Ontario (Motor Vehicle Industry Council) v. Letheren, 2019 ONCJ 989

ONTARIO COURT OF JUSTICE (East Region) CITATION: Ontario (Motor Vehicle Industry Council) v. Letheren , 2019 ONCJ 989 DATE: 2019 05 13 COURT FILE No.: 99917170636 BETWEEN: ONTARIO MOTOR VEHICLE INDUSTRY COUNCIL Prosecutor -and- DANIEL LETHEREN Defendant Ontario Court of Justice Belleville, Ontario C. Peltzer J.P. Heard: January 10 th , 11 th , 2019; March 18 th , 2019 Decision: May 13 th , 2019 Counsel: Kenneth Bonham, for OMVIC. Paula Stevens, for the Defendant Legislation: Consumer Protection Act, 2002, S.O. 2002, c.30, Sched A, ss. 15(1) , 17(1) , 116(1) (b)(ii) Provincial Offences Act, R.S.O. 1990, c. P.33 ,

Decision of the Court 1 . C. Peltzer J.P. :-- The following are the reasons for my decision at trial. (

A) Background 2 . On January 5 th , 2016, Ms. L.R. purchased a used automobile from Need A Car Belleville with the assistance of Daniel Letheren , the salesperson, following numerous emails back and forth discussing particulars of the deal. 3 . Shortly after purchasing the vehicle, Ms. L.R. started having mechanical difficulties with it. The Defendant was responsive to her concerns and directed her to various garages in order to get her vehicle repaired. Some of the repairs were covered by warranty and others were not; much to the surprise and disappointment of Ms. L.R. and her father Mr. J.R. 4 . Ultimately Ms.

L.R., with her father’s assistance, filed a complaint with OMVIC and an investigation ensued, which resulted in Need A Car owner Mr. Anil Puri releasing Ms. L.R. from the contract upon return of the car. 5 . The complainant and OMVIC had concerns that Mr. Letheren was willfully blind to the cognitive limitations faced by Ms. L.R. during his interactions with her due to her acquired epileptiform aphasia. 6 . The most contentious issue at trial has been the nature and extent of the complainant’s disability and whether Mr.

Letheren made unconscionable representations to her in order to induce her into purchasing the vehicle. 7 . The relevant legislation is as follows: Unconscionable Representation s.15(1) - It is an unfair practice to make an unconscionable representation . s.15(2) – Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know, (

a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors; (

b) that the price grossly exceeds the price which similar goods or services are readily available to like consumers; (

c) that the consumer is unable to receive substantial benefit from the subject-matter of the representation; (

d) that there is no reasonable probability of payment of the obligation in full by the consumer; (

e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer; (

f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable; (

g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or (

h) that the consumer is being subjected to undue pressure t enter into a consumer transaction. Unfair Practice Prohibited s.17(1) – No person shall engage in an unfair practice. Offences s.116(1) A person is guilt of an offence if the person, (

a) fails to comply with an order, direction or other requirement under this Act; or (

b) contravenes or fails to comply with,… (ii) in respect of

Part III, Unfair Practices, subsection 17(1),

(

B) Issues 8 . The issues to be addressed in my decision are as follows: 1. What elements of the offence are not in contention? 2. What constitutes the mens rea for this offence? 3. Has the requisite mens rea been proven BRD? (

C) Issues 1. What elements of the offence are not in contention? 9 . Having heard the evidence at trial, and where the evidence of the parties is in agreement or uncontradicted, I accept beyond a reasonable doubt that: a. Mr. Daniel Letheren worked as a salesman at Need A Car Belleville; b. that Mr. Letheren sold a 2007 Mitsubishi motor vehicle to the complainant Ms. L.R, on 5 January, 2016, in the city of Belleville; c. that Ms. L.R. demonstrated reduced abilities in her interactions with Mr. Letheren due to her acquired epileptiform aphasia; d. that this disability was apparent to Mr.

Letheren at all times during his interactions with her, both before, during, and after the sale of the vehicle; e. that shortly after the sale of the vehicle repairs were required which were unexpected, many of which were not covered under warranty; f. that over time the repairs and carrying costs became prohibitive for the complainant which culminated in a complaint to OMVIC in August 2017, regarding the actions of Mr.

Letheren; g. that the owner of Need A Car released the complainant from her contract and took the car back due to concerns surrounding the transaction and the ongoing state of the car mechanically; and h. that Need A Car was able to take the car back as they had done in-house financing on the deal which made rescission an option for all parties; 10 . Given the above, there is no issue for me that the actus reus of the offence has been made out. 11 . There is also no issue that elements of time, date, place, ID, jurisdiction, etc. have also been made out BRD. 12 .

