R.R.O. 1990, Reg. 801: GENERAL
under Motor Vehicle Dealers Act, R.S.O. 1990, c. M.42
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Motor Vehicle Dealers Act
R.R.O. 1990, REGULATION 801
Amended to O. Reg. 23/05
GENERAL
Historical version for the period February 3, 2005 to July 29, 2005.
This is the English version of a bilingual regulation.
CONTENTS
Sections | ||
1 | ||
2 | ||
3-12 | ||
13 | ||
14 | ||
15-17 | ||
18-19 | ||
20 | ||
21 | ||
Terms of compensation fund |
1-25 | |
Bond of a guarantee company approved under the guarantee companies securities act |
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Bond of guarantor other than guarantee company |
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Personal bond |
Registration
1. (1) An application for registration as a motor vehicle dealer or its renewal shall be in a form provided by the Minister. R.R.O. 1990, Reg. 801, s. 1 (1).
(2) An application for registration as a salesperson or its renewal shall be in a form provided by the Minister. R.R.O. 1990, Reg. 801, s. 1 (2).
(3) A notice by a motor vehicle dealer under clause 17 (1) (a), (b), (c) or (d) of the Act shall be in a form provided by the Minister. R.R.O. 1990, Reg. 801, s. 1 (3).
(4) A notice by a salesperson under subsection 17 (2) of the Act shall be in a form provided by the Minister. R.R.O. 1990, Reg. 801, s. 1 (4).
(5) A request for voluntary cancellation of registration under subsection 7 (7) of the Act shall be in a form provided by the Minister. R.R.O. 1990, Reg. 801, s. 1 (5).
2. Fees payable to the Registrar are as follows:
1. |
Upon application for registration as a motor vehicle dealer or renewal of the registration: |
|
i. beginning on the 1st day of January, 1992 to and including the 31st day of December, 1992 |
$225.00 | |
ii. beginning on the 1st day of January, 1993 to and including the 31st day of December, 1993 |
250.00 | |
iii. beginning on the 1st day of January, 1994 |
275.00 | |
2. |
For each branch office of a motor vehicle dealer: |
|
i. beginning on the 1st day of January, 1992 to and including the 31st day of December, 1992 |
225.00 | |
ii. beginning on the 1st day of January, 1993 to and including the 31st day of December, 1993 |
250.00 | |
iii. beginning on the 1st day of January, 1994 |
275.00 | |
3. |
Upon application for registration as a salesperson or renewal of the registration: |
|
i. beginning on the 1st day of January, 1992 to and including the 31st day of December, 1992 |
125.00 | |
ii. beginning on the 1st day of January, 1993 to and including the 31st day of December, 1993 |
150.00 | |
iii. beginning on the 1st day of January, 1994 |
175.00 |
O. Reg. 693/91, s. 1.
3. (1) Every application for registration as a motor vehicle dealer or a salesperson shall be accompanied by the appropriate fee set out in section 2 and in the case of a motor vehicle dealer who registers,
(a) on or before the 30th day of June, 1986, by a bond as set out in subsection (2); or
(b) on or after the 1st day of July, 1986, by the payment set out in subsection 10 (1) of the Schedule. R.R.O. 1990, Reg. 801, s. 3 (1).
(2) The bond shall be in the amount of $5,000 and shall be,
(a) the bond of a guarantee company approved under the Guarantee Companies Securities Act;
(b) a personal bond accompanied by collateral security; or
(c) the bond of a guarantor, other than a guarantee company, accompanied by collateral security. R.R.O. 1990, Reg. 801, s. 3 (2).
(3) The classes of negotiable security that may be accepted as collateral security for a bond are:
(a) bonds issued or guaranteed by Canada; or
(b) bonds issued or guaranteed by any province of Canada. R.R.O. 1990, Reg. 801, s. 3 (3).
(4) The collateral security referred to in subsection (2) shall be deposited with the Minister of Finance and maintained at a market value of not less than the face value of the bond. R.R.O. 1990, Reg. 801, s. 3 (4).
(5) The bond referred to in subsection (1) shall be in Form 1, Form 2 or Form 3, as the case may be. R.R.O. 1990, Reg. 801, s. 3 (5).
4. A bond may be cancelled by any person bound by it by giving to the Registrar and the motor vehicle dealer named in the bond, at least two months notice in writing of intention to cancel and, subject to section 5, the bond shall be deemed to be cancelled on the date stated in the notice, which date shall be not less than two months after the receipt of the notice by the Registrar. R.R.O. 1990, Reg. 801, s. 4.
5. For the purpose of every act or omission occurring,
(a) during the period of registration; or
(b) during the period prior to cancellation of the bond under section 4 where there has been no termination of registration,
every bond shall continue in force and the collateral security, if any, shall remain on deposit for a period of two years following the termination of the registration or the cancellation of the bond, as the case may be. R.R.O. 1990, Reg. 801, s. 5.
6. Where a bond has been cancelled or the registration has been terminated, and the bond has not been forfeited, the Minister of Finance may, two years following the termination of the registration to which the bond relates or two years after the cancellation of the bond, deliver the collateral security to the person who deposited the security. R.R.O. 1990, Reg. 801, s. 6.
