R v Ruzdiana, 2023 ABCJ 190

In the Alberta Court of Justice Citation: R v Ruzdiana, 2023 ABCJ 190 Date: 20231122 Docket: 220895809P1 Registry: Calgary Between: His Majesty the King - and - Sayad Arafath Ruzdiana Decision of the Honourable Justice S.L. Van de Veen Charges [ 1 ] The accused is charged with three types of offences.

Counts 2, 6 and 10 in the Information charge the accused with the offence of engaging in a designated business without a license to do so, contrary to sec 104(1) of the Consumer Protection Act which reads as follows: “104(1) No person may engage in a designated business unless the person holds a license under this Act that authorizes the person to engage in that business.” The automotive business, which includes the sale of vehicles is a designated business under Alberta Regulations 178/99. [ 2 ] The second type of charges before the Court are found in Counts 3 and 7 of the Information, which allege the accused said things that reasonably misled and deceived consumers contrary to sec 6(4)(

a) of the Consumer Protection Act which reads as follows: “6(4) Without limiting subsections (2) and (3), the following are unfair practices if they are directed at one or more consumers or potential consumers:

a) a supplier’s doing or saying anything that might reasonably deceive or mislead a consumer;”

[ 3 ] The third type of charges before the Court are found in Counts 5, 9 and 13 of the Information which allege the accused failed to comply with an order of the Director of Fair Trading under sec 129 of the Consumer Protection Act which authorizes the Director to prohibit any salesperson or designated agent from engaging in a business or carrying out any activity authorized by the license.

Facts [ 4 ] Upon considering the totality of the evidence and the submissions made, I make the following findings of fact. [ 5 ] The accused had never been licensed in Alberta to engage in an automotive business or to be a salesperson of automobiles. Therefore, he is not permitted under any regulatory regime to sell cars in any commercial setting.

In addition, on March 22, 2019, the Director of Fair Trading issued an order prohibiting the accused from continuing to sell motor vehicles and to remove all vehicle advertisements on any form of news communication. [ 6 ] The accused is a Director of 2387326 Alberta Ltd. and Digimechanix Marketing Inc. He is also registered as a shareholder of Digimechanix Marketing Inc. as well as being a declarant of Smar Automobile. All of these entities are active registrations. Smar Automobile was registered June 18, 2017 and the other corporate entities were all registered November 18, 2021.

There is no corporate registration for an entity called Universe Transportation. Dealings With Adrienne Kehler and Gary Ryan [ 7 ] On July 13, 2021, Adrienne Kehler and her husband Ryan purchased a 2004 Saturn Vue from the accused. She and her husband found a few places on Kijiji to look for a vehicle to replace their old vehicle which was becoming unroadworthy. She found 15 to 20 ads under the name of Universe Transportation with a phone number. There was no website. A Saturn Vue was one of the vehicles advertised and she expressed an interest in it by text.

She was given an address of 4313R-84 Street NE, by text message, and she went to view the cars mentioned in the several ads on Kijiji. She and her husband found at least 20 people and about 50 cars on the property. The accused approached her and she asked if he was the one she had texted and he said yes. He asked which car she wanted to look at and after looking around for a few minutes, she told him she’d like to take the Saturn Vue for a drive. [ 8 ] The accused went to get the keys and she asked him a number of other questions about whether the vehicle was a good vehicle.

She told the accused to make sure to tell her what was wrong with the vehicle. She told him she had little money and made a point that she could not afford to be ripped off. The importance of this conversation is that she spent time with the accused and was eager to know if anything was wrong with the vehicle. The accused assured her she had nothing to worry about and that the vehicle was in good shape. With respect to the test drive, the accused got into the driver’s seat, her husband Gary got into the passenger seat and Adrienne was in the back seat.

A warning light came on and the accused told her it was just a sensor which comes on with old vehicles. He said it was nothing to worry about. The test drive was just two minutes, up to the end of a gravel road by the property and back. At the end of the test drive, after discussion between Adrienne and her husband, they decided to buy the Saturn Vue. They gave the accused $900 cash and e-transferred him $1,100 for a total price of $2,000. The accused produced a Bill of Sale. He filled in all of the seller’s information, general information, and special conditions of the sale on the document. He also signed it.

The Bill of Sale lists Universe Transportation as the owner and the year on the vehicle appears to be 2004 but Adrienne was told the vehicle was a 2007. [ 9 ] Upon receiving the E-transfer the accused gave Adrienne Kehler and her husband Gary the keys to the vehicle and they drove the Saturn Vue home about 10 to 12 kilometers. The next day it was discovered the car had no catalytic converter and could not hold oil. A mechanic friend came over with a test tool which indicated multiple problems with the vehicle, one of which was the absence of a catalytic converter.

