Court Information

Date: August 2, 2018

Court File: 2095571Z

Court: Ontario Court of Justice

Regional Municipality: Niagara

Judge: S. Lancaster J.P.

Parties

R. v. Dansway Logistics Inc.

Between

Her Majesty the Queen, and

Dansway Logistics Inc.

Counsel

For the Prosecution: Mr. Ly

For the Defendant: Ms. Stocker

Trial and Judgment Dates

Trial: June 21, 2018

Judgment: August 2, 2018

Charge

Fail to ensure performance standards are met

Highway Traffic Act, s. 107(3)

Reasons for Judgment

I. INTRODUCTION

[1] S. LANCASTER J.P.: Dansway Logistics Inc. is before the court charged on September 18, 2017 as owner of a commercial motor vehicle tractor-trailer combination driven on the Queen Elizabeth Way, did fail to ensure performance standards pursuant to s. 107(3) of the Highway Traffic Act (HTA). This matter returns today for judgment.

II. EVIDENCE

Officer Fear – Prosecution Evidence

[2] The court heard from Officer Fear, a Ministry of Transportation Provincial Offences Act Enforcement Officer. On September 18, 2017 he inspected a tractor-trailer combination at the Vineland truck inspection station on the west-bound QEW in the Town of Lincoln, Region of Niagara. The driver, Arnold Vanmil provided his photo driver's licence, the vehicle CVOR and an Ontario Apportioned Cab Card (Exhibit 2, 1, 3 respectively). The evidence shows that Mr. Vanmil was operating a commercial motor vehicle with a Registered Gross Weight of 48,000 kg.

[3] While the CVOR had expired on September 7th (11 days before offence date) and the Cab Card notes it "is not valid as proof of vehicle ownership", the certified Carrier Record (Exh. 5) confirmed Dansway Logistics as the registered vehicle owner.

[4] Officer Fear noted several observed tractor mechanical defects, namely:

• 2nd Axel (right side) wheel brake chamber with 1 loose mounting fastener
• 3rd Axel (left side) had 2 loose U-bolts securing the suspension to the axel with a missing steel washer and a gap between the plate and the securing nut
• 5th Axel (back) brake was inoperative

[5] Officer Fear outlined his visual observations and his brake inspection with the driver depressing the brake pedal. While he couldn't see the driver he believed the brake had been fully depressed, as he had asked the driver to do so. While the brake chamber fastener was observed to be loose he could not recall if he checked the fastener by hand turn or if he used a wrench. He noted that the defective brake drum was "cold to the touch", while the remaining 3 drums were hot, suggesting that the cold brake was not operating or it too would have been hot. He put the vehicle out of service due to the mechanical defects, agreeing that his notes don't reference the washer/fastener gap, loose U-bolt and mounting fasteners and the inoperative 5th axel brake.

[6] On cross examination, Officer Fear outlined the brake system "push rod" travel, noting the push rod stops when in the brake chamber, and that there were no defects with the brake shoes, the "S" cam rotor and that the push rod measurements were all "in spec". While Officer Fear did not outline his MTO training, on cross examination he did note that he's a licenced mechanic and that he conducts some 800 annual vehicle inspections. Officer Fear agreed that he had made no notes in relation to the defective brake contact, and he couldn't recall if the brake had a "backing plate", although he noted that if it had one, there would have been a "sight hole" that would permit him to view the brake shoes and drum. When asked if he had touched the fasteners to determine if they were loose, Officer Fear couldn't recall, but said that he "probably did" as that was his usual practice.

Gary Nott – Defence Evidence

[7] Court heard from Gary Nott a heavy vehicle and auto mechanic since 1969. He works for "All Fleet" which is contracted to perform regulation / scheduled maintenance for Dansway Logistics. He was called to the "Vineland truck scales" by Dansway Logistics, arriving at 10:30 am on September 19, 2017. The weather at that time was cold and raining, noting that the truck had been sitting over night. He had been informed about the loose U-bolt and the inoperative 5th axel brake.

[8] Mr. Nott checked the U-bolts mounting fasteners finding one with a broken washer protruding halfway that couldn't be moved by hand turn or hand wrench. Replacing this washer required a blowtorch and an impact wrench to remove the fastener. He was unable to move the U-bolt by hand and did not find either U-bolts loose. The 3rd axel has 2 springs secured by U-bolts, front and rear noting no concerns other than the broken washer. While there could have been a gap under the one fastener on the side of the broken washer, he couldn't see it. He noted that loose fasteners could affect the brake chamber fastener, but noted there are 2 fasteners securing the chamber in place that could not be moved. As the Dansway driver was present he applied the brakes several times while Mr. Nott checked and the brake adjustment that was found to be "in spec", including the push rod travel at 1½" within the required 2" requirement. He didn't check any brake parts, but noted that only the drum would stop the push rod travel when the brake shoes move against the drum.

III. THE LAW

Highway Traffic Act – Charging Section

s. 107(3) (Performance standards) - Every operator shall ensure that the commercial motor vehicle operated by the operator on a highway and the vehicles drawn by such commercial motor vehicles meet the prescribed performance standards.

