Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 7264/CVOR
CASE NAME: 7264 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 47(1) to Cancel the Commercial Vehicle Operators’ Registration Certificate and to Seize the Plate Portion of all Permits Issued
1556854 Ontario Ltd. Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Vivek Sharma, Agent
For the Respondent: Douglas Lee, Counsel
Heard in Toronto: June 25, 2012
DECISION AND 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 February 28, 2012 pursuant to section 47(1) to cancel a Commercial Vehicle Operators Registration (“CVOR”) certificate and to seize the plate portion of any permits issued.
In summary, the grounds for the Order of Cancellation and Seizure, are that the Registrar, having considered both the Applicant’s safety record and the safety record of a person related to the Applicant, has reason to believe the Applicant will not operate safely.
PRELIMINARY MATTERS
The Applicant’s Agent acknowledged and waived his right to counsel. Counsel for the Registrar asked if the Applicant required an interpreter. The Tribunal advised the Applicant’s Agent that if he wished to have an interpreter, it would be his responsibility to retain and compensate an independent individual. The Applicant’s Agent indicated he could understand the proceedings and that he was comfortable in proceeding.
EVIDENCE AND FACTS
Registrar’s Evidence
In his opening statement, Counsel for the Registrar indicated that the Registrar’s concern was with the safety record of the Applicant and the safety records of two related companies, Joint Carrier Inc. and 2184715 Ontario Inc. (“Superdeck”), the CVOR certificates of both of which have been cancelled. Counsel stated the Applicant “is just another version” of the previous certificate holders and will also not operate safely.
The evidence of the Registrar consisted of books of documents and the testimony of and Ontario Provincial Police Officer Kelly Bond and Daniel Ramer, a Carrier Safety Rating Administrator with the Ministry of Transportation.
The following is a summary of the relevant evidence:
Kelly Bond is an officer based in the Kenora, Ontario Highway Safety Division of the Ontario Provincial Police. Officer Bond works in partnership with Officer John McDougall patrolling the area from the Manitoba border to the English River. They normally deal with aggressive driving. Officer Bond testified that over a period of time, the officers begin to “run into the same people” and start to see relationships among the companies whose vehicles they have stopped.
Officer Bond provided testimony relating to Exhibits 4(a) and 4(b), comprising his notes and the notes of Officer McDougall relating to a number of commercial vehicle traffic stops and inspections they conducted over the period July 20, 2009 to December 11, 2011. In the case of the companies represented by the traffic stops recorded in these notes, Officer Bond indicated that it “took some time” to see the pattern of relationships because they were numbered companies but that once the pattern was identified, he started to record them accordingly.
Officer Bond’s testimony on the traffic stops comprised detail on the driver, tractor and trailer licence and/or Vehicle Information Number (“VIN”) and the registered ownership of the equipment. In summary, the evidence in Exhibits 4(a) and 4(b) indicates:
On October 28, 2009 and February 28, 2010, driver H.H. was stopped when driving tractors and trailers registered to Superdeck (Tabs 3 and 8);
On February 20, 2011, driver P.S. was stopped driving a tractor and trailer registered to Superdeck (Tab 24);
On October 28, 2009, June 13, 2010, October 11, 2010, August 15, 2011, August 21, 2011, August 25, 2011 (Tabs 3,13,16, 28, 29, 30), the drivers indicated either that they needed to contact “Joshi” to obtain paperwork or that they were working for Rajiv Joshi. In the 2009 and 2010 incidents, the equipment was registered to Superdeck. In the 2011 incidents, the equipment was registered to 2275322 Ont. The drivers stopped on August 15 and 21, 2011 both told police the company they worked for was actually Superdeck. On August 15, 2011, the driver provided police with a business card for Rajiv Joshi at Superdeck at the address of 6401 Langstaff Rd., Vaughn;
On October 16, 2010, after being stopped driving equipment registered to Superdeck at Kings Cross and Langstaff Roads, Brampton, the driver could not produce his owner/operator permit. He phoned Rimple Joshi by cellphone. The permit was faxed to the officers the following day. The address on the permit is 3938 Cottrelle Blvd., Brampton (Tabs 17, 18);
On February 20, 2011, the tractor stopped was registered to Superdeck at the Kings Cross Rd. address with a VIN ending in 014918 (Tab 24);
On March 20, 2011 and April 29, 2011, the tractors stopped were registered to Rising Star Carriers at the Cottrelle Blvd. address. The trailers were registered to the Applicant at 6401 Langstaff Rd., Vaughn (Tabs 16, 17);
After the April 29, 2011 traffic stop, Officer Bond received a call from T.R. who identified himself as a safety consultant. Officer Bond testified that T.R. expressed his concerns that the police were targeting Superdeck, notwithstanding the fact that Officer Bond advised him that the stop involved Rising Star Carriers.
