RECONSIDERATION DECISION
Before: Colin Osterberg
Licence Appeal Tribunal File Number: 14410/MVDA
Case Name: Beashema Veerasingam v. Registrar, Motor Vehicle Dealers Act, 2002
Written Submissions by:
For the Appellant: Pradeep Chand, Counsel Carly Waisglass, Counsel
For the Respondent: Michael Rusek, Counsel
OVERVIEW
1On August 29, 2023, the appellant requested reconsideration of the Tribunal’s decision dated August 8, 2023 (“decision”).
2In the decision, the Tribunal found that the respondent Registrar had satisfied its burden of proving that the past conduct of the appellant affords reasonable grounds for belief that he will not carry on business as a motor vehicle salesperson in accordance with law and with integrity and honesty, and directed the Registrar to carry out its proposal to refuse the registration of the appellant as a motor vehicle salesperson.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I, (October 2, 2017) as amended (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The appellant seeks reconsideration under Rule 18.2(a) and (b). The appellant alleges that in its decision the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The appellant also argues that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made. The respondent denies that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness and denies that there were any errors of law of fact made such that the Tribunal would likely have reached a different result had the error not been made.
5The appellant requests that the decision be canceled or, in the alternative, that a rehearing of all or part of the appeal be ordered.
RESULT
6The appellant has failed to establish that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness. The appellant has failed to establish that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made. The appellant’s request for reconsideration is dismissed and the decision is confirmed.
PROCEDURAL ISSUES
7The respondent and the appellant failed to comply with the direction of the Tribunal setting out the page limits for submissions. The respondent’s submissions were to be limited to five double-spaced pages and the appellant’s reply submissions were to be limited to three double-spaced pages. Instead, the respondent submitted eight single-spaced pages and the appellant’s reply was six pages double-spaced. Neither party sought nor received the Tribunal’s consent for a higher page limit.
8In order to give effect to the order made by the Tribunal, I have considered pages 1-3 of the respondent’s submissions and pages 1-3 of the appellant’s reply submissions, and I have given no weight to the remaining pages.
ANALYSIS
9The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.
The appellant has failed to establish that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
10The appellant raised four specific issues which it alleges amount to a violation of his right to procedural fairness. Those are:
a. The hearing was conducted without the appellant having any materials he intended to rely on before him or the adjudicator;
b. The hearing was conducted without the appellant having some or all the witnesses available to attend the hearing;
c. The hearing constituted a re-litigation of issues involving a former co-worker which were settled previously in a separate civil proceeding; and
d. The Tribunal relied on conduct not alleged in the NOP.
Proceeding without the appellant’s documents and witnesses
11The appellant alleges that it was procedurally unfair to proceed with the hearing despite the fact that the appellant had not served and filed the documents he intended to rely on, and he had not arranged for the attendance of witnesses which he intended to rely on. At the commencement of the hearing, the appellant argued that the hearing should be adjourned because he thought the matter was going to settle and therefore did not submit his documents or arrange for the attendance of witnesses.
12The reasons for refusing the appellant’s adjournment request are set out in paragraphs 14 and 15 of the decision. I am not satisfied that the Tribunal acted in a way that is beyond its jurisdiction or that its denial of the adjournment request breached the appellant’s right to procedural fairness. As the decision sets out, the appellant had notice of the hearing and had been ordered to produce his documents and witness list in advance.
13I find the fact that the appellant and his representative chose not to serve and file documents or to arrange for the attendance of witnesses at the hearing, does not amount to a breach of his right to procedural fairness.
Re-litigation of issues
14The appellant alleges that, by considering the facts surrounding his conduct involving a co-worker, which conduct had been the subject of a civil action that had been settled, the Tribunal improperly re-litigated those issues and violated the “double jeopardy principle”, thereby acting outside its jurisdiction and violating the rules of procedural fairness.
15There is no merit to the appellant’s allegations in this regard.
16First, since the civil matter was settled, there was no previous litigation in which there were judicial findings made and therefore no “re-litigation” with respect to such findings. Second, there is no basis in law for the appellant’s argument that a licensee’s conduct cannot be the basis for a Notice of Proposal to Refuse (“NOP”) if it has been the subject matter of litigation in another tribunal or in court.
