Court File and Parties

Court File No.: Peterborough: 3360-999-10-0005

Ontario Court of Justice

Between:

Her Majesty the Queen

___ And ___

Richard Voskamp

Before: Justice of the Peace S. Lancaster

Heard on: August 25, 2011, August 22, 2012 & November 1, 2012

Reasons for Judgement released on: February 14, 2013

Charge: Act as salesperson when not registered (s. 3(1)(b)) Ontario Motor Vehicle Dealers Act (OMVDA)

Counsel:

Ms. E. Maishlish & Mr. K.A. Bonham – Crown Prosecutor
Mr. D. McFadden – Counsel for R. Voskamp

JUSTICE OF THE PEACE LANCASTER:

A) ISSUE

Richard Voskamp is before the court charged with 22 counts under the Ontario Motor Dealers Act s. 3(1)(b), act as a motor vehicle salesperson on behalf of Jack Magee Chevrolet-Cadillac Limited, a registered motor vehicle dealer when he was not registered as a motor vehicle salesperson on or about June 24, 2009 to November 14, 2009, in the City of Peterborough.

B) BACKGROUND

Mr. Voskamp's trial started on August 25, 2011, was adjourned to August 22, 2012 and November 1, 2012 for trial continuation. The court heard from five Crown witnesses and the defendant Richard Voskamp. This matter is returning today for judgement.

C) EVIDENCE OF WITNESSES AND FACTS

John Robert McGee – Crown Witness #1

The court heard from John McGee, Vice President and General Sales Manager at Jack McGee Chevrolet-Cadillac Limited in Peterborough. This motor vehicle dealership sells new General Motors products and used motor vehicles of any manufacturer.
Mr. McGee knows Mr. Voskamp, as someone who was looking for employment with his dealership. Mr. McGee spoke to his company's "New Employee Vehicle Information Package", a contract that refers to Mr. Voskamp and sets out employment responsibilities.
These responsibilities include the dealership's code of conduct, the requirement to accompany customers on test drives, not drinking, a valid driver licence, OMVIC license and insurance. This contract is for the Sales Representative for both new and used vehicles. Exhibit 5, a document entitled a "Used Vehicle Pay Plan" was reviewed and established how pay is administered upon the sale of a vehicle. This contract relates to Richard Voskamp.
This contract states that "All sales representatives must conduct themselves in accordance with the Business Practices Act, OMVIC/ Consumer Protection Act and the Motor Vehicle Dealers Act. Sales Representatives are required to be licensed under OMVIC and the MVDA.
Mr. McGee noted that at the time the contract was signed, Mr. Voskamp advised the dealership that he was not OMVIC licensed and that he would apply for his licence. Mr. McGee and Mr. Voskamp had conversations about the status of his licence application.
Mr. McGee reviewed two Purchase Agreements involving Nicolo Pizzo (October 9, 2009) for a 2007 Buick motor vehicle, and Mr. Alfonzo Vautour (November 14, 2009) for a 2007 GMC motor vehicle (Exhibits 4 & 6 respectively). Mr. Voskamp is noted as Sales Representative on both agreements, with Mr. McGee signing his approval. Exhibit 5 confirms that, among others, Mr. Voskamp received a commission for the sale of these vehicles.
Mr. McGee confirmed that the Sales Representative's licence is transferable as long as it is in good standing. Mr. Voskamp came to Jack McGee from Del Mastro Motors and he noted that all new employees receive the New Information package and can start their employment with an undertaking to obtain their required licences. Prior to January 2011, without a valid licence, Sales Representatives were only permitted to show and feature vehicles, i.e., provide product knowledge but cannot discuss pricing or financing.
Mr. McGee was referred to Exhibit 8, a November 2, 2009 e-mail from himself to Ms. Marlene Barkey, an OMVIC Investigator regarding "Richard Voskamp – OMVIC Registration" noting concern that Mr. Voskamp's "…information must have gotten misfiled" and that "Rick is only doing sales presentations and he does not sign contracts or perform managerial duties". Mr. McGee elaborated that sales presentations involve, "showing vehicles… taking people out on drives… demonstrating the vehicle, talking about the vehicle … and handling people's telephone calls … all with the hopes of selling them an automobile". Mr. McGee advised that Mr. Voskamp's employment with his dealership was from June 16, 2009 to November 24, 2009 and that during this time his OMVIC licence was pending. On cross examination regarding Mr. Voskamp's signature on sales contracts, Mr. McGee responded: "I can't ascertain for sure whether he actually signed a contract".
In speaking to Mr. Vautour's vehicle purchase, and specifically the typed name of Rick Voskamp as salesperson, and the absence of Mr. Voskamp's signature, Mr. McGee advised that he couldn't confirm Mr. Voskamp's actual involvement in the sale. Mr. McGee noted that the Sales Representative does not have to sign the bill of sale, and that a signature could be indicative of the person's involvement in the transaction. The fact that Mr. Voskamp received a commission, per Exhibit 5, this commission does not necessarily confirm a direct sales involvement, but could indicate his assistance in terms of showing or promoting the sale or vehicle delivery. Mr. McGee advised that in past years "conditional licences" were issued by OMVIC, although not everyone was issued a conditional licence.
As of January 2011, a Sales Representative cannot be employed without a valid licence. Prior to that time the Sales Representative's responsibilities were limited, as noted above (par. 9 & par. 10). As Mr. Voskamp could not obtain an OMVIC licence, his employment with the Jack McGee dealership was terminated.