7. The Registrar may declare any bond mentioned in section 3 forfeited,
(a) where a motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, has been convicted of,
(i) an offence under the Act, or
(ii) an offence involving fraud or theft or conspiracy to commit an offence involving fraud or theft under the Criminal Code (Canada), and the conviction has become final;
(b) where proceedings by or in respect of a motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, have been taken under the Bankruptcy Act (Canada), either by way of assignment, or by petition, or where proceedings have been taken by way of winding-up, and in the case of a petition, a receiving order under the Bankruptcy Act (Canada), or a winding-up order has been made, and the order has become final;
(c) where a judgment based on a finding of fraud has been given against a motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned and the judgment has become final; or
(d) where judgment has been given against a motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, on any claim arising out of a transaction involving a motor vehicle, other than a judgment against the motor vehicle dealer in favour of a salesperson or other motor vehicle dealer, and the judgment has remained unsatisfied for a period of ninety days,
and at that time the amount of the bond becomes due and owing by the person bound by it as a debt due the Crown in right of Ontario. R.R.O. 1990, Reg. 801, s. 7.
8. Where a bond secured by the deposit of collateral security is forfeited under section 7, the Minister of Finance may sell the collateral security at the current market price. R.R.O. 1990, Reg. 801, s. 8.
9. Where the Crown in right of Ontario becomes a creditor of a person in respect of a debt to the Crown arising from the provisions of section 7, the Registrar may take such proceedings as he or she sees fit under the Bankruptcy Act (Canada), the Courts of Justice Act, the Business Corporations Act or the Winding-up Act (Canada) for the appointment of an interim receiver, custodian, trustee, receiver or liquidator, as the case may be. R.R.O. 1990, Reg. 801, s. 9.
10. (1) The Minister of Finance may in his or her discretion,
(a) assign any bond forfeited under section 7 and transfer the collateral security, if any;
(b) pay over any money recovered under the bond;
(c) pay over any money realized from the sale of the collateral security under section 8,
to any person who,
(d) is a judgment creditor of any motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, where the judgment was based on a claim arising out of a transaction involving a trade in a motor vehicle;
(e) in respect of a claim for less than $100 against any motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, arising out of a transaction involving a trade in a motor vehicle, satisfies the Registrar as to the validity of the claim; or
(f) has proven a claim in bankruptcy against any motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond has been conditioned, in respect of any claim arising out of a transaction involving a trade in a motor vehicle,
if the claim or transaction occurred during the period referred to in clause 5 (a) or (b). R.R.O. 1990, Reg. 801, s. 10 (1).
(2) The Minister of Finance may, where he or she considers it advisable, without any order, pay the whole or any part of the proceeds referred to in clause (1) (b) or (c) to the accountant of the Ontario Court (General Division) in trust for the persons that are or may become entitled to share in the proceeds of the bond under the provisions of subsection (1). R.R.O. 1990, Reg. 801, s. 10 (2).
11. Where a bond has been forfeited and the Minister of Finance has not received notice in writing of any claim against the proceeds of the bond or the part that remains in his or her hands within two years of the forfeiture, the Minister of Finance may pay the proceeds of the bond or the collateral security, or any part remaining, to any person who made a payment under the bond or who deposited the collateral security, after first deducting the amount of any expenses that have been incurred in connection with any investigation or otherwise relating to the motor vehicle dealer, including any member of a partnership, in respect of whose conduct the bond was conditioned. R.R.O. 1990, Reg. 801, s. 11.
12. Nothing in this Regulation affects the rights or obligations of any person under a salesperson’s bond issued before the 5th day of March, 1971. R.R.O. 1990, Reg. 801, s. 12.
Terms and Conditions of Registration
13. (1) Every registration expires on the date shown on the certificate of registration unless an application for renewal of registration in a form provided by the Minister, together with the appropriate fee prescribed in section 2, is filed with the Registrar prior to the date of expiry. R.R.O. 1990, Reg. 801, s. 13 (1).
(2) Where an application is made for renewal on or after the 1st day of July, 1986, the payment set out in subsection 10 (1) of the Schedule shall accompany the application. R.R.O. 1990, Reg. 801, s. 13 (2).
(3) Every registration is conditional for a sixty-day period following registration pending verification of the registrant’s application. R.R.O. 1990, Reg. 801, s. 13 (3).
(4) It is a condition of registration as a motor vehicle dealer that the motor vehicle dealer,
(a) operates from premises located in Ontario that are approved by the Registrar;
(b) has an office for the conduct of business at each premises where the motor vehicle dealer operates; and
(c) has erected at each premises where the motor vehicle dealer operates, a sign that is clearly visible to the public that identifies the motor vehicle dealer’s registered name. R.R.O. 1990, Reg. 801, s. 13 (4).
(5) Every motor vehicle dealer shall, within five days after the event, notify the Registrar in a form provided by the Minister of any change in the location of the dealer’s place or of any of the dealer’s places of business. R.R.O. 1990, Reg. 801, s. 13 (5).
(6) Where the motor vehicle dealer is a corporation, it shall, within five days after the event, notify the Registrar in a form provided by the Minister where there is a change in a director of the corporation or where there is a change in its controlling interest. R.R.O. 1990, Reg. 801, s. 13 (6).
(7) Every motor vehicle dealer shall maintain a repair facility or have a continuing agreement with an authorized repair garage whereby the owner of the garage agrees to carry out repairs on behalf of the motor vehicle dealer. R.R.O. 1990, Reg. 801, s. 13 (7).
(8) Where the registration of a motor vehicle dealer is revoked, suspended or cancelled or, where the dealer has voluntarily gone out of business, the motor vehicle dealer shall immediately return the dealer’s certificate of registration to the Registrar by registered mail. R.R.O. 1990, Reg. 801, s. 13 (8).