17I find that the Tribunal’s consideration of this conduct is not a breach of its jurisdiction and is not a breach of the appellant’s right to procedural fairness.
Reliance on conduct not alleged in the NOP
18In paragraphs 78-83, the Tribunal found that the appellant was dishonest in attempting to cover-up or downplay the conduct alleged in the NOP by telling false stories to the complainants, his employer, the police, and the Tribunal. These attempts were not specifically set out in the NOP and the appellant alleged that the Tribunal should not rely on them in making its decision.
19The Tribunal’s reasons for considering these allegations are set out in paragraphs 78-83 of the decision. The Tribunal found that the appellant had sufficient notice of the allegations and had not objected to them being raised until the evidentiary portion of the hearing was complete. The appellant only raised this as an issue in its written submissions. The appellant has not established that the Tribunal made an error on this issue.
20Further, in paragraph 86 of the decision, the Tribunal made it clear that, even if it had not considered the conduct of attempting to avoid the consequences of his conduct, it would still have found that the Registrar had established that the appellant’s past conduct affords reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty.
21I find no error in the decision in this regard and find that the appellant has failed to establish that there was a breach of procedural fairness on this basis.
Conclusion regarding jurisdiction and procedural fairness
22I find that the appellant has failed to establish grounds for reconsideration pursuant to Rule 18.2(a). He has not established that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.
The appellant has failed to establish an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
23The appellant raised three specific issues which he alleges amount to errors of law or fact. Those are:
a. There was insufficient evidence to support factual findings made and inferences drawn;
b. The Tribunal failed to consider evidence that the appellant accepted responsibility for his actions; and
c. The Tribunal made contradictory findings with respect to whether evidence was presented which corroborated the appellant’s allegation that his Instagram account had been hacked.
Unsupported factual findings and inferences
24Rather than setting out the conclusions and inferences alleged to have been in error, the appellant lists 10 paragraph numbers of the decision and asserts that they were unsupported by evidence or analysis. Simply pointing to paragraphs which the appellant says contain errors is not sufficient to satisfy his burden of establishing an error of law or fact. Under Rule 18.2(b), the appellant is required to set out what the error is and how that error would have resulted in a different result had the error not been made. The appellant has failed to do that, and I find that this ground of reconsideration is not proven.
25In any event, having reviewed the paragraphs in question, I see no errors of fact or law and am not satisfied that the appellant has established entitlement to reconsideration on this ground.
Failure to consider appellant’s acceptance of responsibility
26The appellant alleges that the Tribunal failed to consider that the appellant accepted responsibility for his conduct by accepting his termination of employment and by entering into a settlement of a complainant’s civil action against him.
27The appellant does not make clear how accepting the termination of his employment which resulted from the conduct alleged in the NOP amounts to accepting responsibility for that conduct. In any event, this was discussed at paragraph 49 of the decision. There is no basis for the appellant’s suggestion that the Tribunal did not consider this in making its decision. There is no basis to conclude that the decision would have been different if the Tribunal drew a different inference from this fact.
Contradictory findings
28The appellant argues that the Tribunal made contradictory findings with respect to whether evidence was presented which corroborated the appellant’s allegation that his Instagram account had been hacked. He says this contradiction is contained in paragraphs 63-65 of the decision.
29I find that paragraphs 63-65 do not contain the inconsistency alleged by the appellant. Paragraph 63 states that the appellant presented no evidence to corroborate the allegation that the appellant’s Instagram account had been hacked. Paragraphs 64 and 65 discuss Durham Regional Police files in which the appellant makes various allegations that he was being harassed, but which do not mention any allegation that the Instagram account had been hacked and do not note any evidence that it had been hacked.
30I find that the appellant has failed to identify an error of fact on this issue.
Conclusion regarding error of fact or law
31I find that the appellant has failed to establish grounds for reconsideration under Rule 18.2(b). He has not established that the Tribunal made an error of law or fact such that it would likely have reached a different result had the error not been made.
CONCLUSION & ORDER
32The appellant’s request for reconsideration is dismissed and the decision is confirmed.
Colin Osterberg
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: November 2, 2023