Jo Ellen Ingram – Crown Witness #2

The court heard from Jo Ellen Ingram who noted that on September 3, 2009 she purchased a 2007 Pontiac motor vehicle from Jack McGee Chevrolet-Cadillac, and that Rick Voskamp, the Sales Person, handled the sale. Mr. Voskamp showed her and her daughter the car, conducted the research for financing and prepared the sales documents for her signature. Mr. Voskamp was the only person from the dealership that they dealt with, including during the signing of the vehicle purchase agreement (Exhibit 9). The financing was researched and arranged for in her name. Mr. Voskamp also made representations to her regarding an extended motor vehicle warrantee, as the manufacturer's power train warrantee had expired. Ms Ingram noted that Mr. Voskamp did not accompany them on the test drive. Despite Defence counsels efforts to be clear about the issue of an extended warrantee, Ms Ingram appeared to be confused regarding the actual need for the extended warrantee that she purchased, even though the new car warrantee had expired.

Jamie Potvan – Crown Witness #3

The court heard from Jamie Potvan an 8-year employee of Jack McGee Chevrolet Cadillac Limited and currently the new and used car sales manager, whose duties include: motor vehicle advertising, credit applications and pre-delivery inspection. He meets with sales staff twice weekly and assists with most sales transactions by processing and approving offers to purchase. All sales must be approved and compensation is paid to sales people for successful sales with commission reports signed by a manager.
Mr. Potvan worked with Mr. Voskamp in the same building and observed him dealing with customers (test drives, customer sales, writing up sales offers - "he did a good job". Mr. Potvan became aware that Mr. Voskamp was not licensed in November 2009 with OMVIC's search warrant.
Purchase agreements are for customers and the dealer and the commission slip is generated from the sales purchase agreement by the accountant. Mr. Potvan noted that he could not recognize Mr. Voskamp's signature or his registration number. Commission paid depends on the degree of effort regarding the sale and that a sales person's signature on the purchase agreement is not necessary for the sale deal.

Sharon Plumber – Crown Witness #4

The court heard from Sharon Plumber, a 20-year employee of Jack McGee in payroll administration and payables. She calculates employee work hours, prints payroll reports and pays all monthly bills. Regarding sales commission reports, she uses numbers inputted by management. Exhibits 11A-L are pay stubs totaling some $27,300 in commission paid to Mr. Voskamp as sale person from mid-June to the end of November 2009. Ms. Plumber had no involvement in Mr. Voskamp's OMVIC application beyond handing out the certification course forms and the OMVIC license application forms. She did not speak with him about the status of his license.

