Court File and Parties

Court File No.: 2811 998 Date: January 28, 2013

Ontario Court of Justice

(Central East Region)

B E T W E E N:

Her Majesty The Queen (as Represented by the Ministry of Transportation)

D.W. Lee, Counsel for the Appellant

- and -

Michael Tsapoitis and Ontario Line Clearing and Tree Services Ltd.

B. Graham, Counsel for the Respondent (licenced Paralegal)

Heard: December 11, 2012

Judgment on Appeal

BELLEFONTAINE, J:

Background

[1] This is an appeal brought on behalf of the Crown from the decision given on the 7th day of February 2012 in which the Respondent Michael Tsapoitis was found not guilty of the offence of driving an unsafe vehicle under s.84(1) of the Highway Traffic Act, R.S.O. 1990, c.8 and also found the Respondent Line Clearing and Tree Services Ltd. not guilty of a "wheel-off" offence under s.84.1(1) of the H.T.A.

[2] Enforcement officers with the Ministry of Transportation investigated a commercial motor vehicle that had attached to it a wood-chipping device on the shoulder of the highway. The wood chipper was missing its right wheel and had a scrape mark in the pavement leading to the wheel hub for the missing wheel. The wheel was not to be found. The only person present on scene was Mr. Tsapoitis. The truck that had the wood-chipping unit attached to it was a commercial motor vehicle registered to the respondent Ontario Line Clearing and Tree Services Ltd. The ministry investigator observed that the wheel hub to which the wheel would normally have been attached had the eight-wheel fastening bolts shorn from where the wheel should have been attached.

Trial Decision

[3] The Justice of the Peace considered the evidence and the arguments and on reserve gave thorough reasons for finding that the wood chipper was not a vehicle which is an essential ingredient of the two offences charged. The Justice of the Peace noted the circular nature of the definition of "vehicle" in the Highway Traffic Act and the lack of a "universal or umbrella definition of a motor vehicle." In the absence of a clear, statutory definition of a vehicle, he relied on the Oxford Dictionary definition defining vehicle as "a thing used for transporting people or goods on land." He held the definition would not apply to a wood chipper that was towed behind another vehicle. In coming to this conclusion he reasoned in part by analogy to cases dealing with the definition of a trailer and in particular Royal Insurance Company and Wawanesa Mutual Insurance Company where an air compressor that was being towed from construction site to construction site on wheels, was held not to be a trailer for the purposes of the Insurance Act as the primary purpose or function served by the apparatus was as construction equipment, and the wheeled nature of it which allowed it to be towed behind other vehicles was only ancillary or incidental to its primary function. Other cases reviewed in Royal Insurance Company included ones where a wheeled asphalt mixer was held not to be a trailer under the Highway Traffic Act and Roach J.A. observed:

"The legislature could not have intended that every device or apparatus equipped with wheels thereby becomes a 'trailer.'"

In finishing, Justice of the Peace Read stated:

"This Court concludes that unless the legislation says so expressly, it would be hard to uphold the premise that every device equipped with wheels is a vehicle. It is open obviously to the Ontario legislature to do many things, including clarifying that the definition of all apparatuses capable of being towed then are automatically defined as vehicles. Until that happens, it seems a wood chipper is not a vehicle and therefore the essential element, an essential element of those charges has not been established. Therefore, the charges are dismissed."

Crown's Position

[4] The position of the Crown is that the Justice of the Peace erred in not taking a purposive approach to the interpretation of the definition of a vehicle in the Highway Traffic Act and relying instead on a dictionary definition of a vehicle. The Respondents submit that the Justice of the Peace was correct in law and submit the purpose of the legislature at the time of the passing of s.84.1 was to control the safety of large commercial motor vehicles whose wheels were flying off resulting in tragic fatalities.

Statutory Provisions

[5] The Highway Traffic Act provides:

s.1(1) – 'Vehicle' includes a motor vehicle, trailer, traction engine, farm tractor, road building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power including muscular power, but does not include a motorized snow vehicle or a street car;

s.84(1) – No person shall drive or operate or permit the driving or operation upon a highway of a vehicle, a street car or vehicles that in combination are in a dangerous or unsafe condition.

s.84.1(1) – Where a wheel becomes detached from a commercial motor vehicle or from a vehicle being drawn by a commercial motor vehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehicle from which the wheel became detached are guilty of an offence.

Analysis

The Crown's Statutory Interpretation Argument

[6] The Crown properly concedes that the wood chipper would not meet the definition of a "trailer" in the Highway Traffic Act as, notwithstanding its wheels and trailer hitch, it is not a "device or apparatus…designed to transport persons or property." In the context of the case law its primary purpose is as a piece of construction equipment that is only incidentally wheeled and was being temporarily drawn, propelled or moved upon a highway to get from work location to work location. The Crown submits however that the definition of vehicle is open-ended and is much broader than just referring to a motor vehicle or trailer and "includes… any vehicle drawn, propelled or driven by any kind of power." There is no question that the wood chipper was being drawn by "any kind of power" being in this case the commercial truck which was towing the wood chipper. The Crown submits that by using the non-exhaustive word "includes" and following it with examples the Legislature is emphasizing the broad range of items intended to be included in the definition and demonstrating an intention that the definition not be inappropriately read down.

Court's Conclusion on Interpretation

[7] With great respect to the Justice of the Peace, I find the Crown's position to be correct and that a purposive interpretation of the legislation should be applied in this case, rather than confining the definition to the clearly articulated items, and accordingly that the wheeled wood-chipper should be found to be a vehicle.

