegrams, statements, records, bills, notes, securities, vouchers, reports, records, memorandum, notes, computer diskettes, CDs, DVDs, USB keys, any material contained on the hard drive of a computer, email material, facsimile transmissions, tape recordings, video recordings, photographs and copies of same in your custody, possession or power in any way relevant to the matters which are within the scope of this proceeding or have any reference thereto.
12The Respondent submits that there is no need to bring a Notice of Motion as the Tribunal’s power to issue a Summons to Witness should be triggered by filing a request as prescribed in Rule 8 of the Tribunal’s Common Rules of Practice and Procedure. The Respondent requests that the Appellant’s Notice of Motion be dismissed.
13The Appellant relied on the case conference order where the Tribunal declined to issue a Summons to Witness and provided that whether Mr. Carmichael can be compelled to testify is an issue to be addressed in a motion.
Analysis
14I note that the Respondent did not make submissions to challenge the Appellant’s submissions about Mr. Carmichael being a necessary and appropriate witness nor did the Respondent make submissions that the evidence provided by Mr. Carmichael would be irrelevant to the matter before the Tribunal. At a minimum, I take that the Respondent did not challenge this view.
15Nonetheless, the onus is on the Appellant to demonstrate that the evidence of Mr. Carmichael makes him a necessary and appropriate witness. I am not persuaded that the Appellant has met that onus, as I am not satisfied that Mr. Carmichael has relevant evidence to give. In my view, the summons is drafted much too broadly and generally such that it amounts to a fishing expedition.
16I find that the Appellant failed to satisfy me as to the necessity of Mr. Carmichael’s attendance and failed to provide any personal knowledge or examples of documents that only Mr. Carmichael could produce or testify to.
17The Appellant submits that her case is distinct from 9608 and 9798 v. Registrar of Alcohol and Gaming1. I disagree. The Appellant’s submissions concerning 9608 and 9798 demonstrate her speculation that Mr. Carmichael might have evidence relevant to the hearing.
18I find the decision in 9608 and 9798 to be relevant and persuasive here. A proceeding before the Tribunal is in the nature of a de novo procedure. The Tribunal is required to make an independent decision and it is not required to show deference to the decision of the Registrar, Mr. Carmichael, nor does the Tribunal have the authority or function to perform a judicial review of Mr. Carmichael’s conduct. At a hearing de novo, it is up the Respondent to marshal the evidence and argue at the hearing that it has proven one or more grounds of the NOP, and to request the Tribunal to make a certain decision. Similarly, it is open to the Appellant, whether she chooses to call her own evidence or not, to argue at the hearing that the Respondent has not met its burden of proof or that the evidence does not warrant revocation of her registration.
19In short, the Appellant does not satisfy me that Mr. Carmichael has any relevant evidence to be provided on the issue before the Tribunal.
20Lastly, the proposed scope of the Summons to Witness is overly broad and, contrary to the Appellant’s submission, is consistent with a fishing expedition, which may lead to discovering something that may help the Appellant’s case in this appeal. The summons as drafted supports my earlier finding that the Appellant is speculating, and I find this to be an improper basis to compel Mr. Carmichael to testify.
21The Appellant has not satisfied me that the Tribunal should compel the attendance of Mr. Carmichael as a witness at the hearing. This is based on the broad nature of the Summons to Witness coupled with the finding that the evidence sought by Mr. Carmichael is not relevant to the Tribunal’s independent determination of the appeal.
ORDER
22As a result of the above, the Appellant’s motion to compel Mr. Carmichael to testify is denied.
LICENCE APPEAL TRIBUNAL
Monica Ciriello, Vice Chair
Released: June 28, 2022