Thaya Gengatharan – Crown Witness #5

The court heard from Thaya Gengatharan, a 10-year OMVIC employee with 6 years as the registration department manager. Her department receives and reviews license applications including application fees and applicant identification and course enrolment. OMVIC is notified by the college upon an applicants' successful course completion. Course enrolment or completion is not a license. All applications and communication are logged into their computer system and inputs cannot be amended or deleted. Once an application is approved the system generates a registration number. Where registration numbers are subsequently revoked or suspended, the assigned number does not change. The applicant and public can check the status of an OMVIC registration by noting the sales person's and dealer's name. OMVIC staff communicates with registrants by letter, fax and or email. An OMVIC 60 day temporary license can be issued with 48 hours and is sent to the dealership by fax or e-mail.
Ms Gengatharan dealt with Mr. Voskamp when he applied for a dealer and sales person's license in 2000; his license was initially refused and then issued after a successful appeal.
On November 23, 2006 a Consent Order (Exhibit #2) was issued by the License Appeal Tribunal suspending Mr. Voskamp's sales registration for 5 years and his dealer registration for 10 years. Ms. Gengatharan sent an e-mail (Exhibit 13) to the defendant on May 20, 2008 regarding his participation in transactions involving motor vehicles; "participation" was confirmed to mean "any form of negotiation or representation concerning the purchase, sale or lease (of) motor vehicles and not just the signing of contracts". She testified that Mr. Voskamp must be registered before he can work as a sales person. She advised that she sent this e-mail to Mr. Voskamp "to ensure that he understands that he was not to deal in motor vehicles." Mr. Voskamp's application for MVDA registration (Exhibits 12 & 16) was referred to management for review and decision. Ms. Gengatharan advised that management "would not have issued a temporary license given his history of problems".

Richard Voskamp – Defendant

The court heard from the defendant, Richard Voskamp who is 44 years old with 3 teenaged children. He has owned and worked at motor vehicle, recreation vehicle and power sport dealerships, and has declared bankruptcy on two occasions. His dealer and sales person licenses were revoked in 2006 pursuant to a Consent Order of the License Appeal Tribunal. Mr. Voskamp has worked for several years in the car business but after losing his sales license work was hard to find so he began selling non-motorized equipment. He testified that in February or March of 2009 OMVIC's Michael Roth told him that "he can always apply" for his registration, but he didn't expect a reversal.
He approached John McGee for employment advising him that he could apply for a sales person's license and Mr. McGee agreed to take him on. He submitted his application in June 2009 and advised OMVIC of his intention to sell used cars. He realized that his application was considered incomplete given his need to complete the certification course, later advising OMVIC of his course completion in July 2009. Mr. Voskamp testified that OMVIC's Mr. Ginther "led him to believe he could sell cars". The form and timing of this implied advise was not proferred to this court. He testified that Mr. McGee never told him that he couldn't sell cars as long did not sign the deals.
Mr. Voskamp noted that the sales license requirements have changed over the years. Dealers would hire sales persons, some with licenses and others without. He operated under the premise that without a license sales persons were not to sign sales deals. Mr. Voskamp confirmed that he was represented during the OMVIC proceedings that led to the Consent Order suspending his license in November 2006; he believed that OMVIC had a "vendetta against him". He confirmed that OMVIC never told him that he couldn't sell cars and that he didn't enquire about selling cars without a license during his certification training. He agreed that he sold the cars noted in the court exhibits, but that he never signed the purchase agreements because he was told not to.

D) APPLICABLE STATUTES AND CASELAW

Motor Vehicle Dealers Act

s. 1 "Salesperson" means a person employed, appointed or authorized by a dealer to buy or sell motor vehicles on the dealer's behalf

s. 3(1)(b) "No person shall, act as a Salesperson of or on behalf of a motor vehicle dealer unless the person is registered as a salesperson of such dealer and such dealer is registered as a motor vehicle dealer under this Act. R.S.O. 1990, c.M42, s.3(1)"

s. 22(1) "Every person who knowingly,

. . . is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than one year, or to both. R.S.O. 1990, c. M.42, s.22(1)"

Evidence Credibility – R. v. W.(D)