(9) Where the registration of a salesperson is revoked, suspended or cancelled or, where he or she no longer intends to be employed as a salesperson, the salesperson shall immediately return his or her certificate of registration to the Registrar by registered mail. R.R.O. 1990, Reg. 801, s. 13 (9).
(10) Where a salesperson has not applied for a transfer of registration within sixty days of termination of his or her employment, and where he or she intends to continue as a salesperson, he or she shall apply for registration by filing an application in a form provided by the Minister, together with the appropriate fee prescribed in section 2. R.R.O. 1990, Reg. 801, s. 13 (10).
(11) The Registrar may require further information or material to be submitted by any applicant or any registrant within a specified time limit and may require verification by affidavit or otherwise of any information or material then or previously submitted. R.R.O. 1990, Reg. 801, s. 13 (11).
(12) Where the motor vehicle dealer is an individual or partnership, it shall, within five days after the event, notify the Registrar in writing of the name of any other person who has invested money in or who may have assumed partial or complete control of the motor vehicle dealer. R.R.O. 1990, Reg. 801, s. 13 (12).
(13) Where a notice of intention to cancel a bond has been served on the Registrar under section 4 and the bond has been cancelled on the date stated in the notice, the registration of the motor vehicle dealer shall no longer be valid unless prior to that date a replacement bond has been received by the Registrar. R.R.O. 1990, Reg. 801, s. 13 (13).
(14) No motor vehicle salesperson shall be registered to more than one motor vehicle dealer at the same time unless the controlling interest in any other motor vehicle dealer by which the motor vehicle salesperson is employed is held by the motor vehicle dealer to whom the motor vehicle salesperson is registered. R.R.O. 1990, Reg. 801, s. 13 (14).
14. The following classes of persons are exempt from the Act:
1. A person who purchases motor vehicles for the purpose of wrecking or dismantling them and not for resale.
2. A person who conducts auctions for registered motor vehicle dealers if the person has no property interest in the motor vehicles being sold and sales are made only to registered motor vehicle dealers.
3. An assignee, custodian, liquidator, receiver, trustee or other person acting under the Bankruptcy Act (Canada), the Business Corporations Act, the Courts of Justice Act, or the Winding-up Act (Canada) or a person acting under the order of any court or an executor or trustee who sells a motor vehicle in the course of the person’s duties.
4. A barrister and solicitor where the sale of a motor vehicle is made in the course of his or her practice.
5. A person who, on his or her own account, sells his or her own motor vehicle that was purchased and used for his or her personal or family use.
6. A leasing company that is a subsidiary or an associate of a registered motor vehicle dealer, if the leasing company has filed with the Registrar a declaration that all lease-expired vehicles will be sold through the registered motor vehicle dealership and not offered to the public by the leasing company.
7. A person who sells a power-assisted bicycle equipped with a pedalling device having an auxiliary motor attached and who is not otherwise engaged in the business of buying or selling motor vehicles. R.R.O. 1990, Reg. 801, s. 14.
15. Every motor vehicle dealer shall, with respect to the purchase or sale of a motor vehicle, maintain for a period of two years from the date of expiry of any warranty or service plan covering the vehicle all purchase orders, sales orders and written records of all transactions resulting in the purchase or sale of the motor vehicle and in the case of a used motor vehicle,
(a) a complete record of any reconditioning or other work performed on the vehicle that includes the date and particulars of the work done, repair orders and the cost of the work done; and
(b) the details and cost of any inspection conducted under Regulation 611 of the Revised Regulations of Ontario, 1990 (Safety Inspections). R.R.O. 1990, Reg. 801, s. 15.
16. (1) Where a new motor vehicle is sold, the sales or purchase order shall show,
(a) the name and address of the purchaser;
(b) the date of the sale;
(c) the make of the vehicle;
(d) the model year;
(e) the manufacturer’s serial number;
(f) the body type;
(g) the manufacturer’s suggested retail price;
(h) an itemized list of the manufacturer’s suggested retail price of all extra equipment to be sold to the purchaser or installed by the motor vehicle dealer according to the agreement made at the time of the sale;
(i) the total manufacturer’s suggested retail price;
(j) the discount given, if any;
(k) the sale price;
(l) the down payment or deposit, if any;
(m) the balance to be paid by the purchaser;
(n) an itemized list of the cost of any other charges for which the purchaser is responsible, such as insurance and licence fees; and
(o) if the balance is to be financed, the information that a lender is required to give to a borrower, before giving the credit, under section 24 of the Consumer Protection Act, together with a notation that the section has been complied with. R.R.O. 1990, Reg. 801, s. 16 (1).
Note: On July 30, 2005, clause (o) is revoked and the following substituted:
(o) if the balance is to be financed, the information that a lender is required to give to a borrower under section 79 of the Consumer Protection Act, 2002, together with a notation that the section has been complied with.
See: O. Reg. 23/05, ss. 1 (1), 2.
(2) Where a used motor vehicle is sold, the sales or purchase order shall show,
(a) the name and address of the purchaser;
(b) the date of sale;
(c) the make of vehicle;
(d) the model year;
(e) the manufacturer’s serial number;
(f) the body type;
(g) the licence plate number;
(h) the sale price;
(i) an itemized list of the cost of all extra equipment sold to the purchaser and to be installed by the motor vehicle dealer according to the agreement made at the time of sale;
(j) the total sale price;
(k) the down payment or deposit, if any;
(l) the balance to be paid by the purchaser;
(m) an itemized list of the cost of other charges for which the purchaser is responsible such as insurance and licence fees;
(n) if the balance is to be financed, the information that a lender is required to give to a borrower, before giving the credit, under section 24 of the Consumer Protection Act, together with a notation that the section has been complied with;
Note: On July 30, 2005, clause (n) is revoked and the following substituted:
(n) if the balance is to be financed, the information that a lender is required to give to a borrower under section 79 of the Consumer Protection Act, 2002, together with a notation that the section has been complied with;
See: O. Reg. 23/05, ss. 1 (2), 2.
