Registrar’s Decision

File Number: 13-08-001

In the matter of MOTOR DEALER ACT R.S.B.C. 1996 C.316
and BUSINESS PRACTICES AND CONSUMER PROTECTION ACT S.B.C. 2004 c.2

Complainant: MOTOR DEALER COUNCIL OF BRITISH COLUMBIA dba THE MOTOR VEHICLE SALES AUTHORITY OF BRITISH COLUMBIA

Licensee/Unlicensed person:

AUTOCANADA NORTHTOWN AUTO GP INC., a general partner of NORTHTOWN AUTO LP dba NORTHLAND CHRYSLER JEEP DODGE (Dealer #30541), FEDERICK BRENT MARSHALL (Salesperson # 105591) and MURRAY LEONARD CARLSON (Salesperson # 114143)

Issues:

• Frederick Brent Marshall applied for reconsideration of the Compliance Order and Notice of Administrative Penalty (the “Determinations”) issued to him by Acting Registrar Baker on August 31, 2015.
• The ground for reconsideration is that Mr. Marshall’s former lawyer was in a conflict of interest when he was co-representing Mr. Marshall and Northland. Mr. Marshall argues that due to this conflict, he did not receive proper legal representation and that the Determinations should be set aside to prevent an injustice from occurring.

Outcome:

• The Registrar denied the request for reconsideration as:
(a) The evidence Mr. Marshall sought to admit that may be substantial to the Determinations is covered by solicitor-client privilege and the Registrar is without authority to compel its disclosure.
(b) The communications covered by solicitor-client privilege were available during the hearing before Acting Registrar Baker, and Mr. Marshall could have sought their admission during or before the penalty phase of the hearing. Therefore, they are not new evidence as defined by subsection 182(2) of the BPCPA.
(c) There being no new evidence of a substantial nature to be considered, the preconditions of sub-section 182(2) of the BPCPA are not met and the Registrar could not cancel or vary the Determinations under that Act, even if reconsideration was completed.
(d) The common law authority of the Registrar to reconsider its decision for a breach of procedural fairness is limited to when the Registrar has not fairly completed its task. It does not include a review of a decision to determine if a conflict between a lawyer and their client may have affected the reasonableness of the decision. It also does not extend to a consideration of whether an “injustice” occurred as that term has been applied under the Criminal Code of Canada.
• The Determinations were re-instated in their entirety.
• The parties were allowed time to agree on costs or seek a hearing to settle costs.