Also, when the couple filled it with oil, the car could not hold or utilize oil effectively. After 50 kilometers, there was no further oil left. Efforts to reach the accused failed. The car was completely unroadworthy and the repairs for the catalytic converter estimates alone were more than the purchase price of the car. The car was destroyed, being of no value to its buyers. Dealings With Brendan Anderson and Phillip Anderson [ 10 ] Brendan Anderson found an ad on Kijiji advertising a 2021 Acura MDX which said the SUV ran “good” and had no issues. The ad had a contact name, being “Sam” with a phone number.

Brendan texted the number and was told he could look at the vehicle the following day. He and his father Philip went to the address 4313R - 84th St. NE Calgary and found a lot about the size of a courtroom. He had been told not to go to the house which was at the end of the road from the car lot. This was the same information Adrienne Kehler had been told when she was given the address to look at her vehicle. [ 11 ] When the Andersons arrived they found over 20 or 30 cars and three people selling them. They spoke to one of the sellers who was not in Court and who was not the accused.

When they selected a car, they were directed to the accused by the other employee they had spoken to. They were told the accused was in charge. The accused confirmed the vehicle ran smoothly with no issues but mentioned there might be a need for a steering pump. The Andersons spent a good 10 to 15 minutes with the accused who called himself “Sam” and had no difficulty recognizing the accused as the person they were told was in charge and who dealt with them.

The accused identified himself as “Sam” when he provided them with a Bill of Sale for the vehicle they have chosen. [ 12 ] The accused signed the Bill of Sale on July 30, 2021, when the Andersons had completed payment. He also completed the second page of the document. The only part of the Bill of Sale completed by Philip Anderson or his son was the buyer’s information. It was the accused who the Andersons dealt with once they chose the Acura. Payment of $1500 was made in two parts. One payment was made by E-transfer from Brendan and was made when the car was chosen.

The second E-transfer of $700 was made on July 30, 2021, when the Bill of Sale was provided and signed by the accused, who also gave the Andersons the keys to the vehicle.

[ 13 ] In terms of identification, which is an issue in this trial, Philip Anderson not only recognized the accused in the courtroom, he testified he recognized him immediately as he was parking his car before entering the courthouse. The accused walked by Phillip Anderson on the street at that time and Philip Anderson recognized the accused as the same gentleman who sold the car. [ 14 ] Philip Anderson studied the accused the day his son chose the Acura, noticing how pushy he was to sell the car. The accused made it quite clear that the second payment by Brandon better be quick.

The accused told Brandon he had to be there the next day or he would not get the first part of the payment he had made back. [ 15 ] The vehicle was unroadworthy. When Brendan drove it home the engine began to surge and the car couldn’t accelerate. He pulled over and after waiting a period of time the car started again and he was able to get home. Brandon tried changing the oil and putting in a steering rack, but when he tried to drive it for a couple of days, it simply broke down as he was driving repeatedly. The car remains at his dad's shop and he has been unable to use it.

Dealings with Rodney Sibanda [ 16 ] In the summer of 2021 Rodney found several Facebook ads listing vehicles at 4313R-84 St. NE. He expressed an interest in two such vehicles which had the same address as the Kia Sorento he eventually purchased. [ 17 ] He spoke to someone who told him he could come see the vehicle at 4313R - 84 St. NE. He expected to see a car dealership but found a back lot with many cars side by side, many in poor condition. He testified there were about 50 to 70 vehicles and about 3 or 4 people who were representatives of the establishment.

On the first day he was there he dealt with one of the representatives who was not the accused and who showed him the three vehicles he was interested in. The representative also test drove them with Rodney. Rodney drove and the representative was in the back seat. [ 18 ] It was the representative, not the accused, who assured Rodney the Kia Sorento had no problems and that only minor inexpensive things may go wrong with it. When Rodney test drove it, he was able to get the car to a decent speed, but not more than 60 or 70 kilometers per hour. The test drive took 10 minutes.

The financial matters were initially stated to him by the same person whose name he was not given. On September 1, 2021, he made a deposit of $200 on the vehicle by E-transfer. On September 3rd he returned to the lot and dealt with the accused who filled in the Bill of Sale and signed it. This was done on the hood of the car. Rodney dealt with the accused for 15 minutes and had no difficulty identifying him in Court. The accused also helped him get enough gas to drive the vehicle to a gas station to secure enough gas to get home. A day or two after buying the vehicle, it began to jump and start.

It would stop accelerating and then begin accelerating again. This went on sporadically for most of his journey from a friend’s home. About 6 miles from home, it just quit working completely. He had to pull over and there was a pool of smoke and fire coming from the engine. After the smoke died down he noticed a pool of oil under the car. A mechanic told him there was a hole in the oil pan and internal damage to the engine. These were repairs which would cost more than the price of the vehicle. Rodney sold the vehicle for $300 to an organization called Pick-n-Pull. The price of the vehicle had been $1250.