Regulation 199/07 – Commercial Motor Vehicle Inspections

Part IV – Performance Standards

s. 14(1) The following performance standards are prescribed as vehicle component performance standards for the purpose of subsection 107(3) of the Act:

s. 3. The performance standards set out in Schedules 1, 2, 3, 4, 5, 6 & 7 to this Regulation

Schedule 1 – Daily Inspections of Trucks, Tractors and Trailers

Part 1. Air Brake System, Column 3: Major Defects:

• (a) pushrod stroke of any brake exceeds the adjustment limit (O. Reg. 587, s. 5., Schedule 1)
• (e) inoperative service, parking or emergency brake

Part 20. Suspension System, Column 3: Major Defects:

• (d) loose U-bolt

Regulation 512/97 – Critical Defects of Commercial Motor Vehicles

s. 7(1) – Air Brakes – In this section, the measurement of travel of a push rod out of service brake chamber shall be taken with the vehicle engine turned off, an initial air system pressure between 90 and 100 psi (620 and 690 kpa), the park brakes released and the service brake actuator fully applied.

s. 10(1) "loose" when applied to a fastener, means that there is visually observable space between the fastener and its contact point on the disc wheel or spoke wheel rim or that the fastener can be moved by using hand force only;

Regulation 587 – Equipment (Brakes)

s. 3(1) – The brakes required by section 64 of the Act and this Regulation shall be adequate to stop the vehicle or combination of vehicles referred to in Column 1 of the Table… Table Item 4, Column 1 notes: a commercial motor vehicle having a registered gross weight of more than 10,000 pounds, with corresponding Column 2 noting the stopping distance 40 feet

IV. CASES CITED (DEFENCE)

1. R. v. Vandemunt, [2011] O.J. No. 6783

2. R. v. Hayes, [2005] O.J. No. 5057

3. Durham (Regional Municipality) v. Zhu, [2011] O.J. No. 1797; 2011 ONCJ 193

V. FINDINGS

[11] The prosecution submits that Officer Fear follows his usual inspection practice so that complete notes are not required to lend further credibility to his evidence. While Durham (Regional Municipality) v. Zhu is not binding it is persuasive. The learned justice of the Peace J. LeBlanc speaks to his coffee pot analogy, questioning whether the coffee pot was turned off and the house locked having left for work minutes or hours earlier, despite routinely following one's usual practice to do so. Making a note to this affect could have lessoned reasonable doubt in this regard. While the Zhu case relates to radar device evidence, I disagree with the prosecution that today's case is more memorable. Absent notes, inspection evidence can blend over time. Officer Fear's memory lapse on key evidence suggests that his recollection could have benefitted from more detailed notes - an aide-memoire making is evidence more credible.

[12] Both R. v. Vandemunt and R. v. Hayes address the importance of note-taking especially "… on matters of significant importance…" with Hayes linking the absence of notation with respect to observations and "… that the absence of a written note on that important piece of evidence was a factor relevant to assessing credibility". (Par. 11). Convictions can have serious implications for defendants and the prosecution's evidence details are important in terms of disclosure and ultimately trial court evidence.

[13] As the inspection took place at night (10:48 pm) the MTO yard would have required artificial lighting, and presumably the officer would have used a flashlight or other source of light to inspect the truck's undercarriage, e.g., suspension and brakes, yet there was no prosecution evidence as to the source of light.

[14] O. Reg. 512/97 defines "loose" in relation to fasteners under s. 10(1) noting a "visually observable space between the fastener and its contact point … or that the fastener can be moved using hand force only". Recognizing that this definition is noted under "Wheels and Rims" it likewise provides a direction in relation to fasteners for suspension and brakes, and particularly how the officer might have determined a loose fastener, noting that he did not touch then fasteners in this case. The HTA Section 107(11) refers to the driving prohibition with a prescribed defect. O. Reg. 199/07 prescribes Major Defects, notably in Column 3, Part 1. Air Brake System (e) "inoperative service", and Part 20. Suspension System (d) "loose "U"-bolt". Regarding O. Reg. 587 required stopping distance, there is no evidence that the inspected truck could not achieve the required 40 feet stopping distance given the one alleged inoperative brake.

[15] Officer Fear's qualifications, knowledge and experience as a vehicle inspector are important in terms of his evidence credibility, especially as no prosecution expert witness testimony was tendered. Officer Fear could not recall the weather conditions, whether or not there was a brake assembly "backing plate" that would limit his view of the brake assembly, especially given the dark night lighting conditions, noting that if there was a backing plate there would be a viewing hole through which to see the brake assembly. Key evidence details were also not referenced in his notes (e.g., fastener gap and touching for looseness, U-bolts) and no photographic evidence was tendered to show the defective items.

[16] Despite the alleged fastener gap, presumably caused by the half missing washer, Mr. Nott noted that the fastener required a blowtorch and an impact wrench to remove it, and not loose to the hand turn, if in fact Officer Fear had touched the fastener as he said he probably did. While asking for driver assistance to depress the brake pedal during the brake check, there was no evidence of further communication, and in particular given the alleged inoperative brake finding as the driver could have released his foot as the officer was checking the 5th axel brake. While the time to complete the inspection was not mentioned, on cross examination officer Fear noted that there had been a time lapse between inspecting the first brake sets and the 5th axel's brake that could have affected of the later axel's brake temperature. As O. Reg. 512/97 prescribes push rod measurement procedures, only the required PSI was noted with the vehicle was placed in neutral, but not necessarily with the engine turned off.

VI. JUDGMENT

[17] Officer Fear detained the tractor due to his observed critical defects. He was not qualified as an expert and neither was Mr. Nott. Officer Fear's and Mr. Nott's evidence conflicts. It was agreed that the push rod specifications were in order; however, half the fastener washer was found to be present during Mr. Nott's inspection, yet missing altogether during Officer Fear's inspection. In the absence of Officer Fear's notes, the gaps in his recollection on key evidence, and the absence of supporting photographic evidence showing the defective parts, and considering R. v. W(D), I am left with reasonable doubt. The charge is dismissed.