On August 15, 2011, the tractor and trailer stopped were registered to 2275322 Ont. Inc. with an address on Prairie Rose Circle, Brampton. The VIN number for the tractor ends in 014918, the same VIN on the tractor stopped on February 20, 2011 and registered to Superdeck.
On November 17, 2011, the driver stopped was operating a tractor registered to 2275322 Ontario Inc. at Prairie Rose Circle and a trailer plated F1291Z with VIN ending 080415 and registered to Superdeck on Langstaff Rd, Brampton. Officer Bond testified that the trailer plate was one which had been seized. Among documents produced were gas receipts issued to Superdeck, a letter authorizing 2275322 Ontario Inc. to use the IFTA of Rising Star Carriers and a shipping tally showing the carrier as Superdeck. (Tab 33).
On December 11, 2011, the stopped tractor was registered to 2275322 Ontario Inc. at Prairie Rose Circle and the trailer was registered to 1480119 Ont. Ltd at 13 Squirreltail Way, Brampton. The bills of lading show the carrier as Superdeck (Tab 34). The trailer VIN ending in 080415 is the same as the one stopped on November 17, 2011.
Daniel Ramer is a Carrier Safety Rating Administrator with the Ministry of Transportation. His responsibilities include the review and analysis of the safety performance of CVOR certificate holders and the recommendation of sanction activity.
Mr. Ramer testified to the responsibilities of a CVOR certificate holder which are set out in the Public Guideline issued by the Ministry of Transportation (Exhibit 3, Tab 26) and include, among others, employing qualified and licensed drivers; monitoring their safety performance; keeping vehicles in good, safe condition; ensuring load security; and keeping required records. Points are assigned for collisions, convictions and inspections and weighted to determine the carrier’s performance which is recorded and assessed over a two year rolling window and is expressed as an overall safety violation percentage. At pre-determined percentage levels, the Ministry intervenes or considers sanctions. As set out in the Public Guideline, warning letters are issued at 35%, a request for a facility audit is triggered at 50%, an interview at 85% and a sanction analysis at 100%. Mr. Ramer testified that sanctions are also considered in cases where other events such as a wheel loss or impoundments have occurred.
The Applicant’s Safety Record Review in January, 2012 (Exhibit 3, Tab 14) indicates an overall safety violation rate of 83.5% with collisions and convictions contributing 33.76% and 44.51% respectively. The Commercial Vehicle Operator Summary dated December 14, 2011 provides detail on the Applicant’s record (Exhibit 3, Tab 16). As at July 1, 2011, province-wide statistics indicate that only .3% of all CVOR certificate holders have a violation rate of greater than 85% (Exhibit 3, Tab 27) and 82.4% of all certificate holders have a violation rate of less than 15%. Mr. Ramer testified that a carrier with a violation rate of 83.5% would be in the “bad graces” of the Ministry. The Applicant’s Safety Record Review shows that its overall Out of Service rate, that is the number of times a vehicle is inspected and taken out of service, is 42.86%, which Mr. Ramer described as “quite high”.
Based on the Applicant’s safety record and safety rating of “Unsatisfactory”, on January 5, 2012 the Registrar issued, to the Applicant, a Notice of Cancellation of its Commercial Vehicle Operator’s Registration (“CVOR”) and Seizure of the plate portion of permits for all commercial motor vehicles and trailers registered in its name (Exhibit 3, Tab 13).
Mr. Ramer testified that the factors leading to the issuance of the Notice of Cancellation and Seizure were a September 25, 2011 collision which resulted in a fatality (Exhibit 3, Tab 18) and concerns about the relationship between the Applicant and both Superdeck and Joint Carrier Inc. The CVOR certificates of Superdeck and Joint Carrier Inc. were cancelled following an unsuccessful September 22, 2011 appeal of a Cancellation and Seizure Order before this Tribunal. (Exhibit 3, Tab 5). The Applicant’s Safety Record Review sets out that three drivers employed by the Applicant had been employed by Superdeck, Joint Carrier Inc. and/or another apparent related company, Rising Star Carriers Ltd.
