Ahmad v. Alberta Motor Vehicle Industry Council, 2010 ABQB 293

Court of Queen ’ s Bench of Alberta Citation: Ahmad v. Alberta Motor Vehicle Industry Council, 2010 ABQB 293 Date: 20100506 Docket: 0903 08549 Registry: Edmonton Between: Carl Ahmad Applicant - and - The Alberta Motor Vehicle Industry Council Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ [ 1 ] This is a statutory appeal under s. 181 of the Fair Trading Act , R.S.A. 2000, c. F-2 .

The Respondent, the Alberta Motor Vehicle Industry Council, will be referred to as the “A.M.V.I.C.” [ 2 ] The parties entered into an Agreed Statement of Facts prior to my hearing this appeal. This Agreed Statement of Facts became Exhibit 1 in this proceeding. It details the Statutory Scheme established pursuant to s. 24 of the Automotive Business Regulation , Alta. Reg. 192/99 and the background of the establishment of the A.M.V.I.C. Put simply, the Director of Fair Trading (the “Director”)

may refuse to issue or renew a licence, may cancel or suspend a licence, and may impose terms and conditions on a licence for various reasons, outlined in s. 127 of the Fair Trading Act , R.S.A. 2000, c. F-2 including s. 127 (

c) where, in the opinion of the Director, it is in the public interest to do so. An individual whose application for registration has been refused by the Director may appeal to a panel of the Appeal Committee. That is what occurred in this case.

Section 181 of the Fair Trading Act grants the right to appeal a decision of the Appeal Panel to the Court of Queen’s Bench. [ 3 ] Exhibit 2 is a document the parties prepared for the Court entitled “Agreed Record” which includes all of the evidence provided to the Appeal Panel (the “Appeal Panel”) on behalf of the Director of the A.M.V.I.C.

The Court was also provided with a filed affidavit of Carl Ahmad, the Applicant, sworn June 4, 2009 and filed June 5, 2009. [ 4 ] The Applicant was first granted a Salesperson Registration as an automotive salesperson pursuant to the provisions of the Automotive Business Regulation in 2001. The Agreed Facts that I have referred to detail his history with the A.M.V.I.C. which, in turn, was based on a number of allegations against him over the years. Of note, he was granted a conditional Salesperson Registration in 2004 and also was subject to a conditional Salesperson Registration in 2007.

Further allegations ensued and following a hearing in February 2009, the Director cancelled his conditional Salesperson Registration. The Applicant appealed the Director’s decision. The appeal was heard by the Appeal Panel in March and April of 2009 and the Appeal Panel issued a written decision dated May 2009 wherein it upheld the decision of the Director, cancelling the Applicant’s conditional Salesperson Registration. [ 5 ] Counsel for the A.M.V.I.C. noted during the course of argument, and I note here, that this appeal involves a new appellate regime pursuant to the Fair Trading Act .

I was provided with Furst v. Alberta Motor Vehicle Industry Council , 2008 ABQB 530 , (“ Furst No. 1 ”) a decision of Madam Justice Moreau and the later decision of Furst v. Alberta Motor Vehicle Industry Council , 2009 ABQB 122 , (“ Furst No. 2 ”) a decision of Mr. Justice Belzil. Both Justices Moreau and Belzil, in their decisions, carefully reviewed the appropriate legislation and the statutory regime. Both decisions are of great assistance to me here. [ 6 ] The issues raised are: 1. What is the appropriate standard of review of the decision of the appeal panel? 2.

The Appellant raises alleged errors of law or unreasonable finding; 3. Does the decision of the Appeal Panel meet the standard of review? 4. The Appellant maintains that if the Court does not set aside the decisions below, that the Court still uphold the findings, yet vary the order by directing the issuance of a Salesperson Registration on conditions such as the ones that were imposed by the Director on February 21, 2007.

Standard of Review [ 7 ] Justices Moreau and Belzil in Furst No. 1 and Furst No. 2 , analyzed the standard of review that applies to statutory appeals under s. 181 of the Fair Trading Act and concluded that “considered collectively and contextually, the enumerated factors militate strongly in favour of a standard of review of reasonableness”. [ 8 ] In both decisions, the Justices recognized that the Fair Trading Act contains no privative clause and provides for a statutory right of appeal, which suggests limited deference.