The only remaining element of the offence that needs to be addressed is whether the required mens rea has been made out BRD. This will be the focus of the remainder of my decision. 2. What constitutes the mens rea for this offence? 13 . Mens Rea can be proven in various ways. The prosecution can establish mens rea through proving the defendant has intent, knowledge, or was reckless. In this case the prosecution submitted that the mens rea had been proven as the evidence showed that Mr. Letheren was willfully blind in his dealings with Ms.

L.R., as he was motivated to make the sale which led him to not make the inquiries necessary to satisfy his code of conduct nor protect the interests of the consumer at that time. 3. Has the requisite mens rea been proven BRD? 14 . In order to determine whether Mr. Letheren had knowledge or intent or was reckless in relation to the complainant I must review the evidence in relation to the nature and extent of Ms.

L.R.’s disability, and the evidence of the parties interactions leading up to and including the sale of the vehicle on 5 January, 2016; all in light of the factors articulated in the legislation in 15(2) of the Act. a. The Nature and Extent of the complainant’s disability 15 . It is clear from the evidence that Ms. L.R. had, and continues to have, challenges in communicating and understanding language and concepts due to her acquired epileptiform aphasia. 16 . The evidence relating to the complainant’s diminished capacity/understanding relevant to the purchase of the vehicle in 2015

is as follows: a. That she had been diagnosed with acquired epileptiform aphasia at a young age by Dr. Metloff and has been dealing with specific cognitive challenges throughout her life; b. That according to Dr. Metloff, Dr. Jokel, Marlene Barkey, and her father, that given her diminished cognitive ability she cannot absorb complex or abstract ideas and that she often requires those she communicates with the speak slowly using simplified direct language in order to understand; c. Regarding Dr. Metloff’s evidence specifically: i. He stated that he was a specialist in neurology; ii. that he had examined Ms.

L.R. as a youth; iii. that he was part of the team who diagnosed her with acquired epileptiform aphasia; iv. that his 2018 examination was the first-time seeing Ms. L.R. since she was a youth; v. that his assessment was that her physiology was within normal parameters; and vi. that I find his conclusion was not informed by, or consistent with, his observations when he stated: Based on a careful review of available documents, including the report by Dr.

Regina Jokel, I conclude that L.R. has unequivocal and quite obvious problems with language comprehension and expression, and that she would have great difficulty comprehending a complex contract to lease or purchase a motor vehicle, without appropriate advice and consultation, in order that she would understand fully her obligations to meet the terms of that contract. Thus, in these respects, I conclude that L.R. was not competent to sign a contract to buy or lease a car without careful review and approval of the terms and conditions by an appropriate advisor.

Moreover, her difficulties in speaking, wordfinding, naming, reading and comprehending spoken and written language, including complex legal text, would be quite obvious to any reasonable salesperson. vii. the issues that I struggle with having read his opinion are that: a. he deferred to another doctor for his conclusion NWS his observations of normal physiological functioning; b. that it is problematic for me that his physiological observations led to an opinion of her cognitive ability by referring and deferring to the observations of Dr.

Jokel- thereby running afoul of the requirement that an expert opinion be independent and unbiased, and given that the role of an expert is to provide an objective and independent assessment and opinion in order to assist the court beyond what a lay person could provide; c. also, that his conclusion regarding what Mr.

Letheren should have known or appreciated at the time runs afoul of the ultimate issue rule which prohibits experts from making conclusions that usurp the role of the court, as their opinion is to assist the court in making it’s own conclusion on an issue and not to conclude the issue for the court to simply adopt. E.g. An accident reconstruction specialist who gives detailed evidence regarding an accident scene who then goes on to say that the driver had to have been careless in the circumstances of the collision. viii. Regarding the evidence of Dr.

Jokel specifically: a. that she stated that she is a specialist in speech-language pathology; b. that she observed that Ms.

L.R.’s: i. verbal expression was mildly impaired and that her articulation and naming abilities were below average; ii. that her auditory comprehension was largely intact for relevant sentences except her vocabulary was below her age level and that she had difficulties with sentences lacking personal context or straightforwardness; iii. that she had difficulties with sentence comprehension scoring about 50% accuracy in answering questions of paragraph length material; iv. that in reading comprehension: 1) she said she reads books at bed time; 2) that she could read orally with some errors in pronunciation; and 3) that her comprehension of paragraphs was 60% accurate; and 4) that her Written Expression was not tested as she reported lower than average ability to write and there was limited time for testing in this area; v. that in Cognitive Screening:

1) she was able to distinguish differences but did not express similarities when discussing sematic categories e.g. watch and calendar, although she was cognizant of current events, time, place, and people; and c. her expert opinion was that: i. Ms.

