COURT FILE NO.: 592/03
DATE: 20040323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND LINHARES DE SOUSA JJ.
B E T W E E N:
AHMAD KHAN and AZAM A. KHAN
Applicant
- and -
THE DIRECTOR OF VEHICLE INSPECTION STANDARDS
Respondent
In Person
Patrick Moore, for the Respondent
HEARD: March 23, 2004
SWINTON J.: (Orally)
[1] The applicants have brought a motion for leave to adduce new evidence that was not before the Licence Suspension Appeal Board. They have provided no affidavit evidence to explain why, with due diligence, the evidence was not available at the time of the Board’s proceeding, nor, more importantly, to show that the evidence is relevant to the issues in the application for judicial review.
[2] The evidence relates to adherence to internal Ministry guidelines and a finding of credibility with respect to Mr. Tomasone in an unrelated criminal case. In our view the evidence is not relevant. Therefore, the motion is dismissed.
[3] The Licence Suspension Appeal Board, in a decision dated September 8, 1998, determined that the Director of Vehicle Inspection Standards correctly held that the applicants would not comply in the future, as required by the Act, given their past conduct, and directed the Director not to issue an MVIS licence to Azam Khan and to refuse to register as a motor vehicle inspection mechanic Ahmad A. Khan.
[4] The Board stated at p. 10 of its Reasons:
“The Board accepts the testimony of the inspectors, and finds that the defects on the eight vehicles inspected and listed in the Notice of Refusal dated September 24, 1997, did in fact exist at the time of the Safety Certificate inspections and Certificate issuances by the Appellants. The Appellants did not offer any reliable or credible testimony to refute the testimony of the inspectors, and in no way acknowledged responsibility or offered reasonable explanation for issuing Safety Certificates for defective vehicles.
This past conduct affords the Director reasonable grounds for the belief that the Appellants will not act in accordance with the laws and with honesty and integrity.”
[5] The applicants failed to pursue their statutory right to appeal the decision of the Licence Suspension Appeal Board, pursuant to s.96(9) of the Highway Traffic Act. They now seek judicial review of that decision. Judicial review is a discretionary remedy. If the applicants wished to challenge the Board’s decision, they should have filed an appeal in Divisional Court, ordered the transcript and perfected the appeal within the time limit indicated for appeals. As they failed to take any of these steps or to proceed in any fashion in a timely manner, the application for judicial review is dismissed.
FERRIER J.
[6] The application record will read: “For oral reasons delivered, application dismissed. Costs fixed at $2,000, payable by the applicants jointly and severally to the respondent.”
___________________________
FERRIER J.
___________________________
SWINTON J.
___________________________
LINHARES DE SOUSA J.
Date of Reasons for Judgment: March 23, 2004
Date of Release: March 29, 2004
COURT FILE NO.: 592/03
DATE: 20040323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND LINHARES DE SOUSA JJ.
B E T W E E N:
AHMAD KHAN and AZAM A. KHAN
Applicant
- and -
THE DIRECTOR OF VEHICLE INSPECTION STANDARDS
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 23, 2004
Date of Release: March 29, 2004