As evidence credibility is an issue in this trial the court has considered R. v. W. (D) (1991) to determine which evidence the court finds more credible and reliable:

Where I believe the defendant's evidence, I must acquit
Where I don't believe the defendant's testimony, but I'm left in reasonable doubt, I must acquit
Where I don't believe the accused's evidence, but on the balance of the evidence I have reasonable doubt, I must acquit

Applicable Case Law

E) ACTUS REUS

The Crown must prove all elements of the actus reus of the offence beyond a reasonable doubt. As per R. v. Lifcus (1997), "proof must be logically connected to the evidence, or absence of the evidence, and does not involve proof of an absolute certainty…"

F) DUE DILIGENCE – LEGAL PRINCIPLES

The charges before this court are mens rea offences by virtue of the wording "knowingly … contravenes any provisions of this Act or the regulations", as set out in s.22 of the Motor Vehicle Dealers Act. Once the actus reus of the offence is proved a conviction must follow unless the defendant exercised due diligence to avoid the commission of the offence. (R. v. Sault Ste. Marie (City) (1978), 40 C.C.C.(2d) 353 (S.C.C.))
Based on the evidence before this court including Mr. Voskamp's testimony that he was the sales person for the noted purchase agreements, this court finds that the prosecution has proven the actus reus of the offences. This court now turns to due diligence.
The defendant must prove due diligence on a balance of probabilities and call evidence to positively make out due diligence. Per R. v. Sault Ste. Marie, "In the normal case, the accused alone will have knowledge of what he has done to avoid the breach and it is not improper to expect him to come forward with evidence of due diligence."
Mr. Voskamp's submitted his application for his sales license reinstatement when he was technically not permitted to do so, notwithstanding OMVIC's apparent suggestion that he could apply, and for not rejecting his application outright until the expiry of the five year suspension period. Despite Mr. Voskamp's extensive experience with OMVIC and OMVDA, working for years in car sales, completing the certification course and with numerous opportunities to confirm his understanding about working as a sales person without a valid licence, Mr. Voskamp made no concerted effort to verify his understanding.
Beyond Mr. Voskamp's statement that he told OMVIC that he was selling cars, the only documentary evidence is that of OMVIC advising Mr. Voskamp that he was not to engage in any motor vehicle sales, several months prior to the offences. This statement should reasonably have led Mr. Voskamp to make specific enquiries if he had a different understanding.

G) OFFICIALLY INDUCED ERROR OF LAW – LEGAL PRINCIPLES

The defense raised an officially induced error of law argument. The defense is endeavouring to reverse the onus with this argument by stating there was no indication from OMVIC that he shouldn't be selling cars. Beyond Mr. Voskamp's assertion, there is no further evidence to substantiate that OMVIC was aware that Mr. Voskamp was actively engaged in motor vehicle sales. Mr. Voskamp didn't indicate who at OMVIC he advised that he was selling cars. Ms. Gengatharan testified that all communication between her office and applicants is by letter, fax and or e-mail.
R. v. Jorgenson:

"In order for an accused to rely on an officially induced error he must show, after establishing he made an error of law (or of mixed law and fact) that he considered his legal position, consulted an appropriate official, obtained reasonable advise and relied on that advise in his actions. When considering the legal consequences of his actions, it is insufficient for the accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice came from an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally consider reasonable for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused most also been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the question posed to the official were specifically tailored to the accused situation."

"A successful applicant of an official induced error of law will lead to a judicial stay of proceedings. As a stay can only be entered in the clearest of cases, an officially induced error or law argument will only be successful in the clearest of cases….. The elements of officially induced error are to be proven on a balance of probabilities by the accused."

On Cross examination Mr Voskamp confirmed that no one at OMVIC told him he could sell cars, not Mr. Roth and not Mr. Ginther. Ms. Gengatharan's e-mail advised him that he was not to participate in "any form of negotiation or representation concerning the purchase, sale or lease of motor vehicles, and not just the signing of contracts". Mr. Voskamp did not seek out nor receive OMVIC permission to sell motor vehicles.

