Appeal from the Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002 to Refuse and Revoke Registrations
Between:
Clifford Ernest Pilon, Easywheels.ca Inc., Main Street Auto Importers Ltd. o/a Gold Fleet Subaru & Main Street Auto Importers Ltd. o/a Easywheels.ca
Appellants
and
Registrar, Motor Vehicles Dealers Act, 2002
Respondent
RECONSIDERATION DECISION
ADJUDICATOR: Kevin Lundy, Member
Written submissions by:
For the Appellant: Justin Jakubiak, Counsel
For the Respondent: Jillian Siskind, Counsel
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1In its decision dated January 16, 2023, the Tribunal held that the respondent demonstrated that the past conduct of the appellant, Clifford Ernest Pilon (‘C.E.P.’), affords reasonable grounds for belief that the appellants will not carry on business in accordance with the law and with integrity and honesty according to the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30 (the ‘Act’). The appeal was dismissed and the Tribunal directed the Registrar to carry out the Notice of Proposal to refuse the registration of Easywheels.ca Inc. as a motor vehicle dealer; to revoke the registrations of Main Street Auto Importers Ltd. o/a Gold Fleet Subaru and Main Street Auto Importers Ltd. o/a Easywheels.ca as motor vehicle dealers; and to revoke the registration of C.E.P. as a motor vehicle salesperson under the Act. The appellants requested that the Tribunal reconsider its decision.
B. ISSUE
2The issue to be decided on this reconsideration is whether the appellants have established that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different result had the error not been made.
C. RESULT
3For the reasons given below, the appellants’ request for reconsideration is denied.
D. ANALYSIS
4A request for reconsideration will not be granted unless one or more of the criteria listed 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), are established. The criterion relied on by the appellant is that 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 according to Rule 18.2(b).
5A reconsideration is not an opportunity to re-argue issues canvassed at the hearing. The onus is on the moving party to identify a significant legal or factual mistake and to show that, if the mistake had not been made, the Tribunal would likely have reached a different result.
6The appellants’ submissions allege six errors of fact which they argue justify reconsideration. These are referred to in the appellants’ submissions by the numbered paragraphs in the order and I will use the same designation in these reasons.
Paragraph 39
7By way of background, Belinda Brown (‘B.B.’) is the romantic partner or companion of C.E.P. At all material times, B.B. worked at Gold Fleet Subaru (‘Gold Fleet’) as its business manager. It is uncontested that B.B. forged signatures on bills of sales on behalf of sales staff at Gold Fleet on at least thirty-nine occasions and, in one instance, she forged the signature of a consumer. As a result, the Registrar issued a Notice of Complaint and referred B.B. for discipline proceedings
8Gold Fleet terminated B.B.’s employment on May 15, 2022, but re-hired her shortly thereafter in July 2022. In its decision, the Tribunal found that although OMVIC allowed B.B. to continue working in the industry, she was not permitted to work for any dealership owned by C.E.P. The Tribunal made two references that suggest it considered B.B.’s re-hiring at Gold Fleet in July 2022 to be a contravention of a restriction on her registration.
9This was a factual mistake on the part of the Tribunal. The Registrar made an offer to B.B. that she would be granted registration on the condition that she not work as a salesperson for a dealership owned or controlled by C.E.P. B.B. refused the Registrar’s offer and, since no such conditions were agreed upon, and none were imposed upon her, she was not actually bound by them. Gold Fleet also terminated B.B.’s contract on its own volition, rather than further to an order, direction or prohibition from OMVIC regarding her continued employability. B.B. was not registered as a salesperson when she returned to work for C.E.P. at Gold Fleet.
Paragraphs 42, 64, 72 and 73
10As OMVIC ultimately never imposed any employment restriction on B.B., she was not at any time prohibited from working for one of C.E.P.’s dealers. OMVIC would only prohibit her to work for Gold Fleet in a registered capacity. As a result, the following statement at paragraph 42 of the order is factually incorrect: “… although she and C.E.P. were both aware of the employment restriction imposed on her registration, they have flouted this prohibition for the sake of convenience.”
11Similarly, as there was no order or direction with respect to B.B.’s employment other than as a registered salesperson, C.E.P. did not disregard a direction of the Registrar “by permitting B.B. to work for his dealership…” Accordingly, the conclusion at paragraph 64 of the decision lacked a sufficient factual basis: “… suggesting improvements will be implemented only if they represent minimal disruption to C.E.P.’s plan for his companies.” For the same reasons, at the time of the hearing, C.E.P. was not continuing “to allow B.B. to work for his dealership after at best a perfunctory gap in open defiance of the terms imposed upon her registration.”
12Lastly, a reference at paragraph 73 to an “order of the Registrar” with respect to potential terms and conditions was based upon a factual error since there was no such order. As a result, C.E.P.’s “laissez-faire approach…” was not in response to an order of the Registrar.
13The appellants take the position that but for the above errors relating to the circumstances of B.B.’s return to work at Gold Fleet, the Tribunal would have arrived at a different result. However, this erroneous factual finding was merely one of several factors considered but not determinative of the result.