L.R. has functional language skills which are simplified; ii. that her speech was fluent and informative although it lacked clarity which is also known as “deaf speech”; iii. that she is able to lip read provided she can observe the lips of the speaker; iv. that she has deteriorated comprehension where there is an increase in complexity or abstractness of the topic being discussed; and v. that she has difficulty with abstract thinking. ix. The evidence that seems to challenge, or partially conflict, which must be considered in light of opinions of Dr. Metloff and Dr. Jokel is that: a. Ms.

L.R. graduated from high school and must have exhibited at least some competencies in reading, writing, and comprehension NWS that she may have been in a modified or accommodated programme; b. That she has been gainfully employed with Canada Post for several years as a delivery person and appears competent in the tasks she is assigned as her employment continues without any accommodations; c.

That she has been married and divorced, raised two children successfully and has bought and sold property and vehicles previously having successfully navigated the challenges and complexities of life, litigation, and legalese; d. That her evidence at trial was coherent, relevant, helpful and direct NWS her challenges and the stresses of giving evidence in court; e. That her emails back and forth with Mr. Letheren although simple in language were also direct, relevant, and thoughtful in their content.

There also appears to be the use of direct demands, humour, and chiding within the correspondence, all without a single incident of misunderstanding or misinterpretation by either party. f. That she is trained in hair-dressing and has graduated from a programme that required testing and assessment before becoming qualified; and g. That she apparently can type 50 words per minute according to her father, and that she has won awards for her typing proficiency in the past; 17 . It is clear from the evidence at trial that Ms.

L.R. has a disability and that she has learned skills and methods to minimize the effects of her disability in everyday life. 18 . Her lip-reading skills appear to be excellent provided that she can see the lips of the speaker and that the content of the speech is paced accordingly and the content being conveyed is simple, straightforward, and not compounded or abstract. b. Evidence of the party’s interactions leading up to the purchase of the vehicle on 5 January, 2016 19 . The evidence at trial reveals that Ms. L.R. was in need of a vehicle to replace her SUV that was no longer reliable. 20 .

She was under pressure and time constraints as she needed a replacement vehicle for her employment. 21 . Another challenge for her was that her credit rating was unenviable, and this may have been what made Need A Car a viable option for her. 22 . Clearly there was an initial visit to the dealership. 23 . There also were several email exchanges regarding financing options, payments, terms, etc. 24 . It is also relevant to the issues before the court that: a. Mr. Letheren asked Ms. L.R. to bring her son with her to assist; b. That Ms. L.R. seemed to push Mr.

Letheren for particulars so the deal could move forward before Christmas 2015; c. That they chided one another and engaged in frank exchanges at different times; d. That although Ms. L.R. asked for time to think about the deal over Christmas and to speak about it with her family, she never

mentioned it to her father until after the deal was done; e. That she agreed in cross-examination that she had read the contents of the paperwork at signing and had initialled the documentation throughout, although it was clear that there were several gaps in her understanding e.g. the car being a US car; f. That she spotted errors in the paperwork once she got home and chided Mr. Lethern for his oversight; g. That Ms. L.R. although she expressed a desire to speak to her dad about the deal, she did not do so during the three weeks leading up to 5 January 2016; h.

That although she asked that her dad be present during the conversation on 5 January 2016, at no time did she insist on this or refrain from completing the deal; i. That although Mr. Letheren apparently told her to “trust him” on several occasions during their conversation on 5 January 2016, she did not articulate any occasions of inappropriate pressure or coercion on the part of Mr. Letheren beyond his comments to “trust him”; j. That the terms of the deal do not on their face seem exorbitant, neither the purchase price, nor the interest rate according to the evidence of the Owner of Need A Car Mr. Puri; 25 .

Although the allegations relate to Mr. Letheren’s conduct and intentions leading up to 5 January 2016, there is some relevance to be given limited weight, regarding the emails and actions of the parties following the transaction in January, that: a. That the car required ongoing repairs; b. That some repairs were not covered by the warranty as expected; c. That Ms. L.R. was not only having mechanical issues with the car but that she was also having financial issues with the payment plan; which was acknowledged by her father Mr. J.R. in cross examination; d. That it was Mr.

