An appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B. to Revoke Registration
Between:
Seyedeh Ghazaleh Arabi-Hashemi
Appellant
and
Registrar, Motor Vehicles Dealers Act, 2002
Respondent
MOTION DECISION AND ORDER
Adjudicator: Kevin Lundy, Member
Appearances:
For the Appellant: Pradeep Chand, Counsel Carly Waisglass, Observer Tiyam Shiribabadi, Observer
For the Respondent: Vlad Bosis, Counsel
Heard by Teleconference: September 6, 2022
MOTION DECISION AND ORDER
OVERVIEW
1On November 3, 2021, the Registrar, Motor Vehicle Dealers Act, 2002 (the ‘respondent’) issued a Notice of Proposal to Revoke Registration of Seyedeh Ghazaleh Arabi-Hashemi (the ‘appellant’) as a motor vehicle salesperson pursuant to section 6(1)(a)(ii) of the Motor Vehicle Dealers Act, 2002 (the ‘Act’), alleging that the past and present conduct of the appellant afforded reasonable grounds to believe that she would not carry on business in accordance with the law and with honesty and integrity. On November 11, 2021, the appellant appealed the Notice of Proposal to the Licence Appeal Tribunal (the ‘Tribunal’).
2The appellant brought the present motion to compel the respondent to disclose various documents forthwith pursuant to Rule 9.3 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure Version I (October 2, 2017) (the ‘Rules’). The appellant also requested an order for the respondent to pay the costs of the motion.
ISSUE TO BE DETERMINED
3The issues to be determined are:
(a) Should the respondent be ordered to provide further disclosure to the appellant forthwith?
(b) Should the respondent pay the costs of the motion?
RESULT
4For the reasons set out below, the motion is denied. As I find that the motion is premature, no costs are ordered.
THE LAW
5Rule 9 of the Rules governs the parties’ duty to provide disclosure prior to the hearing and the possible consequences of non-compliance:
9.1 PRODUCTION OF DOCUMENTS – GENERAL
The Tribunal may at any stage in a proceeding, including prior to a case conference, order any party to provide such further particulars or disclosure as the Tribunal considers necessary for a full and satisfactory understanding of the issues in the proceeding.
9.2 DISCLOSURE OF DOCUMENTS
A party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party:
(a) Disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing;
(b) Disclose a list of witnesses whom the party may call to give evidence at the hearing and a brief description of each witness’ anticipated testimony; and
(c) Serve a copy of the documents, numbered consecutively, on the other parties.
9.3 PRODUCTION OF DOCUMENTS
A party may seek an order from the Tribunal at any stage of the proceeding ordering a party to:
(a) Disclose the existence of every document and anything else the party intends to present as evidence at the hearing;
(b) Disclose a list of witnesses whom the party may call to give evidence at the hearing and a brief description of each witness’ intended testimony;
(c) Serve any other party at least 10 days before the hearing, or as otherwise ordered by the Tribunal, copies of all documents that the party will produce or present as evidence at the hearing;
(d) Make available for inspection anything, subject to conditions established by the Tribunal, that the party will present as evidence at the hearing; or
(e) Disclose any document or thing the Tribunal considers relevant to the issues in dispute.
9.4 FAILURE TO COMPLY WITH DISCLOSURE RULES
If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.
EVIDENCE AND ANALYSIS
6The parties agreed that before the first case conference held on January 12, 2022, the respondent disclosed an initial book of documents to the appellant. The appellant confirmed that this disclosure was received on or about December 7, 2021. On December 24, 2021, the appellant requested outstanding disclosure from the respondent. Further requests were made on January 26, January 31, February 1, February 10 and March 10, 2022.
7Shortly after the March 10, 2022 request, the respondent disclosed a second book of documents to the appellant. The respondent disclosed no further items following disclosure of this second volume of documents. There was also no dispute that the appellant made no further requests for disclosure between the date that the second book of documents was received and June 15, 2022, the date that appellant filed the present motion.
