Licence Appeal Tribunal File Number: 15121/MVDA
In the matter of an appeal from a Notice of Proposal to Refuse to register the appellant as a salesperson under the Motor Vehicle Dealers Act, 2002, S.O. 2002, Chapter 30, Sched. B.
DECISION
VICE-CHAIR: Colin Osterberg
APPEARANCES:
For the Appellant: Courtney Silver, Self-represented
For the Respondent: Zachary Kowalsky, Counsel
HEARD: August 25, 2023
OVERVIEW
1Courtney Silvera, the appellant, seeks to appeal from a Notice of Proposal (“NOP”) to Refuse to register him as a motor vehicle salesperson (“Notice of Proposal”) under the Motor Vehicle Dealers Act, 2002, S.O. 2002, Chapter 30, Sched. B (the "Act”).
2The Notice of Proposal was issued on June 21, 2023 and was sent to the appellant by FedEx courier. The courier delivery was signed for by the appellant on June 22, 2023. The appellant failed to appeal to the Tribunal within 15 days of the NOP and the Final Notice refusing the appellant’s application for registration was issued on July 11, 2023 and delivered to the appellant July 13, 2023, again by FedEx courier.
3Section 9(2) of the Act provides that appeals must be delivered to the Registrar and the Tribunal in writing within 15 days after the NOP is served on the appellant. The Notice of Appeal was filed on August 6, 2023, 45 days after the NOP was served and 27 days after the appeal period expired.
4The appellant brings this motion requesting that the Tribunal extend the time for filing the Notice of Appeal. The Registrar, Motor Vehicle Dealers Act, 2002 (“Registrar”) opposes the motion.
RESULT
5I find that the justice of the case does not warrant an extension of the time for filing the appeal and the appellant’s motion is denied.
ANALYSIS
6Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G gives the Tribunal the discretion to grant an extension of time where there are reasonable grounds for applying for the extension and for granting relief.
7In Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered in making that determination are:
a) the existence of a bona fide intention to appeal within the appeal period;
b) the length of the delay;
c) prejudice to the other party; and
d) the merits of the appeal.
8I have considered the evidence relating to each of these factors as they apply to this case.
Bona fide intention to appeal within the appeal period
9I am not satisfied that the appellant had an intention to appeal within the appeal period.
10The appellant initially testified at the motion hearing that he received the Notice of Proposal by FedEx courier, however he says that was not until July 17, 2023. His evidence on this point was vague and unconvincing. He said the documents he received were from the Tribunal although he later said that the document was the NOP, which was sent to him by the Registrar. In cross-examination, the Registrar put an email to him in which the appellant states that he received the NOP around June 26, 2023 and the appellant agreed that he must have been wrong when he testified about receiving it later.
11The Registrar submitted in evidence documents from FedEx showing that the NOP was delivered and signed for by the appellant on June 22, 2023, and I find that is the date the NOP was delivered to the appellant.
12The appellant says he contacted the Tribunal when he received the NOP and was told that he could have an extension of the time to file his appeal until some time in August since he did not have the filing fee at that time. I do not accept that evidence. The appellant could not say who he spoke with at the Tribunal. Staff at the Tribunal do not have the authority to grant an extension of the deadline for filing an appeal without a motion being brought. The appellant presented no evidence that the he tried to file any documents with the Tribunal before the appeal period ended.
13Significantly, the evidence submitted by the Registrar is that, on July 17, 2023, the appellant contacted the Registrar seeking information about how to appeal the NOP. There is no evidence that the appellant took any action or made any inquiries with respect to appealing the NOP before that time and this is inconsistent with having an intention to appeal within 15 days of having received the NOP almost a month earlier.
14I am not satisfied that the appellant had a bona fide intention to appeal within the 15-day appeal period. This weighs against his motion to extend the time to appeal.
Length of the delay
15As noted above, despite receiving the NOP on June 22, 2023, the appellant did not appeal until 45 days later, 27 days after the appeal period had expired. The length of the delay is significant in the circumstances. It is three times longer than the time provided by the Legislature for appeal and the appellant presented no reasonable excuse for waiting that long.
Prejudice
16I find that, unless there are compelling reasons, the public interest requires that deadlines for appeals be enforced. Where, as here, the appellant’s delay is unreasonable and unjustified, the public interest is prejudiced by allowing the appeal to proceed. The public interest and the administration of the regulatory scheme requires that there be some finality to decisions made by the Registrar. The Legislature has imposed a 15-day period in which a NOP may be appealed, and that period should not be extended without adequate justification.
17I find that an extension of the appeal period in the circumstances would result in prejudice to the Registrar and is contrary to the public interest.
The merits of the appeal
18On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome. It is up to the appellant to demonstrate that he has a reasonable chance of success by offering some clear and specific evidence he would put forward at a hearing to support his position.
19Section 6(1)(a)(ii) of the Act states that the appellant is disentitled to registration if there are reasonable grounds for belief that he will not carry on business in accordance with law and with integrity and honesty having regard to his past conduct. If there are such grounds, then the appeal will fail. Reasonable grounds for belief is a lower standard of proof than a balance of probabilities but requires more than mere suspicion. It will be found to exist where there is an objective basis for the belief which is based on compelling and credible information.
20The NOP is based on conduct of the appellant which the Registrar alleges took place in February 2022. The appellant accepted a $1,500 deposit from a customer toward the purchase of a motor vehicle. There was no written agreement for that transaction and, when the customer requested the return of her deposit, the appellant refused to comply with that request. He continued to refuse to return the deposit despite being ordered to do so by the Registrar and despite being required to do so by section 38 or O. Reg. 333/08 under the Act.
21The appellant did not deny the above allegations. He agrees that he took a deposit for the sale of a vehicle and that he should not have done that. He agrees that he has yet to refund the deposit he was given or any part of it and says he could not do so since he was unable to sell the vehicle because it was not in reasonable mechanical condition.
22While the bar for showing that the appellant’s appeal has merit is not a high one, the onus is on the appellant to demonstrate that his appeal has a real chance of success and, in my view, he has not done so. The appellant agrees that he took a deposit when it was contrary to law to do so and that he has failed to return that deposit despite being required to do so by law and after being instructed to do so by the Registrar. The appellant provided no evidence that he has made any efforts to repay the deposit which was wrongfully received from the consumer or that his other past conduct mitigates the concern of the Registrar about this incident.
23I find that, while it is possible that the Tribunal might find in the appellant’s favour after a hearing, I am not prepared to conclude that he has a reasonable chance of success without clear and specific evidence to support the likelihood of that outcome.
24The appellant has not satisfied me that his appeal has merit, and this factor weighs against extending the appeal period.
Conclusion
25I find that the justice of the case requires that the appellant’s request for an extension be denied. He did not have a bona fide intention to appeal within the appeal period; his delay in filing the appeal is significant and unreasonable and I am not satisfied that there is merit in the appeal.
ORDER
26For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.
Released: August 29, 2023
__________________________
Colin Osterberg
Vice-Chair