J.R. that took issue with the interest rate and the ongoing repairs, and it was his idea to pursue a remedy for his daughter in contacting OMVIC and demanding that the deal be discontinued; e. That Mr. Letheren and Ms. L.R. communicated regularly after the deal and that Mr. Letheren committed time to responding to Ms. L.R.’s concerns and assisted her where he was able; f. That Ms. L.R. did not contact OMVIC until later in 2017, over a year after the car was purchased; g. That Ms. L.R. had already received a remedy from Mr.

Puri in the form of the recission of the contract and the ceasing of payment of monies owed. 26 . It is also somewhat relevant that NWS that this is a mens rea offence, the Investigator unreservedly accepted the Ms. L.R.’s complaint and laid the charge without ever speaking to Mr. Letheren to determine if the complaints had merit or to inquire into his state of mind at the time on 5 January 2016. He was able to be located to serve him a summons but was not given any opportunity to tell his side of the story before the charge was laid. c. Applying the evidence to the legislated factors in 15(2): 27 .

Returning to the s.15(2) factors where is say: Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know, (

a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors; I conclude that although Ms. L.R. has a significant disability, she did not suffer from ignorance, illiteracy, or an inability to understand the language of the agreement. Ms. L.R. meaningfully engaged Mr. Letheren in the purchase of the car and the terms therein.

Although she may not have appreciated all of the terms and limitations of the agreement and warranty, she had sufficient understanding and appreciation of the essential elements of the agreement such as purchase price, interest rate, terms of payment, etc. (

b) that the price grossly exceeds the price which similar goods or services are readily available to like consumers; No. The price and terms were reasonable in the circumstances. (

c) that the consumer is unable to receive substantial benefit from the subject-matter of the representation; No. Ms. L.R. was able to receive substantial benefit from the subject matter of the representation. She enjoyed the use of the vehicle until its return later in 2017, NWS the unexpected repair expenses and variations to her financing arrangements. (

d) that there is no reasonable probability of payment of the obligation in full by the consumer; Yes, there was a reasonable probability of payment of the obligation NWS her financial challenges. (

e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

No. The agreement was not excessively one-sided. (

f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable; No. The terms did not created inequity and were reasonable in the circumstances. (

g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or No. Missing the fact that the car was a US car did not adversely affect the agreement or change the jeopardy for Ms. L.R.. The disagreements as to what was covered under the warranty were genuine disagreements and were not based on any misrepresentation by Mr. Letheren. (

h) that the consumer is being subjected to undue pressure to enter into a consumer transaction. No. Obviously Mr. Letheren wanted to make a sale, and Ms. L.R. absolutely needed a replacement vehicle, but there is no evidence of undue pressure on the part of Mr. Letheren. This deal took over three weeks to crystalize. Ms. L.R. had ample opportunity to speak to her family to get advice and she could have left at any time leaving the documents unsigned. (

D) Decision 28 . Given my reasoning above, I am not satisfied beyond a reasonable doubt that the Defendant had the requisite mens rea for the offence as charged. 29 . Although there is evidence that the transaction was not competed under ideal circumstances, and one may argue that Mr. Letheren was at risk of unethical conduct according to his obligations to fully explain all of the terms of the contract. In response to the charge itself, given the competing evidence regarding Ms. L.R.’s capacity to understand and appreciate the agreement, and the contradictory evidence of Mr.

Letheren’s conduct in apparently pressuring Ms. L.R. while at the same time responding to her concerns in a meaningful and patient manner both before and after the sale, I am left with a reasonable doubt. 30 . I have persisting reasonable doubts that Mr. Letheren intended to engage in unfair practice, was reckless in the same regard, or was willfully blind. 31 . Therefore, the charge against Mr. Letheren is dismissed. 32 . In Obiter , I must ask what compliance with his ethical obligations and the CPA would look like if this offence had been made out BRD? 33 .

Is it that upon discovering that a consumer has a disability that interferes or clouds ones appreciation of the details of an agreement, is it necessary that the salesperson then make inquiries of the consumer as to the extent of their disability, or delve into the extent of the understanding by asking questions of the consumer that they may or may not be able to answer, or may not be comfortable answering, or may leave them feeling patronized? 34 .

If a salesperson felt that the consumer was not appreciating the agreement to the extent that he/she should, is it expected that the salesperson then refuse to provide the good or service, or require another party to participate in the negotiation? 35 . Would the salesperson’s inquiries of the consumer that informed their decision to refuse to provide the good or service serve as a valid defence to a claim of discrimination should the consumer be offended or suffer a loss as a result of not being able to purchase the good or service in a timely fashion. This is a question that remains unanswered at this time.

Released: May 13 th , 2019 Justice of the Peace C. Peltzer