COURT OF APPEAL FOR ONTARIO
DATE:20010212
DOCKET: C34896
ABELLA, BORINS and SHARPE JJ.A.
BETWEEN:
HASSAN KASSEM HASSAN
Respondent
Aviva R. Harari and
A. Michael Rothe
For the appellant
- and -
REGISTRAR OF MOTOR VEHICLES (sic)
REGISTRAR, MOTOR VEHICLE DEALERS ACT
No one appearing
For the respondent
Appellant
HEARD: February 5, 2001
On appeal from the judgment of the Divisional Court (Justices James Carnwath and Gordon Sedgwick; Justice Nicholson McRae dissenting) dated June 9th, 2000.
ABELLA J.A.
[1] The issue in this appeal is the process to be followed by the Registrar, Motor Vehicles Dealers Act, when an application is made under that Act for registration following a prior rejection, or the suspension or revocation of a registration by the Registrar.
[2] The Act is public protection legislation regulating motor vehicle dealers and salespersons. The Registrar is mandated by the Act to administer and enforce it.
[3] An application for registration in such circumstances is made pursuant to s. 8 of the Motor Vehicle Dealers Act, R.S.O. 1990, c. M. 42:
- A further application for registration may be made upon new or other evidence or where it is clear that material circumstances have changed.
[4] The respondent, who was previously registered under the Act, had his registration revoked in September, 1997 after a hearing by the Commercial Registration Appeal Tribunal. He did not appeal this decision. On January 8, 1999, the respondent was convicted on three counts of breaching the Act and on one count under the Business Practices Act for odometer tampering.
[5] In November, 1999, the respondent reapplied for registration. The Registrar refused to process the application on the grounds that s. 8 of the Act had not been complied with since no information was provided establishing new or other evidence or a change in material circumstances. The respondent was informed of this decision by letter dated January 10, 2000.
[6] On February 1, 2000, the Registrar received another application for registration from the respondent accompanied by a letter from his lawyer. Again, no new evidence or no material change in circumstances were referred to in the application. The Registrar consequently refused to process the application. Counsel to the Registrar consequently sent the following letter to the respondent's lawyer on February 8, 2000.
I am returning to you your client's application for registration. As you are aware, your client had his registration revoked by order of the Commercial Registration Appeal Tribunal. In this case the Registrar is refusing to accept Mr. Hassan's application and there is no need to issue a proposal.
Section 8 of the Motor Vehicle Dealers Act sets out that a further application for registration may be made on new or other evidence or where it is clear that material circumstances have changed. In this case there is no new or other evidence nor has there been a clear change in material circumstance. Therefore, in accordance with Section 8 of the MVDA, the Registrar is refusing to accept the application submitted by Mr. Hassan.
[7] The respondent sought judicial review of the Registrar's decision. On June 9, 2000, a majority in the Divisional Court found that the Registrar's refusal to process the application denied the respondent procedural fairness. The Registrar was accordingly directed to deal with the respondent's application in accordance with s. 7 of the Act, which offers the possibility of a hearing to a rejected applicant by the Commercial Registration Appeal Tribunal (now known as the Licence Appeal Tribunal). Leave to appeal the decision of the Divisional Court was granted by this court on August 23, 2000.
[8] The issue in this appeal is not whether the respondent has satisfied the requirements of s.8. Section 8, in requiring "new or other evidence" or a change in material circumstances, sets out the threshold to be met by an applicant in the respondent's circumstances. It does not mandate the procedure. That procedure must be in accordance with the process stipulated under the Act and that, in turn, requires procedural compliance with s. 7, the relevant portions of which state:
- (1) Where the Registrar proposes to refuse to grant or renew a registration or proposes to suspend or revoke a registration, the Registrar shall serve notice of the proposal, together with written reasons therefor, on the applicant or registrant.
(2) A notice under subsection (1) shall state that the applicant or registrant is entitled to a hearing by the Tribunal if the applicant or registrant mails or delivers, within fifteen days after service of the notice under subsection (1), notice in writing requiring a hearing to the Registrar and the Tribunal, and the applicant or registrant may so require a hearing.
(3) Where an applicant or registrant does not require a hearing by the Tribunal in accordance with subsection (2), the Registrar may carry out the proposal stated in the notice under subsection (1).
(4) Where an applicant or registrant requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the registrar at the hearing, may by order, direct the Registrar to carry out the Registrar's proposal or refrain from carrying it out and to take such action as the Tribunal considers the Registrar ought to take in accordance with this Act and the regulations and for such purposes the Tribunal may substitute its opinion for that of the Registrar.
[9] The scheme for registration under the Act is found in sections 5, 6, 7 and 8. An examination of sections 5 and 6, the core provisions, reveals that in any circumstance where the Registrar decides to refuse, suspend or revoke registration, the applicant is entitled to invoke the process set out in s. 7, namely entitlement to a hearing by the Tribunal if requested in a timely manner. There is no basis for exempting from this scheme applications made under s. 8 by applicants who have had previous registrations refused or revoked.
[10] Under s. 7, if the Registrar proposes to refuse to grant or renew a registration, notice must be served of this proposal along with notification that the applicant can require a hearing. In this case, the Registrar is purporting to refuse to grant registration. Any such refusal must be in accordance with the process set out in s.7, even though the respondent’s application had been previously revoked. The prior revocation triggers the substantive test in s. 8, but it does not oust the process in s.7.
[11] The Registrar cannot therefore refuse to process the respondent’s application. He is, of course, free to propose to reject it on the basis that the criteria in s. 8 have not been met, but if he does so, he must also, in accordance with s.7, advise the respondent that he is entitled to a hearing by the Tribunal to review the Registrar's decision.
[12] The appeal is dismissed but, in the circumstances, without costs.
RELEASED: February 12, 2001 “RSA” “R.S. Abella J.A.”
“I agree S. Borins J.A.”
“I agree Robert J. Sharpe J.A.”