(o) the distance travelled by the vehicle at the time of sale; and
(p) an itemized list of any repairs to be effected and their cost, if any. R.R.O. 1990, Reg. 801, s. 16 (2); O. Reg. 283/92, s. 1.
(3) Where a used motor vehicle is purchased or traded in, the sales or purchase order shall show,
(a) the name and address of the last registered owner;
(b) the date of purchase;
(c) the description of the vehicle as required in clauses (1) (c), (d), (e) or (f);
(d) the licence number;
(e) the purchase price or trade-in allowance;
(f) a statement obtained from the previous owner as to whether the vehicle has previously been used as a taxicab or a police cruiser; and
(g) the recorded odometer reading at the time of purchase or trade-in. R.R.O. 1990, Reg. 801, s. 16 (3).
(4) All sales orders or purchase orders referred to in this section shall also show,
(a) the name and signature of the person accepting the order on behalf of the motor vehicle dealer;
(b) the name and signature of the salesperson; and
(c) the salesperson’s registration number. R.R.O. 1990, Reg. 801, s. 16 (4).
(5) Where there is no warranty or guarantee in respect of the used motor vehicle, this shall be clearly stated on the face of the sales order. R.R.O. 1990, Reg. 801, s. 16 (5).
(6) Where a sale or purchase of a new or used motor vehicle includes as an option an extended warranty or service plan, that part of the sales or purchase order that deals with the warranty or plan shall show,
(a) the price of the warranty or plan;
(b) the extent of the coverage of the warranty or plan; and
(c) where the dealer is liable under the warranty or plan and the warranty or plan is not guaranteed or underwritten by a licensed insurer or provided by the manufacturer,
(i) the rights of the purchaser and the procedures to be taken in the event of a dealer going out of business or failing to honour the warranty or plan,
(ii) that the warranty or plan only covers claims incurred prior to the dealer going out of business and that any subsequent claims are to be made against the Fund,
(iii) that where a dealer goes out of business the purchaser is only entitled to the return of non-earned premiums from the Fund, and
(iv) the provision that is made for the mediation, adjustment and settlement of disputes between the purchaser and the insurer. R.R.O. 1990, Reg. 801, s. 16 (6).
(7) A duplicate original copy of the sales order of a motor vehicle with the original signature of the purchaser on it shall be given to the purchaser when the order is accepted by the motor vehicle dealer. R.R.O. 1990, Reg. 801, s. 16 (7).
17. Where a motor vehicle dealer arranges for the financing of the balance shown on the sales order of a motor vehicle, the dealer shall complete the negotiable instrument, conditional sales agreement, chattel mortgage, or other security instrument, before delivery of the motor vehicle is made and the terms of financing shall not vary from the particulars shown on the sales order unless all the changes are made with the full knowledge and consent of the purchaser. R.R.O. 1990, Reg. 801, s. 17.
18. (1) Every advertisement placed by or on behalf of a motor vehicle dealer shall identify the name under which the motor vehicle dealer is registered and the address of the premises from which the dealer is authorized to operate. R.R.O. 1990, Reg. 801, s. 18 (1).
(2) No motor vehicle dealer shall advertise or offer for sale any motor vehicle that has been used as a taxicab or police cruiser, without making this disclosure in the advertisement or the offer for sale. R.R.O. 1990, Reg. 801, s. 18 (2).
(3) No motor vehicle dealer shall refer in any advertisement or offer for sale of a motor vehicle to the motor vehicle as being a company car, an executive car, or a demonstrator unless the car was used by the motor vehicle dealer in the course of the dealer’s normal operation and had been acquired by the motor vehicle dealer as a new automobile. R.R.O. 1990, Reg. 801, s. 18 (3).
19. (1) Except in the case of an exchange or repair of an odometer and subject to subsection (2), no motor vehicle dealer or salesperson shall alter, adjust or permit any alteration or adjustment to the odometer on any motor vehicle in the dealer’s or salesperson’s possession or control in such a manner that as a result of the alteration or adjustment the total distance indicated on the odometer is other than the total distance travelled by the motor vehicle. R.R.O. 1990, Reg. 801, s. 19 (1).
(2) Where a motor vehicle dealer exchanges an odometer or effects any repairs to the odometer of a motor vehicle in the dealer’s possession or control or to any other part of the motor vehicle that is directly related to the odometer, the dealer shall record in the reconditioning record of that motor vehicle the reading in miles or kilometres that was on the odometer prior to the exchange or repair and shall ensure that the identical reading appears on the odometer of the motor vehicle after the exchanges or repairs have been effected. R.R.O. 1990, Reg. 801, s. 19 (2).
20. (1) Where a motor vehicle dealer receives funds in excess of $10,000 towards the purchase of a motor vehicle prior to the delivery of the motor vehicle, the entire amount received shall be deemed to be trust funds. R.R.O. 1990, Reg. 801, s. 20 (1).
(2) For the purposes of subsection (1), every motor vehicle dealer shall maintain a ledger account into which shall be entered the names and addresses of all persons from whom trust funds are obtained with details of the amounts retained and a record of all disbursements from them. R.R.O. 1990, Reg. 801, s. 20 (2).