With respect to the purpose of the tribunal, the Justices note that the licensing provisions of the Fair Trading Act are regulatory and their administration has been specifically delegated to the A.M.V.I.C. in order to provide for a time and cost-efficient method of addressing licensing. Furthermore, the Justices note that decisions regarding Salesperson Registrations are discretionary. This factor suggests a high degree of deference. [ 9 ] Justices Moreau and Belzil accepted that both the Director and the Appeal Panel have more experience with and specialized

knowledge of the motor vehicle industry and Salesperson Registrations than the Court, which also suggests a high degree of deference. Finally, counsel for the Respondent here notes that with respect to the nature of the question, the issue that was determined by the appeal panel in Furst No. 2 is almost identical to that that was determined in this case. In Furst No. 2 , the appeal panel had to decide whether the Director was correct in refusing to grant a Salesperson Registration on the basis that it would be contrary to the public interest to do so.

Justice Belzil clearly held that such a question “did not involve jurisdiction or any other question of law, but, rather, attracted a high degree of deference”. [ 10 ] The Applicant here disagrees with the decisions that conclude that a standard of reasonableness is appropriate. He submits the appropriate standard of review is that of correctness. He disagrees with the Furst No. 1 and Furst No. 2 analyses.

He submits that the nature of the question here does not concern the motor vehicle industry but, rather, centres on the correct manner of treatment of old allegations already dealt with in the past, revived for “yet another go”. Also, that the question here involves an appropriate assessment of credibility and appropriate determinations of fact as well as the appropriate standard of proof of allegations and what type of clear and cogent evidence is required to attain that standard.

The Applicant argues that these issues militate in favour of less deference, and that therefore the standard of review ought to be that of correctness. [ 11 ] As part of the same argument, the Applicant relies on the absence of, what he submits, are two vital things in the hearing for the purpose of this appeal: (

a) The absence of oath-taking; and (

b) A complete absence of any recording of the evidence before the Appeal Panel. He notes that the errors were committed despite the legislated ability of the Panel to both render oaths to witnesses and to record the proceedings. [ 12 ] Mr. Beaver, counsel for the Applicant, questions how this Court can fulfil its role of review in a case which involves conclusions of credibility in the absence of oath-taking and a recorded record. He submits that this suggests that deference is not due to the Panel and as well has been held to be grounds for allowing an appeal in itself. He cites Cymbalski v. Alcorn

(2006) CarswellOnt 1498 (Ont. S.C.) and R. v. Lirette , 1985 CarswellNB 183 (N.B.C.A.) . [ 13 ] In support of the same argument, he raises references to “testimony” made by the Appeal Panel in its reasons, which he submits indicates the members of the Panel did not properly understand the weight of sworn testimony (or the importance of the lack of sworn testimony) and accordingly placed too much weight on unsworn and written statements by third parties.

As such, he submits that the decisions of this Panel are entitled to little deference. [ 14 ] I pause here to note the submissions of counsel for the Respondent in response to these points. Mr. Wilson, on behalf of the A.M.V.I.C., states that the decision of the Panel whether or not to require evidence be given under oath is clearly a matter of procedure that falls within the Appeal Panel’s discretion. The fact that the Legislature chose not to require all evidence before the Appeal Panel be given under oath indicates an intention that the decision be left to the Appeal Panel.

In addition, the A.M.V.I.C. created an Appeal Policy which clearly states “the Panel shall not require oaths or affirmations to be given during the course of appeal proceedings” and states the Panel shall not be bound by the rules of evidence and shall have the power to determine admissibility, relevance, and weight of evidence and the manner in which it may be admitted. The Appeal Policy was properly passed by the A.M.V.I.C. pursuant to its statutorily delegated authority under the Fair Trading Act and the Automotive Business Regulation and was complied with in this case. Mr.

Wilson submits that the Applicant has not pointed to any authority that would require an administrative tribunal such as this Appeal Panel to hear evidence under oath. Further, he notes that the Supreme Court of Canada has clearly held that an administrative tribunal is “the master of its own procedure and need not assume the trappings of a court”: Knight v. Indian Head School Division No. 19 , 1990 CanLII 138 (SCC) , [1990] 1 S.C.R. 653 , [1990] S.C.J. No. 26 (QL) . He submits the issue raised by the Applicant regarding the word “testimony” as it appears in the reasons of the Appeal Panel is semantic.

