REASONS FOR DECISION OF THE TORONTO LICENSING TRIBUNAL Date of Hearing: Panel: Re: David Peacock, Chair; Ken Chan and Diane Hall, Members 2254367 Ontario Inc. O/A Toronto Wide Waterproofing Michael Patrick Gabriele President Applicant for a Building Renovator's Licence (Application No. 177472) Counsel for Municipal Licensing and Standards: David Gourlay Counsel for Applicant: Self Represented. The chair advised Mr. Gabriele that he had a right to obtain counsel. Mr. Gabriele stated that he wished to proceed without counsel. INTRODUCTION: Mr. Gabriele had been refused a Building Renovator s Licence renewal in July 2006, and his licence had been cancelled without a request for hearing in September 2006. Mr. Gabriele submitted a new Building Renovator s Licence application in January 2011. The application was completed on March 5, 2012 when Mr. Gabriele completed a Trades Exam. A notice of non-recommendation was sent to Mr. Gabriele on March 20 2012. On April 16, 2012, 2254367 Ontario Inc. operating as Toronto Wide Waterproofing, Mr. Michael Gabriele, president requested a hearing before the Toronto Licensing Tribunal to determine whether or not a Building Renovator s Licence should be granted. EVIDENCE The city submitted report no. 5853 dated Feb 19, 2013 as exhibit 1. In a pre-hearing interview between the applicant and Ian Redfearn (Supervisor Licensing services), Mr. Gabriele agreed to the facts set out in report 5853. The City introduced no other evidence. Mr. Gabriele testified on his own behalf. He also submitted 5 pages of ICON reports as exhibit 2
ISSUES Criminal Record Mr. Gabriele s criminal record included 14 events over the period from 1982 to 2004. The activities included possession of narcotics, public mischief, fraud and assault. The penalties were mostly fines of under $1000, and/or probation. Mr. Gabriele freely admitted that he had a cocaine addiction, and this was the root cause of his criminal activities. Under cross examination by the City he reviewed most of the criminal activities on file. Mr. Gabriele presented as being very forthcoming and credible. He said that he had been drug free since 2003. The last conviction in 2004 for assault was the result of road rage and he said that he has since taken anger management classes. Mr. Gabriele said that he is receiving therapy once a week and has found solace in religion. He is married and has two sons who are both working for the waterproofing company. One of them has schizophrenia, but can still work. Workplace Accident In June 2005 Mr. Gabriele (operating as Doveco Inc) was involved in a workplace accident. While working to waterproof a basement he and co-workers applied a paint primer without sufficient ventilation. A fire occurred. No one was injured. Doveco was convicted of 6 counts of Fail to Carry out Measures and fined $55,155. The fines were not paid and the company went bankrupt. Mr. Gabriele expressed deep regret for the incident and claims to be much more careful now. Operating without a License Mr. Gabriele had 2 work related convictions in November 2011 for permit display and no CVOR certificate. He had applied for a Building Renovator s Licence in January 2011, but had not yet been granted a licence. Mr. Gabriele admitted working after he applied for his Building Renovators Licence but expressed confusion about the issue and stated that he thought since he had applied and paid the fee that he was entitled to operate. CITY'S SUBMISSIONS The City had concerns about his past behaviour but felt that there were mitigating circumstances. The City noted that Mr. Gabriele was currently operating without a licence but that he was now trying to become properly licensed. The city asked that the Building Renovator s licence be issued with the condition of 3 year probation and reporting of charges and convictions of: Criminal, By-law, and Occupational Health and Safety incidents. 2
APPLICANT'S SUBMISSIONS Mr. Gabriele said that he wanted to demonstrate that he could Do it right. He said that he would be happy to be granted the licence under the conditions requested by the city. DECISION The Tribunal felt that Mr. Gabriele s criminal activity was extensive but not serious and that he has not had a criminal charge or conviction for 8 years. The tribunal also considered Mr. Gabriele s need to make a living to support his family, that he has been in therapy to deal with his problems and that there have been no work related complaints about his services. The Tribunal recognizes the very serious nature of the workplace accident that occurred in 2005 however, we accept Mr. Khan s testimony that it was a single occurrence and that he has taken measures to correct the unsafe procedure that caused this accident and to ensure the future safety of his employees. Accordingly, the Tribunal grants a Building Renovator s Licence to 2254367 Ontario Ltd Application B177472, effective immediately, subject to the following conditions: (1) Immediately upon being granted, the licence will be placed on probation for a period of three (3) years; (2) prior to each of the next 3 renewals of the licence, Mr. Gabriele must provide to Municipal Licensing and Standards, at his own expense, an updated abstract of his criminal record; (3) during the probationary period, if Mr. Gabriele incurs any new charges or convictions under the Criminal Code, or the Controlled Drug and Substances Act, or if 2254367 Ontario Ltd incurs any charges or convictions under the Occupational Health and Safety Act or the Municipal Code he must notify Municipal Licensing and Standards, in writing, within three (3) business days; and (4) during the probationary period, if Municipal Licensing and Standards has any concerns about any new charges or convictions, those matters and report No. 5853 and any updating material may be brought back before the Tribunal for a full hearing. 3
Originally Signed David Peacock, Chair Panel Members Diane Hall concurring, Ken Chan dissenting [Reference: Minute No. 86/13] Date Signed: August 29, 2013 Please see dissenting opinion on following page. 4
DISSENTING OPINION Date of Hearing: Tribunal Member: Re: K Chan 2254367 Ontario Inc. O/A Toronto Wide Waterproofing Michael Patrick Gabriele - President Applicant for a Building Renovator s Licence (Application No. 177472) I cannot support the issuance of a Building Renovator s Licence in light of the applicant s past convictions under the Occupational Health and Safety Act. The applicant was fined $55,155.00 in 2007 - which remains unpaid. The convictions under the Occupational Health and Safety Act stemmed from a workplace incident during which a fire occurred. While the applicant testified that no one was injured, the fact was that he allowed for a hazardous work environment to exist and that placed his employees in danger. The applicant failed to demonstrate during the hearing what proactive steps he has taken to equip himself with the knowledge and training to ensure a safe workplace since the incident. By choosing not to pay this fine, the applicant has failed to accept responsibilities for his conduct and failed to demonstrate remorse for his actions. It was also established during the hearing that the applicant has been operating his business without a valid licence. The Tribunal has a responsibility to ensure that the issuance of a licence would not endanger the health and safety of the public. Furthermore, the applicant s past conduct as evident by the Occupational Health and Safety Act convictions has afforded reasonable grounds for belief that he will not carry out his trade in accordance with the law and. Neither the applicant nor the City presented evidence that demonstrates the applicant has taken steps to provide for a safe workplace or improve his understanding of a workplace safety. The applicant and the City have failed to demonstrate that the applicant has the appropriate policies or procedures in place to ensure a safe work environment. The applicant and the City have not furnished proof that the applicant has the appropriate knowledge and training to maintain a safe workplace. Therefore, I reject the City s submission requesting that the applicant s licence be issued with terms and conditions. Accepting that recommendation is not in the public interest. I also cannot accept the word of the applicant that he will be more careful in the future without any supporting evidence that he has made efforts to improve his competence in the area of occupational health and safety. For these reasons, I disagree with the majority decision. Originally Signed Ken Chan, Dissenting Member [Reference: Minute No. 86/13] Date Signed: August 29, 2013 5