Ishar Roadlines Inc. v. Registrar of Motor Vehicles, 2012 CanLII 50178

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-08-30

FILE:

7211/CVOR

CASE NAME:

7211 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 Certificates and to Seize the Plate Portion of all Permits Issued

Ishar Roadlines Inc,

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicants:

Gordon V. Meakings, Counsel

For the Respondent:

Patrick Moore, Counsel

Heard in Toronto:

August 15 & 16, 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 November 8, 2011 pursuant to section 47(1) to cancel a Commercial Vehicle Operators Registration (“CVOR”) certificate and to seize the plate portion of any permits issued.

BACKGROUND

On January 12, 2011, this Tribunal issued a decision cancelling the CVOR of Shiney Express Limited and CD Transport Corp. on the grounds that there were concerns about their ability to operate safely (Shiney Express Ltd. (Re) [2011] O.L.A.T.D.). The owner of the two companies was Balour Pandher, also known as Bob Pandher. The current applicant is owned by Mr. Pandher’s sister and operated on a day to day basis by Mr. Pandher’s nephew with assistance from Mr. Pandher’s brother-in-law. The telephone, fax and cell phone numbers of the Applicant given on various occasions are identical to those used by Shiney Express and it is admitted that the offices from which the Applicant operates was that of CD Transport and Shiney Express and that, at least up to August 2011, Mr. Pandher operated his corporations from the office contemporaneously with the Applicant. The Registrar concludes from the above facts that Mr. Pandher has, or has had, direct or indirect control of the Applicant such that the deplorable safety record of Mr. Pandher’s corporations should be included in the Applicant’s record and, on that basis, the Applicant’s CVOR should be cancelled.

Mr. Pandher’s handling of the two corporations provides several grounds to support the Registrar’s position. Shiney Express withdrew its appeal at the commencement of the hearing, but on the evidence before the Tribunal it was established that it had a “catastrophic overall safety violation rate of 202.4%” (Shiney paragraph 5). Mr. Pandher then purchased an existing trucking company, CD Transport Corp, with an acceptable overall safety violation rate (VR) of 18%, and within two years had driven the VR to a totally unacceptable level, 115.7%. In addition, Mr. Pandher attempted to conceal his ownership of CD Transport from the Registrar in CVOR renewal applications in March 2008 and March 2010. The first time the Registrar discovered Mr. Pandher’s involvement was when officers of the company appeared at a Show Cause meeting with the Deputy Registrar. Mr. Pandher justified his failure to properly disclose his involvement on the fact that his accountant had not made the required changes (Shiney paragraphs 6 and 7).

THE EVIDENCE

The Tribunal heard evidence from six witnesses. Cynthia Ceccolini is a Carrier Relations Manager for FLS Transportation, a truck load brokerage company based in Montreal. She testified concerning dealings she had with Balour Pandher while entering into an agreement with the Applicant to carry loads brokered by FLS. Guy Roy is the Risk Management Director for Trans West Logistics, a transportation company operating from premises in Montreal and Mississauga. He dealt with Balour Pandher at the Brampton offices shared by CD Transport, Shiney Express and the Applicant both before and after the revocation of the two former companies CVOR certificates. Marc Lavallee is an officer with the Ontario Ministry of Transportation (MTO). He conducted a facility audit of the Applicant in September 2011 and testified concerning statements made to him during that audit and the findings he made from his review of the documents. The Registrar’s last witness was Jim Kirchner. Mr. Kirchner is a Carrier Safety Ratings Administrator. He monitors carrier performance and recommends intervention and prepares files for review by the Deputy Registrar. He attended the Show Cause meeting in this matter. He is knowledgeable about the policy and operation of the CVOR Safety Rating System. Ms Karamjit Hehar is the sole shareholder and a director of the Applicant. and her son, Gobind Hehar, is the Applicant’s dispatcher and runs the day to day operations of the Applicant. They testified about the Applicant’s operations and the relationship with Balour Pandher.