On February 1, 2012, the Registrar issued a Cancellation and Seizure Order to the Applicant. On February 21, 2012, a Show Cause meeting was held, the minutes of which were entered into evidence as Exhibit 3, Tab 2. The Deputy Registrar of Motor Vehicles, Brian Swan (the “Deputy Registrar”), Program Standards Manager Steve Ferlatte and Mr. Ramer attended the meeting on behalf of the Ministry of Transportation. The Applicant’s Agent, Mr. Sharma, who is the Applicant’s president and sole shareholder, attended the meeting with his safety consultant, T.R.
Mr. Ramer testified that at the Show Cause meeting, Mr. Sharma advised that although he had once worked for Superdeck as a driver, he had had no involvement with that company since acquiring his own CVOR certificate in September 2010. Mr. Sharma stated that Superdeck was operated by his sister Rimple Joshi. However, when asked again later in the meeting, he indicated that Superdeck helped get loads for the Applicant. The Deputy Registrar reminded Mr. Sharma that he had represented Superdeck at a pre-hearing before this Tribunal and Mr. Sharma stated he did so because his sister was ill.
When asked at the Show Cause meeting about his relationship to Joint Carrier Ltd., owned by his brother-in law Rajiv Joshi, Mr. Sharma stated that Mr. Joshi was now working for the Applicant. The driver list provided by Mr. Sharma (Exhibit 3, Tab 3) shows Mr. Joshi listed. Mr. Ramer advised Mr. Sharma that when a permit application from the Applicant dated June 6, 2011 was received by the Ministry (Exhibit 3, Tab 8), Mr. Ramer contacted the permit service company Permax, and was advised that it was signed by Mr. Joshi.
At the Show Cause meeting, Mr. Sharma advised that his equipment was kept at 6401 Langstaff Rd., Vaughan. When questioned further by the Deputy Registrar, Mr. Sharma indicated that Superdeck, among other companies, was also located at that address. Mr. Sharma advised that he had hired C.V. as a full time mechanic. Mr. Ramer testified that he later investigated to determine if C.V. had a valid mechanic’s license. Exhibit 3, Tab 9 contains the internal Ministry correspondence which confirms that C.V. is not licensed.
Mr. Ramer testified to the Tier 3 Audit Notes and supporting documents entered into evidence as Exhibit 3, Tab 15. These notes confirm that D.P. is the president of 2275322 Ontario Inc. and that this carrier’s vehicles are also kept at the Langstaff Rd. address. The auditor contacted 2275322 Ontario Inc.’s insurer broker Bryson and Associates which also represents the Applicant. The agent indicated that Rajiv Joshi was listed as a driver for 2275322 Ontario Inc. and provided a copy of a “Request for Change” form signed by Mr. Joshi which shows the typewritten Applicant’s name scratched out and the 2275322 name inserted by hand. Similarly, an Ontario Drive Clean Program Vehicles Inspection Report dated June 10, 2011 shows the Applicant’s name and “Super Deck Transport” both written in hand at the top. The registration for the Applicant’s vehicle plated 3894PJ is signed by Rajiv Joshi. The audit notes indicate Mr. Sharma could provide no explanation for this other than he must have been away when the signature was required. A further undated document with “Superdeck Transport” written at the top and signed by Rimple Joshi authorizes Mr. Sharma to act on Superdeck’s behalf “for all ministry related matters.”
Mr. Ramer also provided testimony regarding the safety issues discussed at the Show Cause meeting. Mr. Sharma indicated that when drivers are hired, their applications are reviewed by safety consultant T.R., a road test is conducted and driver CVOR abstracts are reviewed. T.R. stated drivers are trained in logs, load security and trip inspections. After Mr. Sharma stated that the driver involved in the collision which led to a fatality on September 2011, was hired in August 2011, Mr. Ramer asked if Mr. Sharma was aware of that driver’s July 2011 careless driving conviction and Mr. Sharma stated he was not. When asked if that driver had been trained, T.R. stated he had been and advised that he makes recommendations to his clients who make hiring decisions.
With regard to load security, Mr. Sharma indicated his last training was in 2008 but he kept up to date by reading “Truck News”. When asked if he could pass a load security test, he indicated he was unsure and advised “maybe his drivers are not properly trained”. He then stated that driver J. Y. would teach load security to his drivers. When confronted with the fact that J.Y. had been involved in two incidents involving load security, Mr. Sharma indicated he would hire someone on February 27, 2012 to train his drivers. Exhibit 3, Tab 16 is a CVOR abstract showing that J.Y. was cited for an insecure load at an inspection on July 28, 2011.
