Licence Appeal Tribunal
FILE: 7297/CVOR
CASE NAME: 7297 v. Registrar of Motor Vehicles
Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Order of the Registrar of Motor Vehicles Pursuant to Section 17 – to refuse to Issue a Commercial Vehicle Operator’s Registration Certificate
Ontario Line Clearing & Tree Services 2010 Ltd Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicants: Mark Reynolds, Agent
For the Respondent: Patrick S. Moore, Counsel
Heard in Toronto: March 28, 2012
ORDER
The Applicant appeals to this Tribunal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an order of the Registrar of Motor Vehicles (the “Registrar”) issued on March 1, 2012 pursuant to section 17(1) to refuse to issue a Commercial Vehicle Operator’s Registration (“CVOR”) certificate.
The Applicant, by way of motion, seeks an order from the Tribunal that it be allowed to operate until such time as this matter is finally disposed of by the Tribunal. The Applicant filed its appeal of the Registrar’s order on March 20, 2012. Upon receipt of the notice of pre-hearing scheduled for April 23, 2012, Mr. Reynolds, on behalf of the Applicant, requested that this motion be heard as the Applicant, which is currently without a CVOR and therefore unable to operate, will suffer significant financial loss, as will its drivers. The Applicant did not file a motion record.
In submissions, Mr. Reynolds acknowledged that the CVOR certificate under which the Applicant has been operating was granted on March 2, 2011 subject to terms and conditions, namely;
(a) that the Applicant not fail a facility audit overseen by the Ministry of Transportation for Ontario,
(b) that the Applicant not have an overall safety violation rate exceeding 50%, and
(c) That the Applicant not have an out of service violation rate exceeding 35%.
Mr. Reynolds further acknowledged that in the past year there have been problems with the Applicant’s record. It is alleged that the overall safety violation rate is 124.6% for example. However, there was no intervention by the Ministry at any time prior to the one year expiry of the CVOR and no opportunity to explain or refute some of the information contained within the commercial vehicle operator record on which the Registrar is relying. It is unusual he submitted not to hold a show cause hearing for such purpose. In a situation where cancellation of a certificate is being sought, the operator is permitted to operate pending the appeal. The Applicant is not being afforded that opportunity with the result that the business may not financially survive until such time as this hearing is completed.
Mr. Moore, in submissions, stated that the Tribunal does not have jurisdiction to grant the relief sought by the Applicant. This Applicant was granted a CVOR certificate pursuant s. 17(1.1) of the Act, a certificate subject to the terms and conditions as noted above and which expired on March 2, 2012. Further, as stated in the “Performance Conditions” (Exhibit 1, Tab B of the Respondent’s Motion Record):
Prior to the expiry date of your certificate you will be required to meet the terms and conditions set out by the Deputy Registrar of Motor Vehicles. If the above conditions are not met any further application to re-instate your certificate will result in an Order to Refuse.
The Registrar takes the position that pursuant to s. 17 of the Act, this certificate is, in effect, non-renewable. A new application was required. The Registrar has considered the application and refused to issue the certificate. The right of appeal from that decision is by way of s. 50 of the Act. Pursuant to s. 50(2), the Tribunal may ”confirm, modify or set aside the decision of …the Registrar. Mr. Moore submits that what the Applicant is asking of the Tribunal is that it orders the issuance of the certificate pending an appeal which it has no jurisdiction to do.
The Tribunal carefully considered the submissions of the parties. The Tribunal’s jurisdiction on appeal is as set out in s. 50(2) of the Act. The Tribunal accepts Mr. Moore’s submission that what is before the Tribunal is a “refusal to issue a certificate’ pursuant to subsection 17(3) and (3.2) of the Act. For the Tribunal, at this stage of the proceedings, to order the issuance of the certificate it would effectively be usurping the authority of the registrar in a regulatory regime. There is no jurisdiction to do so. Further, even if there was jurisdiction, there was no evidence before it on which to base any such decision.
The Tribunal agrees with Mr. Reynolds; this is an unusual set of facts. His client was in operation; now it is not and there is no ’stay’ of the Registrar’s decision as there can be in certain renewal situations for example . The Tribunal notes that as a result, the Applicant may be in a position of economic peril, but, however sympathetic one might be in the circumstances, absent jurisdiction, relief cannot be granted. What the Tribunal can do is to ensure the matter is heard expeditiously.
Therefore, a pre-hearing in this matter, on consent of the parties, will not be required. Further, and on consent of the parties, the hearing will take place on April 19, 2012 at the Tribunal’s Chambers, 20 Dundas Street West, 5th floor, Toronto, commencing at 9:30 am.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released on: April 3, 2012