(3) An entry in a ledger account referred to in subsection (2) shall be retained for a period of six years from the date of the entry. R.R.O. 1990, Reg. 801, s. 20 (3).
(4) Every motor vehicle dealer shall maintain in respect of all funds that come into the dealer’s hands in trust a separate trust account clearly designated as “The Motor Vehicle Dealers Act Trust Account” in a bank listed in Schedule I or II to the Bank Act (Canada), a loan or trust corporation, the Province of Ontario Savings Office or a credit union as defined in the Credit Unions and Caisses Populaires Act and into which the dealer shall deposit the funds and every motor vehicle dealer shall, at all times, keep the funds secure and make disbursements from the trust account in accordance with the terms of the trust. R.R.O. 1990, Reg. 801, s. 20 (4).
(5) Where trust funds are paid under subsection (1) whether by way of deposit, down payment or otherwise, on account of an undelivered motor vehicle, the motor vehicle dealer shall retain the funds in trust for the purchaser until,
(a) the motor vehicle is delivered;
(b) the contract is mutually cancelled; or
(c) direction or authority is received from the Registrar concerning disbursements. R.R.O. 1990, Reg. 801, s. 20 (5).
21. (1) Every registered motor vehicle dealer shall participate in the Fund. R.R.O. 1990, Reg. 801, s. 21 (1).
(2) A motor vehicle dealer who is not registered shall not participate in the Fund. R.R.O. 1990, Reg. 801, s. 21 (2).
SCHEDULE
TERMS OF COMPENSATION FUND
Definitions
1. In this Schedule,
“approved securities” means investments in which a trust corporation may invest under section 162 of the Loan and Trust Corporations Act; (“valeurs mobilières autorisées”)
“Board” means the Board of Trustees referred to in section 3 of this Schedule; (“conseil d’administration”)
“claim” means a claim for pecuniary loss arising out of a transaction involving a trade in a motor vehicle; (“demande d’indemnité”)
“claimant” means an applicant for payment out of the Fund and “application” has a corresponding meaning; (“auteur de demande”)
“customer” means a natural person but does not include a natural person, partnership or association of individuals acting in the course of carrying on business; (”client”)
“default” of or by a participant means a failure by the participant to meet any liability or obligation of the participant under this Schedule; (“défaut”)
“participant” means a registered motor vehicle dealer who participates in the Fund; (“participant”)
“Trustee” includes any successor Trustee appointed under subsection 19 (8) of this Schedule. (“fiduciaire”)
Fund Established
2. A compensation fund to be known as the Motor Vehicle Dealers Compensation Fund is hereby established.
Board of Trustees
3. Except for the duties and responsibilities of the Trustee under section 20 of this Schedule and of the Director under subsection 13 (1) of this Schedule, the affairs of the Fund shall be managed by a Board of Trustees appointed by the Lieutenant Governor in Council.
4. (1) The Board shall be appointed by the Lieutenant Governor in Council and shall be composed of not more than nine members and not less than five members, one of whom shall be designated by the Lieutenant Governor in Council as Chair and another as Vice-Chair.
(2) At least three members of the Board shall be members in good standing of the Ontario Automobile Dealers Association or the Used Car Dealers Association at the time of the appointment.
5. A member of the Board is disqualified from participating and shall not participate in any deliberation or decision of the Board with respect to any claim against a participant where the member is the participant or an officer or director of the participant or has a financial interest in the participant.
6. (1) A majority of the Board constitutes a quorum.
(2) The Board may pass by-laws with respect to the conduct of its business.
(3) The Board shall record its meetings by minutes.
(4) A member of the Board is entitled to compensation for so acting in an amount determined by the Lieutenant Governor in Council.
(5) All members of the Board are entitled to be paid reasonable expenses for attending meetings of the Board.
7. The situs of the Fund shall be in Ontario at all times and the property and interest comprising the Fund shall be held at all times by the Trustee in Ontario.
8. (1) The Board may employ or retain or authorize the employment of such counsel, accountants or other experts or advisors as it may reasonably require to assist in maintaining and protecting the corpus of the Fund and the Board may act and shall be protected where it acts in good faith on the opinion or advice of or information from any of them and shall not be responsible for any misconduct on the part of any of them.
(2) The Board may, in its discretion, employ or authorize the employment of such persons to act as claims officers and clerks as it may reasonably require to assist in the efficient consideration and resolution of claims and operation of the Fund.
(3) Where the Board employs persons under subsection (1) or (2), all fees, costs and expenses incurred in their employment shall be paid by the Trustee and shall be deducted first from the income of the Fund and, in the event of any deficiency, from the capital of the Fund.
Payments from Participants
9. The capital of the Fund shall be composed of the payments of the participants contributed in the manner set out in section 10 of this Schedule.
10. (1) A motor vehicle dealer shall pay $300 to the Fund upon registration under the Act.
(2) In addition to the payment referred to in subsection (1), where at any time on or after the 1st day of October, 1986, the book value of the Fund is less or is anticipated to be less than $1,500,000 by reason of a proposed payment or payments by the Fund to one or more claimants, the Trustee may in its discretion require each participant to pay such additional amount as the Trustee determines is necessary to bring the level of the Fund up to at least $1,500,000 and each participant shall pay the additional amount within twenty-one days of the notice of the required payment.
Compensation Fund
11. (1) All money received by the Trustee from participants or others under this Schedule and all income on any such money including any rights or benefits occurring from the investment of such money shall be held in trust for the benefit of such of the holders of claims as the Board may from time to time in its discretion approve as provided in this Schedule and all such money and income shall constitute the Fund to be dealt with and distributed in accordance with this Schedule.
