Registrar's Decision

Compliance > Registrar’s Decisions > Registrar’s Decision 20-09-004

Registrar's Decision 20-09-004

File Number: 20-09-004

In the Matter of the Motor Dealer Act,
and the Business Practices and Consumer Protection Act
and the Salesperson Licensing Regulation

Complainant: The Vehicle Sales Authority of B.C.

Licensee/Unlicensed person:
Brian D. Rowe (#106494)

Introduction

The Authority received a complaint from a consumer regarding the sale of a 2006 Honda Odyssey by a motor dealer. Upon investigation, it was determined that the dealer was not aware it had sold the Odyssey. It was determined that Brian D. Rowe posed as an authorized representative of the dealer when selling the Odyssey to the consumer. The Authority found another 15 vehicles sold by Mr. Rowe posing as two different dealers. One was the motor dealer who allegedly sold the Odyssey. Mr. Rowe had no prior connection with that dealer. The second dealer was a closed motor dealer where Mr. Rowe had been previously employed.

Allegations

The Authority alleged that Brian D Rowe conducted the sale of 16 motor vehicles while posing as two different motor dealers and for violations of the following legislation:

Section 23(b)(ii) of the Motor Dealer Act Regulation (MDA-Reg) – failing to disclose damage over $2,000
Section 23(c) of the MDA-Reg – failing to disclose ex-lease and ex-rental
Section 23(d) of the MDA-Reg – failing to disclose the vehicle was formerly out of province
Section 33(2)(a) of the MDA-Reg [Code of Conduct] – failing to act with honesty and integrity
Section 33(2)(f) of the MDA-Reg [Code of Conduct] – adversely affecting the reputation another
Sections 4(3)(b)(i) and (vi) and 5 of the Business Practices and Consumer Protection Act (BPCPA) – committed a deceptive act or practice
Section 8(3)(b) and 9 of the BPCPA – committed an unconscionable act or practice.

Key factual and legal findings

Main factual findings

Brian D. Rowe was found to have sold the 16 vehicles while posing as the two different dealers.
Brian D. Rowe was found to have used the information of the dealership he used to work at to his advantage when carrying out some of the sales.
Contraventions of sections 23(b)(ii), (c) and (d) of the MDA-Reg
The allegations that Mr. Rowe failed to make the required declarations under the Motor Dealer Act Regulation were dismissed. The legislation requires the disclosures be made on the purchase agreement and no purchase agreements were in evidence. The ICBC Transfer/Tax form (APV9T) is a document created by ICBC under its authority in the Motor Vehicle Act, to transfer ownership of a vehicle and collect taxes. It is not a purchase agreement contemplated by the Regulation.
Contraventions of sections 33(2)(a) and (f) of the MDA-Reg [Code of Conduct]
Brian D. Rowe was found in breach of the Code of Conduct by acting dishonestly and without integrity. The evidence fell short of proving Mr. Rowe’s conduct negatively impacted the reputation of another licensee, the Authority or the Registrar. The fact that Mr. Rowe posed as a dealer’s representative does not automatically mean he negatively impacted that dealer’s reputation. There must be some evidence of a negative impact occurring.
Contravened sections 4(3)(b)(i), (vi) and 5 of the BPCPA – deceptive act or practice
Mr. Rowe was found to have misrepresented his status as an authorized representative of a dealer in respect of the Odyssey consumer transaction. The consumer’s evidence made it clear that they believed they had bought the Odyssey from a licensed dealer, when they had not. This type of misrepresentation is deemed to be a deceptive act or practice on the part of Mr. Rowe.
Contravened sections 8(3)(b) and 9 of the BPCPA – unconscionable act or practice
This allegation was dismissed against Mr. Rowe. A finding of an unconscionable act or practice is by assessing the transaction as a whole. Section 8(3)(b) of the BPCPA is only one of the many factors to consider. The fact that Mr. Rowe committed wrongful conduct does not automatically lead to a finding that the transaction was unconscionable. There was no evidence from the consumer’s that Mr. Rowe took advantage of them and that the transactions were materially divergent from other similar transactions to render them commercially immoral

Outcome

Mr. Rowe’s salesperson licence was cancelled.
The Registrar considered other similar cases and Mr. Rowe’s conduct. Mr. Rowe showed no remorse or signs of rehabilitation. Mr. Rowe did not fully participate in the investigation and chose not to participate in the hearing process bringing his governability into question. These facts plus Mr. Rowe’s dishonest conduct showed he could not be trusted to be compliant in the future. Mr. Rowe’s licence was canceled in order to protect the public.
The Registrar allowed the Authority to make further submissions on costs.

Legislation cited

Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2; sections 4, 5, 8, 9 and 155
Judicial Review Procedure Act, R.S.B.C. 1996, c. 241
Motor Dealer Act, R.S.B.C. 1996, c. 316; sections 7.1, 26.04, 26.11, 26.12, 30 and 30.1
Motor Dealer Act Regulation, B.C. Reg. 447/78; sections 23 and 33
Motor Vehicle Act, R.S.B.C. 1996, c. 318
Salesperson Licensing Regulation, B.C. Reg. 202/2017; sections 7 and 8

CASE CITED

Cambie Hotel (Nanaimo) Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2006 BCCA 119 (BC Court of Appeal).
F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41 (Supreme Court of Canada)
Fryer v. Motor Vehicle Sales Authority of British Columbia, 2015 BCSC 279 (BC Supreme Court)
Independent Investigations Office of British Columbia v Vancouver (City) Police Department, 2018 BCSC 1804 (BC Supreme Court), affirmed by Independent Investigations Office of British Columbia v. Vancouver (City) Police Department, 2020 BCCA 4 (BC Court of Appeal)
Motor Vehicle Sales Authority of B.C. v. Barnes Wheaton et al (April 16, 2020, File 19-07-004, Registrar)
Pacific International et al v. B.C. Securities Commission 2002 BCCA 421 (B.C. Court of Appeal)
Parsons v. Zagrodzki 2005 BCPC 0384 (B.C. Provincial Court)
Re: Best Import Auto Ltd. et al (November 28, 2017, Hearing File 17-08-002, Registrar) varied in Best Import Auto Ltd. v Motor Dealer Council of British Columbia, 2018 BCSC 834 (BC Supreme Court).
Re: Bob Shokohi (October 12, 2018, 18-06-005, Registrar)
Re: Carmel Custom Contracting Ltd. & Jason Coburn (April 5, 2018, 18-03-001, Registrar)
Re: Justin Plosz (October 22, 2019, 19-05-004, Registrar) reconsideration denied (April 9, 2020)
Re: Tibbo (October 16, 2020, Hearing File 20-08-001, Registrar)

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