H) FINDINGS

The Consent Order directs "the registrar to suspend the registration of Mr. Voskamp for a period of 5 years after which Mr. Voskamp may apply for registration as a motor vehicle sales person…." Mr. Voskamp's application was received by OMVIC well within the five year period, although again it would appear that OMVIC did not take issue with this early submission. I would agree with the defense that any ambiguity regarding the timing for submitting his application vis-à-vis the Consent Order inures to the benefit of the defendant, but that is where the ambiguity ends.
Mr. Voskamp submits that by completing the certification course, and submitting his application that OMVIC implicitly led him to believe that he could sell cars pending OMVIC's review of his application. There is no evidence that supports Mr. Voskamp's contention that he advised OMVIC of his sales activities or that he received OMVIC direction that he was permitted to sell cars. Furthermore, OMVIC's communication to Mr. Voskamp in May 2008 prior to the 2009 alleged offences confirmed that Mr. Voskamp is not to participate in any motor vehicle purchases, sales or lease.
Given Mr. Voskamp extensive experience in the car business as both as sales person and dealer, it is reasonable to conclude that Mr. Voskamp would understand his licensing obligations. The evidence tendered by Mr. Voskamp, Ms Ingram, Mr. Potvan and per the sale commission reports indicate that Mr. Voskamp was engaged in a broad range of car sales, including arranging finances and extended vehicle warranties, ostensibly beyond the limits of sales promotions as suggested by Mr. McGee.
Mr. Voskamp testified that he has been in the car sales business "all is life…. that that was all he knew." He owned and managed a car dealership for seven years with direct responsibility for sales staff. He believed 100% that sales persons could actively engage in vehicle sales as long as they didn't sign the deals, a view that Mr. Voskamp said was bolstered by Mr. McGee. However, Mr. McGee's emails to OMVIC in November 2009 advised that "Rick is only doing sales presentations and does not sign contracts or perform management duties". Mr. McGee testified regarding Mr. Voskamp's limited role of only showing and featuring vehicles, i.e., provide product knowledge but not discuss pricing or finances. This does not accord with Mr. Voskamp's contention that John McGee sanctioned his full range of sales activity.
The court heard that OMVIC's mandate is consumer protection. Ontario has legislated licensing provisions to ensure that motor vehicle sales people "carry on business in accordance with the law and with integrity and honesty". It is not unreasonable that the public would expect government oversight of the complex business of buying and selling motor vehicles as the personal stakes are high.
Mr. Voskamp believed that he was eligible to apply for his license re-instatement during his suspension period, believed that he could sell motor vehicles while his license was suspended because his application was before OMVIC, and because he was not signing the purchase agreements that he negotiated. Given these circumstances Mr. Voskamp's believed he was free to sell cars. This belief is not reasonable.
The defense suggests that Mr. Voskamp was just trying to make a living doing the only thing he knew how, and that he was 'led down the garden path' by OMVIC. I would characterize Mr. Voskamp's actions as "blazing his own trail", knowing full well that he was conducting a range of car sale activity that he was not permitted to do by law. The evidence shows that Mr. Voskamp used his broad-based experience the make vehicle presentations, consulted on finances and arranged extended warranties, receiving commission for all these services while his sales license was suspended. While his signature is not evident the sales commissions suggest that Mr. Voskamp was involved in various aspects of the sales just short of approving the deals. As Mr. Potvan testified, the more involved one is as a sales person in the purchase deal, the greater the remuneration; the commission reports bear this out in relation to Mr. Voskamp.
The court finds on a balance of probabilities that Mr. Voskamp failed to exercise due diligence that would be expected of a reasonable person in the circumstances, and that there is no merit to the defense arguments regarding and officially induced error of law that would justify a stay.
After considering the evidence presented to this court, and R. v. W(D), this court finds that the Crown prosecution has proven its case beyond a reasonable doubt, that Mr. Voskamp knowingly acted as a sales person without a valid licence and convictions will be registered on all 22 counts.

Signed ________________________________________________

Stephen Lancaster, Justice of the Peace

Released: February 14, 2013

R. v. Voskamp, 2013

Case Summary