He submits that, as noted by Justice Moreau in Furst No. 1 “there must be flexibility with respect to written reasons”. [ 15 ] With respect to the argument that the absence of a transcript prevents this Court from properly performing its role and in some way hampers the Court’s ability to review the findings of credibility, Mr. Wilson notes that there were 72 tabs of material before the Appeal Panel, and there is a written decision with a detailed

summary of the evidence. Also, the Applicant himself filed an affidavit in support of his Originating Notice. He notes that the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of

British Columbia , 2003 SCC 19 (CanLII) , [2003] S.C.J. No. 18 , 496, 2008 ABCA 162 (QL) states that findings of credibility are “quintessentially questions of fact” which are to be treated with significant deference. Further, that in the absence of a statutory requirement, the courts have consistently held that there is no general requirement for an administrative tribunal to make a transcript or tape recording and that the lack of a transcript does not offend the principles of natural justice: Canadian Union of Public Employees, Local 301 v.

Montreal (City) , 1997 CanLII 386 (SCC) , [1997] 1 S.C.R. 793 , [1997] S.C.J. No. 39 (QL) and Foster v. Alberta (Transportation and Safety Board) , 2006 ABCA 282 , [2006] A.J. No. 1263 (QL) . [ 16 ] Mr. Wilson distinguishes Cymbalski v. Alcorn ( supra ) as a case which involved an allegation of reasonable apprehension of bias. There is no such allegation here. He notes that R. v. Lirette is a criminal case where the recording apparatus failed. He submits this is not the standard against which the proceedings before the Appeal Panel are to be weighed.

Indeed, he submits that the Applicant’s reliance on a criminal conviction appeal demonstrates that the Applicant is attempting to impose judicial strictures on this administrative tribunal where the Supreme Court of Canada has clearly stated in Knight v. Indian Head School Division No. 19 that that is not the object of review. [ 17 ] Finally, he submits that factually the Applicant was given every opportunity to understand the A.M.V.I.C.’s concerns and to respond to them.

He participated fully in the appeal hearing and was represented by counsel at the hearing before the Director and at the appeal of the Director’s decision. [ 18 ] I have considered the Applicant’s submissions regarding the nature of the case and that a conclusion of deference on that issue ought to be one of little deference, given credibility was an issue, evidence was taken without being sworn, there was no record, and the submission of the Applicant that the reasons indicated the panel did not understand the difference between sworn testimony and the evidence it relied upon.

In my view, the submissions of the Applicant do improperly seek to import judicial strictures that are not, by law, appropriate. The A.M.V.I.C. acted within the parameters of its appeal policy and jurisdiction in choosing not to require sworn testimony and not to record the proceedings. I find the references to “testimony” not attributable to a misconception of the difference between sworn evidence and other evidence but rather attributable to the Panel’s relative inexperience in legal writing.

The record here is, in my view, sufficient to allow me to resolve the issues of appeal and I find that the lack of a transcript does not offend the principles of natural justice. The record, the reasons, and the Applicant’s own affidavit in support his Originating Notice are sufficient to allow me to fulfil my review role. Indeed, I agree that the statements of the Supreme Court of Canada in D. Q v.

College of Physicians and Surgeons of British Columbia apply, that is that I am dealing with findings of credibility and that findings of credibility are “quintessentially questions of fact” which are to be treated with significant deference.

I conclude that Justices Moreau and Belzil in Furst No. 1 and Furst No. 2 , reached an appropriate conclusion on this arm of the test for standard of review. [ 19 ] The Applicant here also questions that the analyses of Justices Moreau and Belzil on the issue of expertise of the tribunal as he submits the chairperson of the Appeal Panel here is not a member of the automotive industry, but rather, a layperson appointed by the Minister with no legal or automotive training.

However, I note other members of the Panel were members of “the industry” and in any event, in my view, this particular submission does not detract from the conclusions of Justices Moreau and Belzil that the Appeal Panel is comprised of individuals with experience and knowledge of the motor vehicle sales industry. This specialized knowledge is greater than that of the Court and suggests a higher level of deference. Thus, I conclude that the standard of review here is that of reasonableness. [ 20 ] I accept the applicable standard has been described by the Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 (CanLII) , [2008] 1 S.C.R. 190 at paragraph 47 as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 21 ] I further agree with the submission of Mr.