(2) The Trustee shall maintain a record of payments of other amounts received from, on behalf of or in respect of each participant and all the payments of amounts shall be credited to a participant or participants and the Trustee’s decision in respect of the crediting is final.
(3) No credit of a payment or amount to the Fund with respect to a participant gives the participant any right to that payment or amount or any part of it.
(4) The Trustee shall keep the Fund invested in approved securities.
(5) The Trustee shall collect and receive all income from the Fund and shall, after deducting the fees, costs, taxes, charges and expenses referred to in section 21 of this Schedule, invest the balance of the income in approved securities in accordance with the provisions of section 20 of this Schedule.
(6) The Trustee shall keep records of all transactions referred to in this section with respect to its administration of the Fund and the records shall be based on a fiscal year ending with the 31st day of October.
(7) A copy of the financial statements of the Fund certified by the Trustee shall be delivered to each member of the Board and the Registrar within thirty days after the end of each fiscal year or as soon thereafter as is reasonably possible.
(8) The statement referred to in subsection (7) shall include, where applicable, at least the following information:
1. The amount owing under this Schedule by any participant to the Trustee that has not been paid when due.
2. The amount of all receipts and their sources.
3. The amount of all payments on behalf of participants.
4. A statement of all receipts and disbursements for claims in respect of each participant who was in default during the fiscal period to which the statements relate.
5. A statement of all credits and debits to the capital of the Fund.
6. A complete statement of all fees, costs, charges and expenses paid from the income or capital of the Fund or owing by the Fund for expenses incurred during that fiscal period.
7. Such other information in addition to that set out in paragraphs 1 to 6 with respect to the Fund as the Board or Registrar may from time to time require.
(9) The Trustee shall provide a quarterly statement to the Board of the assets of the Fund at book value and fair market value and a statement of any acquisitions and dispositions of investments during the quarter to which the statement relates.
(10) The statement referred to in subsection (7) shall be available to any participant for inspection upon request during the regular business hours of the Trustee.
Claims
12. (1) The Fund is established as of the 1st day of July, 1986, to stand in the place of a participant for the payment out of the Fund of claims of customers of the participant where the transactions occurred during the period when the participant was registered under the Act and where the participant has refused after demand or is unable to pay the claims.
(2) Revoked: O. Reg. 283/92, s. 2 (2).
(3) A customer may make a claim against the Fund where the customer gives written notice of the claim to the Registrar within two years of the participant’s refusal or failure to pay, even if the motor vehicle dealer with respect to whom the claim is being made ceased to be a participant after the refusal or failure to pay, and where the claim meets one of the following requirements:
1. The customer has recovered in any court in Ontario a judgment in respect of the claim and the judgment has become final by reason of the expiration of the time for appeal or of having been confirmed by the highest court to which an appeal may be taken and the customer makes an application, supported by the judgment and statement of claim, for payment of the unsatisfied portion of the judgment and costs as assessed.
2. The participant has been convicted of an offence under the Criminal Code (Canada) involving fraud, theft or false pretences in connection with a transaction out of which the claim arose and the claim is for a liquidated amount and the customer makes an application that is supported by evidence of the conviction and of the correctness of the liquidated amount.
3. The participant has become a bankrupt or a winding-up order has been made or a receiver appointed in respect of the business of the participant under the Bankruptcy Act (Canada) and the claim is for a liquidated amount and the customer makes an application that is supported by evidence of the allowance of the claim by the Trustee in bankruptcy, liquidator or receiver, less any amount that may have been paid on account of the claim by the Trustee, liquidator or receiver.
4. The customer has made payment by way of deposit, down payment or otherwise to a participant with respect to an undelivered motor vehicle and the customer has not received the motor vehicle contracted for or an alternative motor vehicle that is acceptable to the customer and the claim is for a refund of the payment made to the participant where the customer has made a demand for payment from the participant and the participant has refused without legal justification to make the payment or is unable to pay by reason of bankruptcy or insolvency, but is not a claim for a refund of money paid by the customer to a participant where the customer has been provided with the motor vehicle contracted for and the demand for a refund is based on the cost, value or quality of the vehicle provided.
5. The customer has made payment for an extended warranty or service plan to a participant where the warranty or plan is not underwritten by an insurer and the term of the warranty or plan has not expired and the claim is for a non-earned premium or for a repair under the warranty or plan.
(4) Revoked: O. Reg. 207/00, s. 1 (2).
(5) No customer of any participant shall have any vested or absolute right to payment of a claim against the Board, the Tribunal, the Trustee or the Fund.
(6) The Board shall determine the eligibility and the amount of any claim made by a claimant and shall direct the Trustee to pay any claim or any part of it that meets the requirements of this Schedule and, subject to section 15 of this Schedule, the decision of the Board is final.
(7) A claim against the Fund may only be made by a claimant giving written notice of the claim to the Registrar supported by an affidavit in the form provided by the Minister and such other material as may be required by the Board for transmittal to the Board with full particulars of the claim and of any payment recovery in respect of it and the Trustee may require, as a condition precedent to making payment of the claim or any part of it, the delivery and execution of such documents as the Trustee in its discretion or upon the advice of its counsel considers necessary, including documents as are necessary for transferring to the Trustee the interest of the claimant in the claim so as to subrogate the Trustee to the position of the claimant against the participant.
(8) No amount shall be paid out of the Fund until the claimant assigns to the Fund any judgment or other right of any kind that the claimant has against the participant or any other person in respect of the claimant’s claim.