14The references to C.E.P.’s decision to re-hire B.B. so soon after her termination were made in passing as additional evidence of his disregard for the seriousness of the forged signatures. As the respondent noted in its submissions for this reconsideration request, B.B.’s new position at Gold Fleet was not minor as she had been re-hired to train the new business manager. It was therefore reasonable for the Tribunal to consider and comment on the judgement exercised in C.E.P.’s decision to re-hire B.B., a former manager who had been fired for cause by Gold Fleet and disciplined by OMVIC for forging multiple bills of sale.
15Although the Tribunal’s references to OMVIC’s restrictions on Brown’s registration may have been mischaracterized, it was reasonable for the Tribunal to focus on C.E.P.’s reckless disregard of any concerns that had been raised by the Registrar, and of B.B.’s numerous violations of the Act by forging signatures. The Tribunal made many references to a pattern of conduct demonstrated by C.E.P. in acting only for his own convenience and his decision to re-hire B.B. to train her successor as business manager simply added one further consideration. Even if the comments identified by the appellants as being erroneous were removed from the decision, the decision itself to refuse and revoke their registrations remains well-supported by the facts. The factual errors were neither central nor determinative to the Tribunal’s overall analysis of the appellants’ fitness for registration.
16The analysis of whether C.E.P. would only implement suggested improvements “if they represent minimal disruption to C.E.P.’s plan for his companies” is also not dependent on the factual errors. As the respondent corrected stated, if C.E.P. disregarded the Registrar’s suggestion that B.B. not work for him, how could he be expected to follow other terms and conditions with which that he might not agree?
17The Tribunal considered the totality of the evidence relating to the work environment at Gold Fleet. The evidence of the witnesses at the hearing demonstrated that there was no formalized training or known procedures within the dealership, which, among other factors, led to a scenario where signatures were forged and undetected for a significant period.
18The Tribunal’s observations about C.E.P.’s apparent disregard for the concerns raised by the Registrar in relation to B.B.’s employment at Gold Fleet were therefore fair comments based on the facts, despite the inaccurate references to an order issued by OMVIC. Further, the facts relied upon in the decision, the majority of which were admitted by the appellants, aside from the comments relating to B.B.’s registration status, provided more than enough reason to believe that the appellants would not act in accordance with honesty and integrity, as is required by section 6(1)(a)(ii) of the Act.
19To act with honesty and integrity would necessarily require C.E.P. to ensure his staff were properly trained and overseen by the management; to foster an environment which would not allow for a pattern of forging bills of sale to go undetected for many months; to not provide false statements on ten applications for renewal with OMVIC; and to not re-hire B.B. with only a slightly different role in the dealership just after the Registrar communicated her objections to B.B. being registered to work at the dealerships.
20No determinations were based solely on B.B.’s registration status. The comments on this issue were not determinative of the issue and there was sufficient evidence to support the Tribunal’s findings had these errors of fact not occurred. The Tribunal would have reached the same result regardless of this issue.
21As well, the basis for the Notice of Proposal and the Tribunal’s order to revoke the appellants’ registrations was based upon two main categories:
a. Falsified signatures on 39 bills of sale within Gold Fleet by B.B. and the operating practices under which the forgeries occurred; and
b. False information submitted to the Registrar by C.E.P. on ten separate applications for the biannual registration renewals for each of the appellants.
22Even if the Tribunal had found that appropriate conditions may be crafted to protect the public with respect to the former issue, the detailed analysis of the evidence relating to the latter issue precluded terms and conditions.
23At the hearing, C.E.P. repeatedly admitted to providing false information on the applications for renewal when he failed to report a past charge and subsequent conviction for all applications. In addition to these admissions, the Tribunal found that the renewal forms filled out by C.E.P. were worded clearly, that he understood the importance of application forms to OMVIC’s consumer protection mandate and his unique access, as a Director of OMVIC’s board, to OMVIC staff to speak to if he had any questions about the meaning of the questions or how to fill in the applications. The Tribunal relied on all of these facts when it found that it was more likely than not that C.E.P.’s false statements were made knowingly and that his registration should be revoked pursuant to s. 6(1)(a)(iii) of the Act. This analysis was not dependent upon the erroneous inclusion of the factual errors in paragraphs 72 and 73 as highlighted by the appellants.
Paragraph 70
24With respect to an entirely separate issue, the appellant alleges that the assessment that C.E.P. was cooperative and forthcoming did not precede the discovery of additional forgeries by investigators N.P. and M.D. This assessment was made in the Investigation Summary dated February 13, 2021, which was drafted after the interview of Craig Propp (‘C.P.’), completed on February 1, 2021. Although the appellants are correct that the additional forgeries were disclosed and discussed by C.P. in his meeting with the investigators prior to N.D.’s interview with C.E.P., this paragraph primarily related to N.D.’s testimony that C.E.P. chose not to volunteer his knowledge of the forgeries of salespersons’ signatures despite his awareness of them. This lack of disclosure served as the basis for N.D.’s stated reconsideration of the degree to which C.E.P. had been cooperative and forthcoming as a whole, not the implied sequence of events.
25I am not satisfied that the result would likely have been different had this minor error with respect to the timeline not been made.
E. Conclusion
26I find that the appellants have not demonstrated that the Tribunal would have reached a different result had the errors alleged by the appellants not been made.
F. ORDER
27For the reasons given above, I find that the appellants have not established the grounds for reconsideration as set out in Rule 18.2. The request is therefore dismissed.
LICENCE APPEAL TRIBUNAL
___________________________
Kevin Lundy, Member
Released: February 27, 2023