Following the February 21, 2012 Show Cause meeting, the Registrar issued the February 28, 2012 Cancellation and Seizure Order (Exhibit 1).
With regard to the safety record of Superdeck, Mr. Ramer testified that he was present at the May 5, 2011 Show Cause meeting held following the issuance of a Notice of Cancellation and Seizure to that company (Exhibit 3, Tab 20). Superdeck’s April 2011 Safety Record Review (Exhibit 3, Tabs 21 and 22) indicates its safety violation rate was 188.59%. Mr. Ramer highlighted that Mr. Sharma’s sister, Rimple Joshi, is the President of Superdeck but during the Show Cause meeting, she indicated she did the accounting for the company. T.R. also attended the May 5, 2011 meeting as the safety consultant for Superdeck.
Exhibit 3, Tab 4 provides an overview of the affiliations between Superdeck, Joint Carrier and the Applicant. Also entered into evidence were driver records for Mr. Sharma, Rajiv Joshi and Rimple Joshi which set out their address histories. Rajiv Joshi’s history shows his address as 18 Tyler Ave. from March 3, 2004 to April 2, 2008 when it changes to 3984 Longo Circle, Mississauga. On January 15, 2009, it changes back to Tyler Ave. Mr. Sharma’s history shows his address as 3984 Longo Circle from September 30, 2002 to February 19, 2006 when it changes to 18 Tyler Ave. On July 8, 2008, it changes back to 3984 Longo Circle.
Mr. Ramer testified that the concerns of the Registrar with regard to the Applicant are that the Applicant “is just a front for Superdeck”. He stated that the Applicant has the same safety issues and highlighted the Applicant’s proposal that load security be taught by driver J.Y., who had been involved in load violations; the fact that Applicant’s mechanic does not have a Class A licence; and the fact that drivers employed by the Applicant had formerly been employed by Superdeck and Joint Carrier Inc.
Applicant’s Evidence
Vivek Sharma is the President and sole shareholder of the Applicant. Mr. Sharma testified that he immigrated to Canada in 2001. He was sponsored by his sister, Rimple Joshi, and lived in his sister’s home. His brother-in-law, Rajiv Joshi, was already involved in the trucking business and asked Mr. Sharma to join the business. Mr. Sharma became an owner/operator in 2003 and drove for seven years before starting his own company in 2010. He now lives on his own and pays rent.
The Applicant keeps its equipment at 6401 Langstaff Rd, Vaughan where, in addition to Superdeck, ten to fifteen companies are located. The Applicant maintains its own business accounts and records. Mr. Sharma is personally responsible for all bills for the company. However, if there is an area he is unfamiliar with, he will seek help from his sister. He testified that because he had no knowledge, he asked Rajiv Joshi to assist him with the Permax permit. With respect to appearing at the pre-hearing before this Tribunal on behalf of Superdeck, Mr. Sharma stated he did this only because his sister was ill.
On cross-examination, Mr. Sharma stated that when he began his business, he asked either Rimple or Rajiv Joshi for assistance but he now has the knowledge. When the Applicant had more than two trucks, Rajiv Joshi was driving for him. With regard to the vehicle permit issued to the Applicant for plate 3894PJ and signed by Rajiv Joshi, Mr. Sharma stated that Mr. Joshi signed only because he “was not there” and he trusts Mr. Joshi.
Mr. Sharma testified that while Rising Star Carriers may be related to Superdeck, it is not related to the Applicant which has no relationship with Superdeck or any other companies. On cross-examination, he clarified that Superdeck is now a load broker and he does have a business relationship with Superdeck which arranges loads for the Applicant.
With respect to the driver involved in the accident resulting in the fatality, Mr. Sharma stated he dismissed the driver after the accident. With respect to the Applicant’s mechanic, Mr. Sharma stated he checked the mechanic’s references and that the mechanic does not perform major work; for that Mr. Sharma uses outside sources.