(9) Despite subsections (6) and (7), the Board may on any claim require that the claimant,
(a) obtain a judgment, issue an execution and cause a levy or levies to be made under it and examine the judgment debtor or debtors;
(b) exhaust any other legal remedies in addition to those referred to in clause (a) available to the claimant in respect of the claimant’s claim; or
(c) bring an action against all persons against whom the claimant might reasonably be considered as having a cause of action in respect of the claim.
(10) Despite subsections (1), (2), (3) and (6) and subsection 15 (3) of this Schedule, there shall not be paid out of the Fund,
(a) more than $15,000, exclusive of costs, to each claimant in respect of each transaction, in respect of a claim or claims against any one participant;
(b) any amount for interest, including interest on a judgment or on costs;
(c) where there is a judgment, any amount for costs in excess of actual disbursements and fees as assessed;
(d) any amount in respect of a claim that arose out of a transaction that took place before the 1st day of July, 1986;
(e) any amount in respect of a claim that arose out of a transaction that took place on or after the 1st day of July, 1986 and before the 30th day of September, 1986, unless the motor vehicle dealer with respect to whom the claim is made is a participant; or
(f) any amount in respect of a claim or repair under an extended warranty or service plan where the need for repair was incurred after the default of the participant.
(11) For the purposes of subsection (10), a partnership and its members shall be deemed to be one participant and a corporation and its officers shall be deemed to be one participant.
(12) Where any amount is recovered from any other source in partial satisfaction of the total claim against a participant, the maximum amount authorized by clause (10) (a) is reduced by the amount so recovered.
13. (1) Where it appears to the Director or the Board that a customer of a participant will be entitled to claim against the Fund, and that the customer has been placed in circumstances where immediate funds or service are necessary to alleviate undue inconvenience of the customer, the Board, with the concurrence of the Director, may direct the Trustee to pay out of the Fund an amount sufficient to alleviate the immediate inconvenience.
(2) Despite the provisions of subsection 6 (1) of this Schedule with respect to a quorum of the Board, where a quorum of the Board is not available, the powers set out under subsection (1) of this section may be exercised by any two members of the Board with the concurrence of the Director or the Director’s designate in writing.
14. (1) Where a claim has been approved by the Board, the Trustee shall make a payment out of the Fund to the person or persons entitled.
(2) Where, in the opinion of the Board, a claimant is unable to give written notice of the claim within the two-year period referred to in subsection 12 (3) of this Schedule, the Board may grant an extension of time for making the claim against the Fund and the decision of the Board as to any such extension shall be final and not subject to review.
(3) Where a payment is made out of the Fund, the Board is subrogated for the amount of the payment, to any and all rights or remedies to which the person receiving the payment is entitled in respect of the claim for which the payment was made, including rights and remedies as judgment creditor or execution creditor in respect of any judgment that has been assigned under subsection 12 (8) of this Schedule against the participant or any other person or in the event of the death, insolvency, bankruptcy or other disability of the participant or other person, against the personal representative or other person administering the estate of the participant.
Hearing by Tribunal
15. (1) Where the Board determines that a claim or any part of it made under section 12 of this Schedule is not a proper claim, it shall serve notice of its decision, together with written reasons, on the claimant and the notice shall inform the claimant that the claimant is entitled to a hearing by the Tribunal if the claimant mails or delivers to the Registrar and the Tribunal, within fifteen days after the notice is served on the claimant, notice in writing requiring a hearing.
(2) Where a claimant who has been served with a notice under subsection (1) does not require a hearing, the Tribunal shall not hold a hearing and the decision of the Board is final after the fifteenth day after the notice is required to be served.
(3) Where a claimant requires a hearing before the Tribunal under subsection (1), the Tribunal shall appoint a time for and hold the hearing and, after affording the claimant an opportunity to be heard, may confirm the determination of the Board or may set aside the determination of the Board with respect to all or any part of a claim and direct the Trustee to pay the amount determined by the Tribunal.
(4) The claimant who has requested the hearing and such other persons as the Tribunal may specify are parties to a hearing before the Tribunal under this section.
Termination of Participation in the Fund
16. Where the registration of a participant is voluntarily cancelled under subsection 7 (7) of the Act, the participant shall be deemed to be no longer participating in the Fund on the day that the registration is cancelled by the Registrar.
17. (1) When a participant is in default, the Trustee shall forward notice in writing of the default to the participant.
(2) Where a participant is in default, the participant shall satisfy the default within ten days from the date of the notice from the Trustee referred to in subsection (1).
(3) This section does not apply where a default is due to insolvency, bankruptcy or a voluntary or compulsory winding-up of a participant.
18. A dealer who ceases to participate in the Fund shall file with the Board, the Trustee and the Registrar such financial statements and other evidence as the Board and the Director may in their discretion require to establish that the affairs of the dealer are settled and that there are no claims on the Fund and that arrangements satisfactory to the Board and the Director have been made to ensure that all liabilities and obligations of the dealer that could give rise to any such claim have been met and discharged.
The Trustee
19. (1) The Board shall, with the approval of the Director, appoint a trust corporation registered under the Loan and Trust Corporations Act as the Trustee.
(2) The fees to be charged by the Trustee for the management of the Fund shall be approved by the Director.
(3) The Trustee shall not be required to give any bond or other security for the performance of its duties and shall not be responsible for any diminution in the funds, securities or property of whatever character constituting part of the Fund or any loss resulting from the making of any investments or from the retention in good faith for any length of time of securities or other property of whatsoever character purchased or acquired by it, even if such securities or property may not be income producing, or from any mistake in judgment made in good faith or from any loss of whatsoever character unless resulting from its own fraud, negligence or wilful misconduct.