Principles of Statutory Interpretation

[8] The primary rule for the proper construction of a statutory provision flows from reading the words in their grammatical and ordinary sense and in their entire context, harmoniously with the statute as a whole, the purposes of the statute, and the intent of the legislature. This was reiterated in the Highway Traffic Act context by the Court of Appeal in Ontario v. Ryder Truck Rental Canada, 47 O.R. (3d) 171 at p.11:

"The modern approach to statutory interpretation calls on the court to interpret a legislative provision in its total context. The Court should consider and take into account all relevant and admissible indicators of legislative meaning. The Court's interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislator's intent, and produce a reasonable and just meaning."

[9] Of significance in this regard also is s.64(1) of the Legislation Act, 2006, S.O. 2006, c.21 which reads:

"An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best assures the attainment of its objects."

Dictionary Definition vs. Statutory Definition

[10] At the outset it should be noted that the normal use of the term vehicle can be broader than the brief definition relied upon by the Justice of the Peace. The New Shorter Oxford English Dictionary (1993) defines it as: … a means of conveyance, usually with wheels for transporting people or goods etc., a car, cart, truck, carriage, sledge etc.; any means of carriage or transport. Although not determinative for this case the use of the "etc." and "any means of carriage or transport" would include a broader range of things than just those carrying goods or people. Indeed the addition of wheels and trailer hitch are arguably a means of transporting the wood chipper from work location to work location to have this unit fit within that definition. Nonetheless, to the extent that the dictionary definition of "vehicle", which reflects the ordinary sense of the word, may be narrower than the statutory definition I consider that the narrower dictionary definition of vehicle has to be looked at in the context of the statutory definition which includes a broader range of items than just those designed to transport people and property. To the extent of an inconsistency the meaning of the law maker prevails. See Sullivan, Construction of Statutes, 5th ed. p.62. For example, traction engines, farm tractors and road building machines would not be the type of items which could be said to be designed to transport people or goods, but are included in the statutory definition of vehicle. The inclusion of these types of machines supports an intention for a broader range of things to fall within the statutory definition of a vehicle. The inclusion of these machines also makes the primary purpose and incidental purpose analysis in the cases dealing with the definition of a trailer less determinative. Clearly the ability of many road-building machines to move from place to place or be towed from place to place would only be incidental to their primary purpose of being used for construction work. Accordingly their inability to be used as devices for transporting people or goods is not an exclusionary factor in the broader statutory definition of a "vehicle". I would note as well that the inclusion of road building machines which are statutorily defined in a broad way creates additional ambiguity if a narrow interpretation of the definition is applied.

Legislative Purpose and Intent

[11] Given the ambiguity in the definition of vehicle, both in its normal sense and created by the inconsistency between a narrower dictionary definition and the wider statutory definition, I consider it necessary to consider the legislative purpose and intent in applying the definition. There may be some merit to the respondent's position that the 1997 amendments to the Highway Traffic Act, which created s. 84.1 were intended to address the problems of wheels flying off large commercial motor vehicles. The focus of the legislation is certainly on commercial motor vehicles and the weight limitation incorporated in s.84.1(7) exempting vehicles under 4,500 kilograms provides further support for the focus on large vehicles. That said, the definition of "vehicle" in s.1 of the Act is clearly intended to be applied throughout the Act, unless otherwise modified, and I can see no reason for interpreting the term "vehicle" differently in s.84 which pre-dates the 1997 amendments from the use of the term "vehicle" in s.84.1. In the absence of some clear indication that the term "vehicle" is to be interpreted differently in the different sections, in my view a harmonious interpretation of the legislation would require the same definition to apply to both. Particularly so given the inter-related nature of the sections which both deal with vehicles being in a dangerous condition.

Avoiding Absurd Results

[12] I further agree with the submission of the Crown that a narrow interpretation of the definition leads to the absurd result that the operator of an unsafe bicycle has committed an offence but the person towing a heavy piece of construction equipment, that is in a dangerous condition, at potentially very high speed, has not. Clearly an interpretation which avoids such an absurdity is to be avoided. The Respondents' position that the absence of a licensing or inspection requirement for the wood chipper supports the argument that it is not a vehicle cannot prevail given the similar lack of requirements for many of the things included in the definition of a "vehicle".

Policy Considerations

[13] Section 84.1 imposing absolute liability for flying wheels places a higher burden on operators of commercial motor vehicles than is imposed on vehicles in general under s.84. Given the for-profit nature of commercial motor vehicles and the professional nature of the owners and operators of them who are highly regulated, imposing the high standard has been held to be reasonable. That being the case I can see no reason in policy why that same standard should not apply to them regardless of the nature of the item they are towing on a public highway. Even if the piece of construction equipment or item of any description does not fall within the definition of a trailer or the specifically enumerated items that are defined to be a vehicle, the danger to the public posed by a dangerous or unsafe vehicle or wheel are the same as they are with one of the specifically articulated vehicles. Imposing on commercial motor vehicle operators and owners the obligation to ensure that wheels will not come off other pieces of equipment that they may be towing is in my view reasonable and gives full effect to the purpose and intention of the Highway Traffic Act which is to promote public safety and protect other users of the roadway. Similarly, given the availability of a reasonable diligence defence under s. 84, I find the broader definition to be the better interpretation of a "vehicle" for both commercial and non-commercial operators for the purposes of that section as well. I consider the wood chipper involved in this case to be a "vehicle" given the foregoing purposive interpretation of the Highway Traffic Act and accordingly consider the learned justice to have been in error to hold to the contrary.

Disposition

[14] As there may have been other defences available on the evidence which were not necessary for His Worship to deal with, given his conclusion, in my view new trials are appropriate in this matter rather than having a finding of guilt made by myself. Accordingly new trials are ordered.

P.L. Bellefontaine