CITATION: Anpro Excavating v. Registrar of Motor Vehicles, 2011 ONSC 3320
DIVISIONAL COURT FILE NO.: 484/10
DATE: 20110530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, ASTON AND SMITH JJ.
BETWEEN:
ANPRO EXCAVATING AND GRADING LTD.
Appellant
– and –
REGISTRAR OF MOTOR VEHICLES
Respondent
Carole McAfee Wallace, for the Appellant
Douglas Lee, for the Respondent
HEARD at Toronto: May 30, 2011
ASTON J. (orally)
[1] This is an appeal of the decision of the Licence Appeal Tribunal dated September 23, 2010, which ordered the Registrar to carry out the terms of the Suspension Order of March 10, 2010. That order suspended the appellant’s Commercial Vehicle Operator’s Registration for a period of fourteen days.
[2] The parties agree that the applicable standard of review is reasonableness, as articulated in paragraph 47 of Dunsmuir.
[3] The appellant submits that the Tribunal applied an incorrect legal test under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. That section may be paraphrased as follows:
47.(1) Subject to section 47.1, the Registrar may suspend or cancel,
(a) the plate portion of a permit as defined in Part II, or
(c) a CVOR certificate,
on the grounds of,
(f) having reason to believe, having regard to the safety record of the holder and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety.
[4] The appellant submits that the Tribunal focused on the need for punitive action and failed to consider, or failed to adequately consider, the likelihood that the appellant would carry on its business safely in the future.
[5] In our view, the reasons of the Tribunal, read as a whole, demonstrate that the Licence Appeal Tribunal understood the legal test under s.47(1) of the Act and the need to balance the poor safety record of the appellant in the past against evidence of steps that have been taken to improve public safety in its operations in the future. In its assessment of the evidence of the appellant’s remedial efforts, the Tribunal stopped short of finding that it demonstrated the appellant would be able to safely conduct its business in the future. The Tribunal commended the appellant on steps it had taken but found that those steps were first, relatively recent, and second, only reactive to escalating interventions by the Registrar over a period of years.
[6] It was in this context that the Tribunal found, “The Tribunal is concerned with public safety and believes the sanction is required to ensure the appellant is aware of the seriousness of his poor safety record.”
[7] The disposition of the Licence Appeal Tribunal was reasonable on the facts and circumstances of this case. It is also consistent with the majority decision of the Court of Appeal in Muscillo Transport Ltd. v. Ontario Licence Suspension Appeal Board (1998) O. J. No. 1488 at para. 4 which reads:
“The issue is not simply one of sanction, but rather one of the safety of the public and the appellant’s dedication in that regard. We find no error in principle in the reasons of the Board. It has not been shown that the sanction imposed was manifestly unfit.”
[8] We conclude in this case that the decision of the Licence Appeal Tribunal was reasonable and the appeal is therefore dismissed.
COSTS
J. WILSON J.
[9] Costs fixed payable to the respondent in the amount of $3,500 inclusive of HST.
ASTON J.
J. WILSON J.
SMITH J.
Date of Reasons for Judgment: May 30, 2011
Date of Release: June 8, 2011
CITATION: Anpro Excavating v. Registrar of Motor Vehicles, 2011 ONSC 3320
DIVISIONAL COURT FILE NO.: 484/10
DATE: 20110530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, ASTON AND SMITH JJ.
BETWEEN:
ANPRO EXCAVATING AND GRADING LTD.
Appellant
– and –
REGISTRAR OF MOTOR VEHICLES
Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 30, 2011
Date of Release: June 8, 2011