Wilson on behalf of A.M.V.I.C. here that the standard of review applicable to findings of fact and credibility is particularly deferential. As stated by the Supreme Court of Canada in Dr. Q v. College of Physicians of British Columbia , ( supra ), the need for deference is greatly heightened with respect to findings of credibility which are quintessentially questions of fact. A reviewing court is not to substitute its view of the evidence for that of the decision-maker. [ 22 ] More recently, in Lonergan v. Ontario (Licence Appeal Tribunal ) , [2008] O.J. No. 2246 (Ont. S.C.J. Div. Ct.) (QL) , the

Ontario Divisional Court considered an appeal from a decision to revoke a real estate licence. On the issue of standard of review, the Court stated at paragraph 4: The issues raised by the Applicant involve the Tribunal’s exercise of discretion to revoke the Applicant’s licence and the Tribunal’s findings of fact, and of credibility, to support the exercise of that discretion. Reasonableness applies to a review of the Tribunal’s decision by this Court on those issues. I adopt these comments. Alleged Errors [ 23 ] It is appropriate to assess the appeal points against the standard I have outlined above.

I do so as follows. [ 24 ] The Applicant resubmits the issue of credibility being central to the decision and the significance of the absence of oath- taking and a recording. He resubmits the submission that when referring to “testimony”, in its reasons that the Panel erred in law. I have dealt with these submissions above in the context of the appropriate standard of review. I have noted that the Panel need not be bound by the rules of evidence applicable to judicial proceedings and has the power to determine admissibility, relevance and weight of evidence in the manner in which evidence may be admitted.

There is no requirement that the Panel take evidence under oath or record the proceedings. Indeed, a discretion is granted by the governing legislation as to whether that would occur. Of importance here is that this Applicant has been given every opportunity to understand the A.M.V.I.C.’s concerns and to respond to them, was invited to make representations before any decision, and did so before the Director. He was represented by counsel then, and thereafter was represented by counsel and made representations before the Appeal Panel.

In my view, the procedure was fair and there is no indication that the Appeal Panel erred in law by virtue of the fact that the evidence was not taken under oath or that the appeal hearing was not recorded. I find there is no error of law indicated by the Appeal Panel’s use of the word “testimony” in its written reasons.

Errors of Law or Unreasonable Findings of Fact [ 25 ] The Applicant here submits that the real reason for cancellation of the Applicant’s registration was the purported “new investigation” of historical claims regarding his employment at Devonian Motors and North Star Hyundai, which resulted in criminal and/or regulatory charges, but no conviction. He notes that the purported breaches of the conditional licence which involve Yellowhead Honda’s failure to acknowledge the terms of the Applicant’s conditional registration are trivial and the historical allegations are now five years old.

He submits that reinvestigating past claims represents an error of law. [ 26 ] In response, Mr. Wilson reminds the Court that in a case such as this, the Court’s role is to review the decision against a deferential standard of reasonableness. Counsel acknowledges the standard could give rise to more than one reasonable conclusion but, as long as the decision falls within a “range of possible acceptable outcomes which are defensible in respect of the facts and law” there is no reason for this Court to interfere: Dunsmuir v. New Brunswick ( supra ). [ 27 ] Mr.

Wilson notes the Legislature has delegated the responsibility to protect the public interest with respect to the issuance and review of Salesperson Registration and that this is necessarily a broad mandate that requires the A.M.V.I.C. to consider any and all factors that may be relevant to the public interest.

In the context of this mandate, he submits that the facts of the case, although some are historical, are sufficient to support the Appeal Panel’s finding that the cancellation of the Applicant’s conditional Salesperson Registration was in the public interest. [ 28 ] Although the A.M.V.I.C. reviewed the history of this Applicant’s Salesperson Registration over the years and, as a result, the various contacts he had with the A.M.V.I.C., I do not find that the Panel’s review of the history and its reinvestigation of the incidents constitute an error of law. [ 29 ] Rather, I agree with the submission of the A.M.V.I.C. that while it is true that the criminal and regulatory charges against the Applicant in the past were either stayed, dismissed or withdrawn, the A.M.V.I.C. was entitled to consider the Applicant’s entire history in the motor vehicle industry in order to properly exercise its mandate to protect the public interest.