The CVOR Carrier Safety Rating system is set out in a Public Guideline (Ex 4 Tab 30). Mr. Kirchner provided highlights from this document to explain the workings of the system. All CVOR certificate holders in Ontario are given a maximum permissible threshold of violations based on the number of kilometers they will travel in Ontario per annum. Carriers incur points against that level when their trucks are involved in collisions, their drivers are charged with a traffic offence while driving a company truck or a company truck fails a roadside mechanical safety inspection. There is a threshold for each of these categories and the scores in each category are weighted and then combined for an overall safety violation rate (VR) expressed as a percentage of the maximum threshold. Points count against a carrier’s VR for a period of two years.

The system provides for the Registrar to consider interventions at certain levels. At the 35% level the system triggers a warning letter. At 50% there may be a facility audit of the carrier’s operations. At 85% a carrier may be required to attend an interview. If a carrier exceeds a 100% VR, the Registrar may consider a range of options from suspension to revocation. The interventions are permissive and the Registrar retains the right to take any steps felt necessary to ensure highway safety. It was Mr. Kirchner’s evidence that approximately 96% of carriers operate below the 35% VR level and 80% of carriers improve after intervention. From Mr. Kirchner’s statistics it appears that there are approximately 55,000 CVOR certificate holders in Ontario. Approximately 53,000 operate below 35% VR. Mr. Kirchner went on to indicate that 0.2%, or approximately 100 carriers exceed the 85% VR level and approximately 50, or 0.1% exceed the 100% threshold.

In addressing the Registrar’s concerns with the Applicant, Mr. Kirchner reviewed the Applicant’s safety record. He admitted candidly that given the Applicant’s current VR, if the relationship with Balour Pandher was not in issue, the VR would not trigger a cancellation hearing. In all likelihood the Applicant would have received a warning letter. Having stated that, Mr. Kirchner was of the view that the Applicant’s safety record showed grounds for concern because of the manner in which it mirrored the behaviour of the Pandher companies. When the Notice of Cancellation and Seizure Order was issued in November 2011 the VR was 18.34%. That analysis included the Applicant’s record back to November 2009 (Ex 3 Tab 2). At the hearing the Applicant’s overall VR was 43.6% based on a two year record (Ex 8). Mr. Kirchner suspects, a suspicion that was largely confirmed in the Applicant’s evidence, that the Applicant did not start operating until the cancellation of the CVOR certificate of CD Transport. The Applicant operated one truck between November 2010 and February 2011 when it increased its fleet size to four trucks and seven drivers. Measuring the Applicant’s VR for the period from February 15, 2011 to June 27, 2012 the Applicant’s VR was 62.35% (Ex. 7). The Tribunal notes the recent trend set out in Ex. 7 for the period February 9 to June 27, 2012 is downwards to a VR of 23.41%.

The breakdown of the individual safety categories shows that, overall, the Applicant’s vehicles are well maintained. Safety inspections were conducted on vehicles operated by the Applicant on thirty-one occasions between July 2010 and on three occasions out-of-service defects were discovered (Ex.8) for a VR rate in that category of 9.68%. Collisions were a concern as were traffic violations; the former being at 46.3% of threshold and the latter at 55.02%. Convictions remained high throughout the analysis period reaching 80.37% in the period from February 2011 to June 2012 and 53.67% for the recent four month period from February 2012 to June 2012.

Mr. Kirchner covered the registration history of the Applicant. The Applicant was issued a CVOR certificate on July 6, 2007. For the next several years it had a 0% VR. Mr. Kirchner was of the view that it was not operating during that period. Ex. 8 supports Mr. Kirchner’s view as it shows the Applicant had no registered trucks from the date of issuance through the July 1, 2010 reporting period. The first indication of activity with this carrier was an inspection on December 22, 2010 when a vehicle operating under the Applicant’s CVOR was inspected at the Heyden Truck Inspection Station and found to have no defects.