Mr. Sharma also indicated that the Ministry of Transportation records were incorrect relating to the kilometers driven by the Applicant. He submitted a revision (Exhibit 6) indicating a total of 690,801 kilometers driven in Ontario as opposed to the Ministry record which shows 491,600 kilometers driven. On cross-examination, Mr. Sharma stated that the numbers on the charts he submitted are from computerized records. He agreed that it was his responsibility to communicate information to the Ministry. He stated that his “safety guy” called to get the forms required to update mileage several times with no success: “if you call twenty five times, once in twenty five, they pick up the phone”. He agreed with Counsel for the Registrar that updating is important and stated that he himself called several times, but no one sent him what was needed.
Mr. Sharma also submitted a Commercial Vehicle Operator Summary dated June 22, 2012 (Exhibit 5). Mr. Sharma stated that the overall safety violation rate of 80.2% on this summary shows an improvement from the 83.6% rate shown on the Ministry summary dated December 14, 2011. On cross-examination, Counsel for the Registrar asked Mr. Sharma about the details of the March 21, 2012 incident listed on that report which shows both a load security and a brake problem, one month after the Show Cause meeting where load security was raised as an issue.
THE LAW
The statutory authority for the actions of the Registrar and the jurisdiction of the Tribunal are set out in the Highway Traffic Act (the Act), as follows:
Suspension and cancellation of licence, etc., general
- (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) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to 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;
(2.1) Subsection 17 (4) applies, with necessary modifications, for the purpose of determining who are related persons under clause (1) (f).
Related Person
17.(4) An applicant is related to a person for the purpose of subsection (3) if,
(a) the applicant and the person are related individuals;
(b) either the applicant or the person is a partner of the other or was a partner of the other or they have or have had partners in common;
(c) either the applicant or the person, directly or indirectly, controls or controlled or manages or managed the other; or
(d) the applicant and the person have or have had common officers or directors or they are or have been controlled, directly or indirectly, by the same shareholders.
Power to seize number plates
(8.1) If the plate portion of a permit is suspended or cancelled under clause (1) (a), the Registrar may order that the plate portion of the permit or the number plates issued in connection with the plate portion of the permit be seized and any police officer or officer appointed for carrying out this Act may seize the plate portion of the permit and the number plates and deliver them to the Ministry.
Definitions, “commercial motor vehicle” etc.
(9) For the purposes of this section and section 47.1,
“commercial motor vehicle,” “operator” and “safety record” have the same meanings as in subsection 16 (1)..
Notice of proposed action, s. 47
47.1 (1) Before taking any action under clause 47 (1) (a) or (c) or subsection 47 (2), the Registrar shall notify the person whose plate portion of a permit or CVOR certificate is to be affected of his or her proposed action.
- (1) Every person aggrieved by a decision of the Minister made under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
Powers of Tribunal
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or Registrar.
ISSUE
The issues before the Tribunal are first, whether there is reason to believe, having regard to the safety record of the Applicant or of a person related to the Applicant, that the Applicant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety and, second, if there is such reason, what order the Tribunal should make.
ANALYSIS
In reaching its conclusions, the Tribunal has considered the evidence of the parties and the three decisions of this Tribunal submitted by Counsel for the Registrar for consideration: Re: Anpro Excavating and Grading Ltd., [2010] O.L.A.T.D. No. 227; Re: 1772065 Ontario Inc., [2010] O.L.A.T.D. No. 69; and Re: Kingston Transport Carrier Inc., [2011] O.L.A.T.D. No. 204.
The Applicant’s CVOR certificate was issued on September 29, 2010. The Safety Record Review of the Applicant dated January, 2012 indicates the Applicant’s overall safety violation rate of 83.5%. Province wide statistics indicate that only .3 per cent of all CVOR certificate holders have a violation rate greater than 85% and only .6% have a violation which exceeds 80 per cent. The incidents which contributed to the Applicant’s safety violation rate include a collision on September 25, 2011 which resulted in a fatality. The Commercial Vehicle Operator Summary indicates the driver’s speed was too fast for the conditions, that the driver was inattentive and the load was insecure. The summary also includes another incident on July 28, 2011 which cites an insecure load.
Mr. Sharma, the president and sole shareholder of the Applicant, does not appear to have focused his attention on the responsibilities of a CVOR certificate holder. The minutes of the Show Cause meeting held on February 21, 2012 provide no evidence of a comprehensive plan to improve safety, but do indicate a lack of commitment to safety in three key areas.
