VSA

Registrar's Decision

Registrar's Decision 20-03-001

HEARING FILE NUMBER: 20-03-001

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

DATE OF DECISION: September 8, 2021
COMPLAINANT: Vehicle Sales Authority of BC (the “Authority”)

LICENSEE:

LGN Enterprises Inc. dba Auto Clearance Centre, A&A Auto Sales Ltd. dba Auto Clearance Downtown Hastings, and Aykut (Alex) Bilgin (collectively, the “Respondents”)

INTRODUCTION:
The Respondents applied to have this hearing dismissed and an order for their costs. The basis of that application involved the B.C. Supreme Court action of Law Society of British Columbia v Loraine Lee (SCBC #S214739, Vancouver Registry) (the “Law Society Action”). The Respondents state that certain statements made by Loraine Lee in the Law Society Action, that any legal services she provided was at all times supervised by Ian Christman, the Registrar, raises the appearance of bias in this case. This the Respondent’s say, is because Loraine Lee advanced a legal argument in this case that the Registrar ultimately adjudicated upon. The appearance is that the Registrar advanced the legal argument and then adjudicated on that legal argument.

The Respondent’s also state that the reporting relationship between Loraine Lee and the Registrar, while she was at the Authority, gives rise to the appearance of bias. This latter bias is often called institutional bias.

ISSUES:

  1. Was there institutional bias requiring the Registrar to recuse themselves from this hearing?
  2. Was there an apprehension of bias due to the Registrar overseeing the legal work of Loraine Lee?

OUTCOME
Institutional bias and a claim of an apprehension (appearance) of bias is a common law (judge made law) rule. A constitutionally valid statute may allow what the common law prohibits. The overlapping of the Registrar’s functions and the required supervision is authorized by the Motor Dealer Act. To accede to the Respondents’ legal argument would mean the common law prohibits the Registrar from carrying out their statutory duties, which is legally incorrect. The Respondent’s argument that an apprehension (appearance) of bias arises due to institutional bias was dismissed.
The evidence shows that the Registrar believed that Loraine Lee was a licensed lawyer and member of the Law Society of B.C. when she submitted legal argument in this case. The Registrar also noted that they did not participate in the preparation of that legal argument. That said, the specific circumstances of this case as detailed in the decision, could lead a reasonable person to have some doubt.
The Registrar considered and applied the legal principles stated in Wewaykum Indian Band v. Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259 (Supreme Court of Canada) to the facts in this case. The Registrar found on the unique facts of this case, that a reasonable person thinking the matter through would say that there could be the appearance of bias.
The Registrar recused themselves from this case, declared a mishearing and directed this matter be brought before another adjudicator.

LEGISLATION CITED
Motor Dealer Act, R.S.B.C. 1996, c. 316

CASES CITED

  • Boardwalk Reit LLP v. Edmonton (City) , 2008 ABCA 176 (Alberta Court of Appeal)
  • Brosseau v. Alberta (Securities Commn.), [1989] 1 S.C.R. 301 (Supreme Court of Canada)
  • Crown Auto Body and Auto Sales Ltd. v. British Columbia (Motor Vehicle Sales Authority), [2014] B.C.J. No. 996, 2014 BCSC 894 (BC Supreme Court)
  • Liszkay v. Robinson 2003 BCCA 506 (BC Court of Appeal)
  • McOuat v. Law Society of British Columbia, [2001] B.C.J. No. 256, 2001 BCCA 104 (B.C. Court of Appeal); leave to appeal refused: [2001] S.C.C.A. No. 177 (Supreme Court of Canada)
  • Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 S.C.R. 781 (Supreme Court of Canada)
  • Re Forum National, 2020 BCSECCOM 316 (BC Securities Commission)
  • Team Transport v. Klair, 2007 BCSC 1394 (BC Supreme Court)
  • Wewaykum Indian Band v. Canada , 2003 SCC 45 (CanLII), [2003] 2 SCR 259 (Supreme Court of Canada)

Authors Cited

  • Mullan, David J. “Administrative Law” (Ontario: Irwin Law, 2001)