8On March 9, 2022, the Tribunal issued a case conference order scheduling a ten day hearing commencing on November 21, 2022 with respect to the merits of the appeal. In the same order, the Tribunal issued the following deadlines for disclosure:
The respondent shall serve on the appellant, and file with the Tribunal, any documents he intends to rely upon at the hearing, including identification of witnesses and witness will say statements, on or before October 21, 2022.
The appellant shall serve on the respondent, and file with the Tribunal, any documents [she] intends to rely upon at the hearing, including identification of witnesses and witness will say statements, on or before November 4, 2022.
9At the hearing of this motion, the appellant took the position that the following outstanding disclosure is necessary and relevant for a full and satisfactory understanding of the issues in the herein proceeding:
i. Records of all communications between Chris Burke and Yeraldin Valencia;
ii. Records of all communications between Chris Burke and Douglas Rodriguez;
iii. A copy of the “Midtown Discipline Brief”;
iv. A copy of the original complaint made on January 11, 2021, and the identity of the complainant;
v. A copy of the PowerPoint presentation provided to Chris Burke by Patrick Huibers on or about May 12, 2021;
vi. Records of all communications between Chris Burke and Honda Financial Services representatives (also known as “Honda Canada Inc. representatives”);
vii. Records of the original conversation between Chris Burke and Kelly DeGurse, and any subsequent undisclosed communication(s);
viii. Records of all communications between Chris Burke and Terry Rafih;
ix. A copy of the Francy Johana Neva Sanabria file that was provided to Chris Burke on June 18, 2021;
x. Records pertaining to other vehicle transactions, which took place at Midtown Honda, involving employment letters and/or credit applications under investigation;
xi. Records of all summaries and reports provided to and by Chris Burke, Midtown Honda representatives, and/or Honda Financial Services representatives;
xii. Records of all communications and all meeting notes involving Chris Burke and Midtown Honda representatives;
xiii. Records of all meetings between Chris Burke and Midtown Honda representatives;
xiv. A record of the “names showing on the ownership” as mentioned in Scott Story’s email correspondence dated July 26, 2021;
xv. Audio statement recordings and notes from all phone calls that took place between Chris Burke and Ziya Yildrin; and,
xvi. Images of the file room at Midtown Honda.
10The respondent’s counsel explained that the respondent had not refused to disclose any of the above documents, but noted that a thorough review of each of the above requests had not been completed. Barring any unforeseen issues with the release of a specific item or difficulties in obtaining a document not in the respondent’s possession, the above documents would likely be disclosed by September 30, 2022, well ahead of the deadline set by the Tribunal in the case conference order issued March 9, 2022.
11Although the appellant’s counsel confirmed that he had advocated during the February 16, 2022 case conference for a shorter deadline for disclosure, his submissions were not reflected in the consequential order. However, the confidential nature of case conferences preclude detailed overviews of the parties’ submissions or recordings of the proceedings. The appellant did not reference any pressing urgency to the disclosure that would render the deadlines in that order unreasonable other than a general statement that more time will be required to review the materials. The appellant also cited no prejudice to her case beyond the general risk to her livelihood and reputation posed by the Notice of Proposal itself.
12While the appellant’s interest in conducting a thorough review of all relevant evidence is both understandable and commendable, I ultimately agree with the respondent that the present motion is premature. Should the respondent fail to disclose documents pursuant to the deadlines in the order issued on March 9, 2022 or the appellant takes the position that any of the documents disclosed have been overly redacted, the appellant is free to bring a motion at that time.
13While the appellant did not request costs during oral submissions at this motion hearing, in the written schedule to the motion, she requested that the costs of the motion be payable by the respondent. Rule 19.1 states that “where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.” As I find nothing unreasonable, frivolous, vexatious or in bad faith in the respondent not disclosing the requested materials before the date ordered by the Tribunal, I do not find that costs are warranted.
ORDER
14For the reasons set out above, the appellant’s motion is denied. No costs are ordered.
LICENCE APPEAL TRIBUNAL
Kevin Lundy
Member
RELEASED: September 8, 2022