With regard to hiring qualified drivers, Mr. Sharma was unaware that the driver involved in the September 25, 2011 fatal collision was convicted for careless driving only a month before he was hired by the Applicant even though he stated a number of pre-hiring checks were performed. Safety consultant T.R. made it clear at the meeting that hiring decisions were Mr. Sharma’s. In his testimony at this Tribunal, Mr. Sharma stated he had fired that driver but provided no explanation as to how he had come to be hired. Nor did he give any indication of what measures are in place today to prevent a similar hire.
With regard to load security, Mr. Sharma initially proposed J.Y., the driver involved in a July 28, 2011 incident citing an insecure load, as a trainer and only proposed hiring someone else after having the record of that driver pointed out to him. The meeting minutes indicate that Mr. Sharma was not confident of his own knowledge on securing loads and admitted his drivers were likely not properly trained.
Finally, with regard to equipment, Mr. Sharma indicated he had hired a mechanic who would inspect his vehicles and train drivers to do brake adjustments. That mechanic, however, does not hold a valid mechanic’s licence. In his testimony, Mr. Sharma stated that “major work goes outside” but did not address why he retained an unlicenced mechanic.
Mr. Sharma did submit a Commercial Vehicle Operator Summary dated June 22, 2012 as evidence of improvement in the Applicant’s safety record. However, the Cancellation and Seizure Order that is the subject of the appeal before this Tribunal is based on the safety record of the Applicant pre-dating its issuance on February 28, 2012. The Tribunal does note that consideration of the summary submitted by the Applicant would not advance its case given it indicates only a very slight reduction in the overall safety violation rate and in fact includes an additional incident on March 21, 2012 citing both a load security issue and a brake problem.
Mr. Sharma testified that the kilometers travelled recorded by the Ministry of Transportation were incorrect and that the Applicant’s overall safety performance is therefore miscalculated. The Tribunal notes, however, that although Mr. Sharma acknowledged it was his responsibility to do so, he did not persist in any efforts to ensure updated information was provided.
The evidence before the Tribunal is of an “Unsatisfactory” safety rating and of a series of insufficient and/or unconvincing responses to issues when the opportunity was presented to Mr. Sharma at the Show Cause meeting. Nor were further explanations or indications of proactive attention to the safety issues provided in Mr. Sharma’s testimony before this Tribunal. The Tribunal therefore finds that the safety record of the Applicant provides reason to believe that the Applicant will not operate safely or in accordance with the Act and regulations. This finding is sufficient for the Tribunal to direct the Registrar to carry out the Cancellation and Seizure Order dated February 12, 2012. However, the Tribunal will also address the safety records of Superdeck and Joint Carrier Inc. and the relationship of those companies to the Applicant.
The safety records of Superdeck and Joint Carrier Inc. are not in question. The CVOR certificates of both were cancelled following an unsuccessful September 22, 2011 appeal before this Tribunal of a Cancellation and Seizure Order. In his reasons for decision, Tribunal member Alan Higdon wrote:
The documentation and testimony clearly indicate a reckless disregard by those two carriers for following the safety standards considered essential by the Ministry of Transportation for the safe operation of commercial vehicles.
It is the nature of the relationship between the Applicant and Superdeck and Joint Carrier Inc. which must be established.
There is a significant amount of evidence before this Tribunal indicating there is a web of interrelationships among the Applicant, Superdeck, Joint Carrier Inc. and two additional companies, Rising Star Carriers and 2275322 Ontario Inc.:
There is a commonality among drivers for the companies. Officer Bond’s testimony indicates that driver H.H., included on the Applicant’s list of drivers provided to the Ministry at the Applicant’s Show Cause meeting, was stopped while driving for Superdeck in 2009 and 2010 and that P.S., the driver involved in the September 25, 2011 fatal collision while driving for the Applicant, was driving for Superdeck in 2011. Rajiv Joshi was listed as a driver for the Applicant in the list provided by Mr. Sharma at the Applicant’s Show Cause meeting.
There is a commonality among company addresses. The Applicant keeps its equipment at 6901 Langstaff Rd., Vaughn, Superdeck’s current business address. However, on the permit faxed to Officer Bond in October, 2010, Superdeck’s address is 3938 Cottrelle Rd., Brampton, the same address as Rising Star Carriers.
The Applicant’s trailers have been used with tractors registered to Rising Star Carriers. The records of both the March 20 and April 29, 2011 traffic stops indicate the tractors were registered to Rising Star Carriers at the Cottrelle Rd. address and the trailers were registered to the Applicant at Longo Circle, Mississauga. Officer Bond testified that following the April 29, 2011 stop, he received a call from T.R., the safety officer who accompanied the Applicant to its Show Cause meeting, in which T.R. asked why the police were targeting Superdeck, notwithstanding the fact that Officer Bond advised T.R. the stop involved Rising Star Carriers and the Applicant’s trailer.
