Registrar's Decision

20-08-001

File Number: 20-08-001

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

Complainant: Vehicle Sales Authority of BC

Licensee/Unlicensed person:

Joshua Lea Tibbo (#210659)

Issues:

Introduction

Mr. Tibbo was instructed by Cranbrook Kia to deliver a cash-back cheque to a consumer in the amount of $3,000. Mr. Tibbo, instead, deposited the cheque in the amount of $3,000 to his own bank account. This was brought to the attention of Cranbrook Kia after Consumer 1 filed a complaint with the Authority. Cranbrook Kia took immediate steps to rectify the matter and paid Consumer 1 the $3,000 and had Mr. Tibbo pay the dealership.

After this matter came to light, Mr. Tibbo assured Cranbrook Kia that this was a one-time occurrence. However, the dealership was not satisfied with Mr. Tibbo’s response and audited all sales by Mr. Tibbo where a cash-back was involved. By way of the audit, the dealership found another discrepancy involving another consumer (Consumer 2). In this case, Mr. Tibbo had paid $1,500 of the $3,000 owing to Consumer 2 and was making payments for the balance owing. Cranbrook Kia obtained the remaining $1,500 from Mr. Tibbo and directly paid Consumer 2 the balance owing on the same day.

Issues
Based on the above-mentioned occurrences, the Authority advances allegations that:

  • Mr. Tibbo’s conduct took advantage of Consumer 1’s and Consumer 2’s inability to protect their own interests and whether that conduct is unconscionable conduct contrary to section 9(1) of the Business Practices and Consumer Protection Act (“BPCPA”).
  • Mr. Tibbo did not act with honesty and integrity contrary to section 33(2)(1) of the Motor Dealer Act Regulation.
  • Mr. Tibbo’s conduct adversely affected the reputation of Cranbrook Kia, contrary to section 22(2)(f) of the Code of Conduct, which caused Cranbrook Kia to contravene a law of British Columbia or Canada, contrary to section 33(2)(i) of the Code of Conduct.
  • The Authority seeks various orders ranging from penalties to suspension and cancellation of Mr. Tibbo’s salesperson licence.

Key factual and legal findings

  • Unconscionability
  • Committing an unconscionable act is contrary to section 9(1) of the BPCPA.
  • To determine whether a transaction is unconscionable requires assessing the entire transaction and the legislated factors noted in the BPCPA. When assessing a transaction for unconscionability, all factors must be taken together to determine if the consumer’s inability to protect their own interests was taken advantage of by the dealer and that the transaction was “commercially immoral”.
  • Although Mr. Tibbo held back the $3,000 cash back from Consumer 1 and was making payments of the balance owing to Consumer 2, none of the evidence before the Registrar establishes that the deals reached between Consumer 1 and Consumer 2 were commercially immoral. Therefore, it cannot be said that the two transactions were inequitable requiring that they be cancelled.

Code of Conduct

  • As per section 33(2)(a) of the Code of Conduct, a licensee or registrant, in the course of business, must act with honesty and integrity.
  • Salespersons are in a position of trust with the buying public who rely on them to give clear and honest information. Integrity is also of pinnacle importance as salespersons may be privy to customers’ confidential and personal information.
  • In this case, Mr. Tibbo deposited the $3,000 cash-back cheque, destined for Consumer 1, into his own back account and endorsed the cheque by providing an illegible signature as Consumer 1. Further, Mr. Tibbo advised Consumer 2 that there was an issue with the bank in providing the cash-back and was making payments of the balance owing.
  • When Cranbrook Kia asked Mr. Tibbo about the original complaint received from Consumer 1, Mr. Tibbo falsely stated that Consumer 1 was the only affected consumer. Cranbrook Kia came to discover Consumer 2 because they did not trust his assurances and conducted an audit, which lead to discovering the matter involving Consumer 2.
  • Negatively impacting the reputation of the motor dealer (registrant)
  • As per section 33(2)(f) of the Code of Conduct, salespersons must not adversely affect the reputation of the authority, a licensee, a registrant or the registrar.
  • Mr. Tibbo penned an apology letter to Consumer 1 and Consumer 2, and both letters indicate that Mr. Tibbo took advantage of the trusting relationship he had built with the consumers. Mr. Tibbo also recognizes that his conduct could negatively impact the two consumers’ views of Cranbrook Kia and the motor dealer industry at large.
  • Cranbrook is a smaller community, where a negative reputation is particularly impactful – as word-of-mouth travels fast. This type of conduct can be damaging on a business and those dependent on that business for a livelihood.
  • Caused Cranbrook Kia to contravene a law of British Columbia or Canada
  • The evidence finds that Mr. Tibbo acted alone and not on any direction of Cranbrook Kia in his conduct.
  • Cranbrook Kia’s quick action to rectify this matter and further audit Mr. Tibbo shows its intention was to honor the cash-back arrangements for each consumer.
  • Compliance Selection
  • The Authority’s regulatory philosophy and enforcement principles speak of using progressive enforcement coupled with education to address non-compliance. Generally, a first-time transgression results in warnings, education and maybe conditions on a licence.
  • This is a first-time transgression for Mr. Tibbo, although he did repeat the misconduct with two consumers. It is also to be noted that Mr. Tibbo allowed his personal situation to influence his decisions and his conduct shows that he requires further training to address ethical dilemmas he may again face as a salesperson.
  • Past cases of a similar nature share commonalities to this case in that the individuals admitted their wrongdoing, took positive steps to rectify harm associated with the wrongdoing, and showed signs they could be governed and would rehabilitate their behavior. In turn, they were allowed to remain in the industry with sufficient deterrents and conditions on their license to protect the public.
Outcome:


The Registrar Found:

  • Mr. Tibbo breached section 33(2)(a) of the Motor Dealer Act Regulation by failing to act with honesty and integrity, and
  • Mr. Tibbo breached section 33(2)(f) of the Motor Dealer Act Regulation as his conduct adversely affected the reputation of Cranbrook Kia.
  • To protect the public from potential future risks of harm and to deter Joshua Tibbo and the industry generally, the Registrar ordered the following:
    Joshua Tibbo’s salesperson licence is suspended for 30 days commencing 7 days after the date of this decision,
    The following conditions are added to Joshua Tibbo’s salesperson licence:
    (i) Joshua Tibbo’s sales are to be reviewed and approved by a manger or supervisor before being finalized with a consumer,
    (ii) Joshua Tibbo must not handle consumer’s money, including taking deposits, providing refunds to consumers, providing cash back cheques, or assisting a consumer to obtain credit for a purchase/lease,
    (iii) Joshua Tibbo is not to be in a supervisor or management position without the prior written approval of the Registrar,
    (iv) Within 60 days of this decision’s date, Joshua Tibbo must retake and successfully complete the salesperson certification course at his own cost, and
    (v) Within 60 days of this decisions date, Joshua Tibbo is to take and successfully complete a course on ethics (in-person or online) at his own cost, at an institute acceptable to the Registrar. A British Columbia accredited post-secondary institute is acceptable. Mr. Tibbo must provide proof of successfully completing the ethics course.

Conditions (i), (ii) and (iii) may be reviewed after 12 months from this decision’s date. Mr. Tibbo has leave to apply to the Registrar to remove those conditions sooner, if special circumstances arise.

  • Imposition of an administrative penalty in the amount of $1,000 on Joshua Tibbo and payment of investigation costs with the amount to be agreed to between Mr. Tibbo and the Authority, or if they can’t agree, the amount could be set by the Registrar at another hearing.

Legislation Cited

  • Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2
  • Motor Dealer Act, R.S.B.C. 1996, c. 316
  • Motor Dealer Act Regulation, B.C. Reg. 447/78

Cases Cited

  • Bain v. The Empire Life Insurance Company, 2004 BCSC 1577 (BC Supreme Court)
  • Fryer v. Motor Vehicle Sales Authority of British Columbia, 2015 BCSC 279 (BC Supreme Court)
  • Kevin D Lench (April 14, 2011, Case File 10-70943, oral decision of the Registrar)
  • Motor Vehicle Sales Authority of British Columbia v. Barnes Wheaton (North Surrey) Chevrolet Buick GMC Ltd. (April 16, 2020, Hearing File 19-07-004, Registrar)
  • Ontario (Registrar of Motor Vehicle Dealers and Salesman) v. Clermont, [1974] O.J. No. 1028 (Ontario Superior Court)
  • R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 SCR 154 (Supreme Court of Canada)
  • Smith v. Ontario (Registrar, Motor Vehicle Dealers Act), 2011 ONSC 829 (Ontario Superior Court)
  • Webster v. Pioneer Garage Ltd. dba Fraser Valley Pre-owned (April 27, 2018, Hearing File 17-07-002, Registrar)


 

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