Rodney paid the balance of the purchase price of a $1000 the day he dealt with the accused. Alberta Motor Vehicle Industry Council [ 19 ] Frank Lough, a peace officer with Alberta Motor Vehicle Industry Council has been in his position since March 9, 2015 and it is his duty to regulate the motor vehicle industry and license individuals within the industry. He has had several interactions with the accused beginning in January 2019, but the interactions involving the 4313R - 84th St.

NE property were in 2020 and 2021. [ 20 ] When he came to inspect the location, he was followed by the accused and another person in a vehicle which came out of the lot on 84th St. NE at a high rate of speed and appeared to be chasing him. The accused had previously run a business called Flames Auto at a different location and Mr. Lough had had dealings with him. The 84th St. location had a Calgary Flames flag at the entranceway but it's not clear whether there was signage with the name of Flames Auto on the new location, which was the name on a prior location. [ 21 ] Mr.

Lough observed 30 to 50 vehicles on the 84th St. lot without license plates. When he went a second time, he went on foot. The third time Mr. Lough went to the lot he went with Calgary Police Service and arrived at about 1:00 in the afternoon. The lot was empty but at 3:00 the accused came to the lot as a passenger in a vehicle and was served with a summons. Mr. Lough testified Universe Transportation was a name associated with the 84th St. location and was named in a number of bills of sale mentioned in several consumer complaints. There is no corporate listing for Universe Transportation. Dealings with Cst.

Lori St. Onge [ 22 ] Constable St. Onge is a part of the crime reduction team within District 5 of the Calgary Police Service. In October 2021 she interviewed the accused with respect to other charges not before the Court. She seized his cell phone and obtained a search warrant for its contents. Exhibit 12 is a record of text messages in which the accused identifies himself as Sam and as Michael. Both names were used by the accused in connection with the alleged fraud offence which Cst. St. Onge was investigating.

The text messages from the accused’s phone refer to the sale by the accused of various motor vehicles. These text messages corroborate the evidence of the Crown witness who testified the accused sold them motor vehicles. Analysis

[ 23 ] In making my findings of fact I have considered the evidence of the accused. He testified he is an automotive detailer and that he goes to people’s houses or dealerships to detail vehicles. He initially said he goes to lots where cars get sold but then said he does not currently do so. He testified that in 2021 he met Mohammed Bhuyan and Mohammed Rahman who were selling vehicles at the 84th St. lot.

He said he was invited by them to do detailing on cars at the 84th St. lot, but he was never involved with selling vehicles. [ 24 ] He denies signing bills of sale and testified his only dealings with customers at the 84th St. lot was when Rahman and Bhuyan weren’t there. Then he would tell customers to come back. He denies telling any customers about the kind of shape any vehicles were in. He denied meeting the Crown witnesses and testified the phone number on the bills of sale belonged to Bhuyan or Rahman.

He denied being present when the bills of sale before the Court were signed. [ 25 ] I reject the accused’s evidence and it has not caused me to doubt the facts I have found. There are three separate transactions by witnesses who do not know each other. They have all clearly identified the accused as the person they dealt with and who signed and completed the Bills of Sale relating to their vehicles. The accused misrepresented to Adrienne Kehler and Brandon Anderson that the vehicles they were purchasing were in good shape and had no major issues. In fact there were major issues with each vehicle.

Both vehicles sold to the buyers were completely unroadworthy. The vehicles only ran a couple of days before quitting completely. [ 26 ] There is also text message evidence in which the accused participates as a person directly involved in the sale of motor vehicles. This contradicts his evidence that he is merely a detailer.

Finally, all of the transactions before the Court took place after the accused had been ordered to cease the sale of motor vehicles in an Order dated March 22, 2019 issued by the Alberta Motor Vehicles Industry Council. [ 27 ] Counts 2, 6 and 10 of the Information allege the accused carried on the business of automotive sales without being licensed to do so. He in fact sold motor vehicles to Adrienne Kehler, Brandon Anderson, and Rodney Sibanda without being licensed to do so.

I find him guilty of Counts 2,6 and 10 in the Information. [ 28 ] Counts 3 and 7 allege the accused misled and deceived Adrienne Kehler and Brandon Anderson. The facts I have found show the accused both misled and deceived both purchasers by telling them the vehicles they were buying were in good shape when they were not roadworthy and had obvious issues which would prevent the vehicles from running for any length of time. I find the accused guilty of Counts 3 and 7. [ 29 ] Counts 5, and 13 allege the accused contravened the Order of March 22, 2019 issued by the Director of Fair Trading.

The accused was prohibited from entering into the business of selling motor vehicles at the time he sold vehicles to Adrienne Kehler, Brandon Anderson and Rodney Sibanda. I find the accused guilty of Counts 5,9 and 13 in the Information. Dated at the City of Calgary, Alberta this 22 nd day of November, 2023. S.L. Van de Veen A Justice of the Alberta Court of Justice Appearances: G. Whiteside for the Crown H. Sangha for the Accused