FILE NUMBER: 09-70032 & 09-70389

HEARING DATE: April 12, 2010

IN THE MATTER OF THE MOTOR DEALER ACT R.S.B.C.1996 C.316 AND
THE BUSINESS PRACTICES AND CONSUMER PROTECTION ACT S.B.C. 2004 c.2

COMPLAINANT: DAVINDER KAUR SAINI

MOTOR DEALER and/or SALESPERSON: 68323 B.V. LTD. d.b.a LENUX MOTOR CARS (Dealer #30116) AND HOSSEIN (TONY) DARVAZEBAN (Salesperson #108297) AND PIERRE PAYANT (Salesperson #108011)

COMPLAINANT: : KRISTIN DUMONT

MOTOR DEALER and/or SALESPERSON: CAL NATIONAL LEASING LTD. (Dealer #30115) AND 68323 B.V. LTD. d.b.a LENUX MOTOR CARS (Dealer #30116) AND HOSSEIN (TONY) DARVAZEBAN (Salesperson #108297)

THIS IS A PRELIMINARY DECISION

ISSUE:

• The dealer and salespeople claimed their right to counsel under the Charter of Rights and Freedoms was violated during the investigation.
• The dealer and salespeople also claimed violations of their Charter rights against self-incrimination.
• The dealer and salespeople also claimed a breach of their Charter right against unlawful search and seizure.
• Alternatively, the dealer and salespeople claimed these breaches were contrary to procedural fairness and natural justice.

OUTCOME:

• • The Charter protects against the state’s use of power to investigate for penal liability and to impose penal sanctions: R v. Jarvis [2002] 3 S.C.R. 757 (Supreme Court of Canada).
  • Penal sanctions mean imprisonment or a fine of such magnitude that it addresses the wrong done to society as a whole: R v. Wigglesworth [1987] 2 S.C.R. 541 (Supreme Court of Canada).
  • Canceling a license or imposing nominal administrative penalties within a regulated field are not penal sanctions: Wigglesworth.
  • A regulatory investigation under the Motor Dealer Act scheme is not the pursuit of penal sanctions and the Charter will generally not be engaged: Jarvis.
  • As a corporation, Lenux does not hold rights under sections 7 (right against self-incrimination) and 10 (right to counsel) of the Charter: Irwin Toy Ltd. v. Quebec (Procureur Général) [1989] 1 S.C.R. 937 (Supreme Court of Canada); and Canadian Egg Marketing Agency v. Richardson [1998] 3 S.C.R. 157 (Supreme Court of Canada).
  • A review of the facts makes it clear that the claims by the complainants are civil proceedings and the Charter does not apply to civil proceedings: Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580 [1986] 2 S.C.R. 573 (Supreme Court of Canada).
  • A review of the facts makes it clear penal sanctions are not being pursued by the Authority and the Charter is not applicable: Jarvis.
  • A regulated person has no reasonable expectation of privacy in their business records such that the Charter offers them protection: British Columbia Securities Commission v. Branch [1995] 2 S.C.R. 3 (Supreme Court of Canada).
  • There is no right to legal representation at the investigative stage and only a limited right at the adjudicative stage (depending on the facts) under the common law, which includes procedural fairness and natural justice: Christie v. British Columbia (Attorney General), [2007] 1 S.C.R. 873 (Supreme Court of Canada) and New Brunswick v. G. (J.), [1999] 3 S.C.R. 46 (Supreme Court of Canada).
  • Under the Motor Dealer Act scheme, the right to know the case to be met applies at the adjudicative stage before the Registrar and not to the investigation stage of a proceeding. At the investigative stage, the person only needs to know the nature of the complaint being investigated, if there is a complaint: Strauts v. College of Physicians & Surgeons (British Columbia) 1997 CarswellBC 1403 (B.C. Court of Appeal).
  • The Charter was not applicable to these cases and there was no breach of procedural fairness and natural justice.
  • The motions to dismiss the claims were dismissed.

  COMPLETE DECISION: File 09-70032 & 09-70389 Hearing Decision File Saini & Dumont v Lenux et al May 3, 2010
  

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