Rajiv Joshi appears to have an active role in companies other than Joint Carrier. On six occasions, the drivers stopped by police either called or referred the officers to Mr. Joshi. On three of these occasions, the drivers were operating equipment registered to Superdeck; on the others, they were operating equipment registered to 2275322 Ontario Inc. On two of the latter occasions, the drivers advised the police that they were in fact working for Superdeck and one of the drivers provided a Superdeck business card for Rajiv Joshi.
The Applicant and 2275322 Ontario Inc. use the same insurance agent. Information provided by the agent indicated Rajiv Joshi is listed as a driver for 2275322 Ontario Inc.
There is also documentary evidence which supports the existence of a business relationship between the Applicant and Rajiv Joshi and/or Superdeck:
The Request for Change form submitted by 2275322 Ontario Inc. to its insurance broker shows the Applicant’s name has been scratched out and is signed by Rajiv Joshi.
The June 10, 2011 an Ontario Drive Clean Program Vehicles Inspection Report has both the Applicant’s name and “Super Deck Transport” written in hand at the top.
The registration for vehicle plated 3894PJ registered to the Applicant is signed by Rajiv Joshi.
The June 6, 2011 Permax permit application by the Applicant is signed by Rajiv Joshi.
There is an undated document authorizing Mr. Sharma to act on behalf of Superdeck in “all ministry related matters”.
Mr. Sharma is the president and sole shareholder of the Applicant. The principal of Superdeck, Rimple Joshi, is Mr. Sharma’s sister. The principal of Joint Carrier Inc., Rajiv Joshi, is Mr. Sharma’s brother-in-law. Mr. Sharma testified that there is no business relationship between the Applicant and Superdeck and Joint Carrier Inc. other than the fact that Superdeck, among others, acts as a load broker for the Applicant. Rather, he indicated that he has only been provided with assistance from Mr. and Mrs. Joshi when he began the business and on occasions when he did not possess the requisite knowledge. In the case of the permit application, he sought assistance because he did not have the knowledge to complete the document himself. The vehicle registration form was signed by Mr. Joshi because Mr. Sharma must have been unavailable. Mr. Sharma offered no explanation as to how 2275322 Ontario Inc. obtained an insurance Request for Change form on which the Applicant’s name is typewritten and then scratched out. Nor was any explanation offered as to why safety consultant T.R. insisted the police were targeting Superdeck after police had stopped a driver operating equipment registered to Rising Star Carriers and the Applicant.
Rajiv Joshi was either contacted or referred to as the “boss” when drivers were stopped by police on six occasions: on three of those occasions, the equipment was registered to Superdeck, Rimple Joshi’s company; on the other three occasions, the equipment was registered to 2275322 Ontario Inc., the owner of which is D.P. The evidence indicates that the drivers working for both these companies clearly believed Rajiv Joshi to be in charge. At Superdeck’s Show Cause meeting, Ms Joshi herself suggested her involvement with Superdeck was only as an accountant.
Counsel for the Registrar argued that the documents signed by Rajiv Joshi for the Applicant are not those which would normally be executed by a driver, the job Mr. Sharma testified Mr. Joshi once held with the Applicant. The Tribunal agrees. The functions represented by documents such as a permit application and a vehicle registration are managerial in nature. Given these documents, the evidence indicating a the web of interrelated companies including the Applicant, and the evidence indicating Mr. Joshi to be “Operation Manager” or “boss” at two of those companies, it would stretch credulity to conclude that Mr. Joshi does not provide either direct or indirect managerial control of the Applicant. On a balance of probabilities, the Tribunal therefore finds, in accordance with section 17(4)(c) of the Act, that the Applicant is related to Superdeck and Joint Carrier Inc. and that their indisputable poor safety records provide reason to believe that the Applicant will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety.
ORDER
Pursuant to the provisions of section 50(2) of the Act, the Tribunal orders the Registrar to carry out the Cancellation and Seizure Order dated February 28, 2012 and to cancel CVOR certificate 167-983-396 issued to 1556854 Ontario Ltd. and to seize the plate portion of all commercial vehicles and trailers registered in its name.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released on: July 12, 2012