[ 30 ] As submitted by Mr. Wilson, the material before the Appeal Panel does demonstrate there were significant difficulties with the Applicant’s explanation regarding the events at Devonian Motors. As stated in the Appeal Panel’s reasons, the Panel was faced with conflicting evidence from the Applicant and from Cam McPherson, the proprietor of Devonian Motors, both of whom appeared in person before the Appeal Panel. In the circumstances, I find the Appeal Panel was entitled to prefer the evidence of Mr.

McPherson which indicated neither he nor his former General Manager would have agreed to a “scheme” put forward by the Applicant which purported to explain his dealings with respect to some vehicles and the former charges against the Applicant for theft. The Panel was also entitled to consider the fact that the Applicant had not paid back the money he would, by his account, have owed to Devonian Motors. The Applicant himself admits that there may have been money outstanding after he left his employment with Devonian Motors. [ 31 ] Mr.

Wilson notes that it appears that at the hearing before the Panel, the Applicant admitted that in acting as an unlicenced wholesaler he was in breach of the Fair Trading Act . I agree that the Panel was entitled to find, as it did, that that called into further question his past conduct. [ 32 ] I also agree with the submissions of Mr. Wilson that the history of Mr. Ahmad indicates that the A.M.V.I.C. over the years had continued to provide him with opportunities to demonstrate his willingness to comply with the statutory scheme.

This includes granting him conditional Salesperson Registration in October of 2005 and again in 2007. [ 33 ] The Applicant here points to the language used by the A.M.V.I.C. in the reasons. For instance, “however, it came to the A.M.V.I.C.’s attention that Mr. Ahmad may have given information about a customer’s personal and financial information to another dealer without the consent of the customer during his employment at Woody’s RV”. Further, “While there was no direct evidence that Mr. Ahmad was the person who actually transmitted Mr.

Corey Blais’ personal and financial information, the fact that he stood to gain from the commission earned on the sale and that he was linked by marriage to Ms. Ahmad, caused the Panel to disbelieve Mr. and Mrs. Ahmad’s protestations of innocence and their attempt to implicate the business manager, [of Woody’s RV] (my insertion) Steve Nouga in the conspiracy.” Mr. Beaver, on behalf of the Applicant, notes there was no evidence before the Panel that Mr.

Ahmad had anything to do with the misrepresentation of a customer’s personal and financial information and there was no direct evidence that he was the one who took the information. [ 34 ] I find that the statements of the Panel reflect a rejection of the Applicant’s evidence on this point and the finding of the Panel on this matter was clearly one of credibility and a finding that the Panel was clearly best situated to make. I agree with Mr.

Wilson’s submission on behalf of the Respondent that in the context of this particular statutory scheme in which the A.M.V.I.C. has been given delegated authority to protect the public interest, that the Applicant’s past criminal and regulatory history are relevant considerations and provide a further basis on which to conclude that the Appeal Panel’s decision was reasonable. [ 35 ] Although the A.M.V.I.C. also referred to the Applicant’s failure to comply with the condition that his third employer, Yellowhead Honda, notify the A.M.V.I.C. that they were aware that the Applicant had a conditional Salesperson Registration, the A.M.V.I.C. was clear that this was just one circumstance they considered and was clear that on the basis of that non-compliance alone, they would not have upheld the cancellation of the conditional Salesperson Registration.

However, they were clearly entitled to consider this failure as part of the circumstances. [ 36 ] I do not find the A.M.V.I.C. Appeal Panel committed reviewable errors of law or unreasonable findings of fact as alleged by the Applicant. I conclude that the decision of the Appeal Panel was reasonable and accordingly I dismiss the Applicant’s appeal and affirm the decision of the Panel. [ 37 ] The parties are free to make further submissions to me regarding the issue of costs of the proceeding. Heard on the 12 th day of November, 2009. Dated at the City of Edmonton, Alberta this 5 th day of May, 2010.

D.A. Sulyma J.C.Q.B.A. Appearances: Shawn Beaver for the Applicant Donald J. Wilson for the Respondent