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| John L. Hill |
Beashema Veerasingam had worked from 2010 until 2022 for a car dealership until his employment was terminated and his registration canceled. He decided to go to work for another dealer and reapplied for licensing as a salesperson. However, his registration was refused. It was alleged that his conduct in 2021 and 2022 did not meet the standard expected under s. 6 of the Act. Veerasingam's past conduct included sending inappropriate and sexually explicit messages and videos to former co-workers and customers.
Veerasingam asked the Licence Appeal Tribunal to grant him a licence. The explicit video sent to a coworker had been done by mistake. The messages relayed by Instagram were the product of a hacker. A sexually offensive communication to a coworker was delivered at a time that Veerasingam was drunk. He argued that such acts did not indicate his integrity and honesty, so he should be denied a licence to work as a car salesman. The vice-chair of the tribunal found Veerasingam’s explanation unreliable and implausible. His licence was rejected.
This refusal was appealed to Ontario’s Divisional Court, where three Superior Court judges
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At the hearing, the manager of the dealership where Veerasingam had been employed testified that he had received a complaint from a customer who received a sexually explicit video, but it had been sent by mistake. Veerasingam admitted to the error by saying the material had been intended for someone else. He also said it was unfair to hold him accountable because the actual recipient was not called; he had not responded to the summons. Messages sent to other customers were misaddressed because Veeringam was drunk then.
In bringing the matter to the Divisional Court, Veerasingam claimed his hearing was unfair and that he had the ineffective assistance of counsel. He had engaged a paralegal to act for him at the tribunal, but the two disagreed about how the case should proceed.
The Divisional Court affirmed that Veersingam was entitled to procedural fairness as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In that case, it was stated that a factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individual affected. The more critical the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, Justice Brian by Dickson (as he then was) in Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105. Being issued a licence was extremely important to Veersingam since his employment as a salesman depended on it.
The Divisional Court found that the appellant had not been mistreated. It concluded that the vice-chair adequately considered the appellant's admissions against interest and his other evidence. The appellant could challenge authenticity with more than his own evidence if he wished to do so. Credibility findings were based upon the appellant's course of conduct in response to the complaints and his evidence at the hearing, not on another basis. The proposed witnesses who did not attend did not detract from the assessment.
The Divisional Court devoted much of its written decision to analyzing the claim that Veerisingam had not been effectively represented. It relied on the principles set out in Deokaran v. Law Society of Ontario, 2023 ONSC 1702 (Div. Ct.); R. v. G.D.B., 2000 SCC 22; and Gligorevic v. McMaster, 2012 ONCA 115; that three preconditions in claiming ineffective assistance of counsel must be established: (1)The underlying facts on which the claim of incompetence is based must be established on a balance of probabilities (the factual component); (2) incompetent representation must be established (the performance component); and (3) the incompetent representation caused a miscarriage of justice (the prejudice component).
The letters showing disagreement between Veersingam and his paralegal were not evidence that the court could consider and this ground for challenging the decision also failed.
The court upheld the tribunal’s decision and dismissed the appeal awarding $15,000 in costs against the appellant.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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