(4) The Trustee may act upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, letter, telegram, cablegram or other paper or document believed by it on reasonable grounds to be genuine and to have been signed, sent or delivered by or on behalf of the proper party or parties.
(5) The Trustee may employ or retain such counsel, accountants, appraisers or other experts or advisers as it may reasonably require for the purpose of discharging its duties under this Schedule and may act on the opinion or advice of or information obtained from any of them and shall not be responsible for any misconduct on the part of any of them.
(6) The Trustee may at any time resign as Trustee by giving ninety days notice in writing to the Board and to the Director.
(7) The Board or the Director may at any time require the removal of the Trustee on giving ninety days notice in writing to the Trustee.
(8) Upon the resignation or removal of the Trustee or where the Trustee is at any time unable to act, the Board, with the approval of the Director, shall appoint a Corporation authorized to do business in Ontario as a trust corporation under the Loan and Trust Corporations Act as a successor trustee and the Corporation upon acceptance of the appointment shall, subject to subsection (9), have vested in it without further act or formality, all the rights and powers given under this Schedule to the Trustee who resigned, was removed or was unable to act.
(9) Upon the written request of the Board, the Trustee ceasing to act shall execute and deliver an instrument in writing transferring to the successor Trustee all the rights, powers and Fund assets reposing in or with the Trustee ceasing to act and shall do all other acts or things necessary or desirable for the vesting of the Fund assets in the successor Trustee.
(10) A Trustee ceasing to act shall render to the Director and to the Board an account of its administration following that covered by its last annual accounting required under subsection 11 (6) of this Schedule.
20. (1) The Trustee, in the administration of the Fund, shall have power and authority to,
(a) invest and reinvest the Fund in approved securities and may do all acts and things and execute, acknowledge and deliver all instruments in respect of them;
(b) hold in the form of cash awaiting investment or other application hereunder any portion of the Fund and may hold the cash in any deposit or current account operated by the Trustee;
(c) sell, convert, assign, exchange, transfer or otherwise dispose of any approved securities at any time constituting part of the Fund at public or private sale for such consideration and upon such terms and conditions as the Trustee sees fit;
(d) vote in person or by proxy with respect to any approved security constituting part of the Fund;
(e) exercise personally or by general or limited power of attorney any right appurtenant to any approved securities or to any other property held by it at any time;
(f) join in or dissent from and oppose the reorganization, redistribution, consolidation, merger, liquidation or sale of corporations or properties whose securities are held by the Fund;
(g) exchange approved securities for other securities issued in connection with or resulting from a reorganization and retain such securities;
(h) exercise or sell any rights issued upon or with respect to any approved securities;
(i) register any approved security or other property held by it in its own name or in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity;
(j) adjust or settle any claims in favour of or against the Fund and to conduct any litigation arising out of the claims; and
(k) do any act in addition to those referred to in clauses (a) to (j) with respect to any property in the Fund necessary to protect the investment of the Fund.
(2) The Trustee shall ensure that its books and records clearly identify all approved securities and property however held by it that are part of the Fund.
21. (1) The Trustee’s fee for performing its duties under this Schedule shall be such as may be mutually agreed upon from time to time between the Director, the Board and the Trustee and in default of agreement, the fee shall be determined by the Director.
(2) In addition to the fee referred to in subsection (1), the Trustee is entitled to be reimbursed for any and all costs, charges and expenses reasonably incurred by the Trustee in the performance of its duties under this Schedule.
(3) All fees, costs, charges and expenses and the expenses directed to be paid by the Board shall be deducted first from the income of the Fund and in the event of any deficiency in the income of the Fund from the capital of the Fund.
22. (1) The Trustee shall notify the Board and the Registrar forthwith of any default of any participant or of any claim made in respect of it or of any failure by a participant to perform any obligation or condition under this Schedule.
(2) The Trustee shall furnish the Board with all information, records and documents in its possession in connection with this Schedule and its administration of the Fund as the Board may from time to time reasonably request.
Miscellaneous
23. No payment shall be made out of the Fund to satisfy or settle any claim or judgment or other court order resulting from the fraud, negligence or wilful misconduct of the Trustee.
24. (1) The Board shall, when required by the Minister, provide to the Minister such information, books, records or documents respecting the affairs of the Fund as the Minister may specify from time to time.
(2) The Director may, where the Director considers it advisable, direct that the affairs of the Fund be audited and the Board shall assist the Director in performing such an audit and shall provide all books and records and other information as may be required in connection with it.
25. Nothing in this Schedule affects the rights or obligations of any person under a bond of a motor vehicle dealer issued before the 31st day of January, 1986 or issued prior to the dealer becoming a participant in the Fund.
R.R.O. 1990, Reg. 801, Sched.; O. Reg. 283/92, s. 2; O. Reg. 201/94, s.1; O. Reg. 207/00, s. 1.
FORM 1
BOND OF A GUARANTEE COMPANY APPROVED UNDER THE GUARANTEE COMPANIES SECURITIES ACT
Motor Vehicle Dealers Act
R.R.O. 1990, Reg. 801, Form 1.
FORM 2
BOND OF GUARANTOR OTHER THAN GUARANTEE COMPANY
Motor Vehicle Dealers Act
R.R.O. 1990, Reg. 801, Form 2.
Motor Vehicle Dealers Act
R.R.O. 1990, Reg. 801, Form 3.