From information received following the December 22, 2011 Show Cause meeting, Mr. Kirchner analyzed the trucks and drivers working for the Applicant. He determined that all of the drivers had worked for one of the Balour Pandher companies prior to working for the Applicant. Equally, all of the trucks used by the Applicant had previously operated under the CVOR of one of the Balour Pandher companies. At least one driver had also operated under a trucking authority issued by British Columbia to GTB Trucking. Mr. Kirchner determined that GTB Trucking is owned by Balour Pandher.

Marc Lavallee has been an MTO officer for a period of nine years and a facilities auditor for five and a half years. He was asked by his supervisor at the end of August 2011 to conduct a Tier 3 audit on the Applicant to confirm or deny the suspicion that it was affiliated with the Balour Pandher companies, Shiney Express and CD Tansport. He determined that all three companies operated from the same address, Unit 42, 19 Kenview Boulevard, Brampton. On his first visit to the Kenview premises he was unable to locate the offices but on a second visit on September 26, 2011 he found a side door entrance and spoke to a female employee. She advised that Mrs. Hehar, the owner, was not in the office but was expected at around 11:00 a.m.

On returning at 11:00 a.m. Officer Lavallee conducted an entrance interview with Ms. Hehar and her son, Gobind. He then asked Ms Hehar about the involvement of Balour Pandher in the operation of the Applicant, Ishar Roadlines. Ms Hehar denied that Balour Pandher was involved in any manner, a position both she and her son advanced before this Tribunal. Ms Hehar advised Officer Lavallee that Balour Pandher was driving for a food distribution company called Nanaka. Officer Lavallee then asked for extensive disclosure of the Applicant’s records such as driver files and logbooks, fuel receipts, trip envelops, bills of lading, repair records and invoices. He noted that neither Ms Hehar nor her son, Gobind, appeared to have any knowledge of the operations or what documents he was referring to. They were unsure how many drivers they had but thought there were seven. They did not know their names. Gobind informed him that he had little experience in the trucking industry but knew how to get loads. In her evidence, Ms Hehar testified later that until June 2011 she had been employed full-time elsewhere in an unrelated industry. When Officer Lavallee explained that he wanted the documents to determine if Shiney Express was operating as Ishar Roadlines, Ms Hehar confessed that it was and that she and her brother, Balour Pandher, were operating Ishar Roadlines together with Gobind Hehar assisting them.

All of the documents were not immediately forthcoming. For instance, when Officer Lavallee asked for driver abstracts, Gobind Hehar appeared to look for them but returned to state that they were with the accountant. He was asked to contact the accountant and have them faxed over. He appeared to call the accountant and came back and informed Officer Lavallee that the accountant was on vacation for the next week. He could not explain what possible interest the accountant would have in driver abstracts. Officer Lavallee received the same answer when he asked about driver logbooks. Officer Lavallee did receive personnel files for drivers. He noted that the pay records showed Shiney Express as the entity which paid the drivers. In particular, one driver contractor, Amritpal Trucking Inc. used Ishar Roadlines logbooks in April and May 2011 but submitted invoices to Shiney Express and received an accounting on Shiney Express letterhead (Ex. 3 Tab 9).

It appears that what triggered Officer Lavallee’s audit was a report from Guy Roy of Trans West Logistics. In his role as Risk Management Director of Trans West Logistics, Mr. Roy conducted site checks on carriers that Trans West used as subcontractors when its trucks were tied up. Trans West has a roster of carriers that it will use in such situations. Shiney Express was one such carrier. Mr. Roy visited Shiney Express at the Kenview Boulevard office during the summer of 2010. He dealt with Balour Pandher. He stated that he conducted all of his site checks during the summer. In the summer of 2011 he was at Trans West’s Mississauga facility planning a site visit to Shiney Express.

Prior to his visit Mr. Roy conducted an Internet check that showed that Shiney Express had had its CVOR certificate revoked. He called Balour Pandher and arranged to meet him at the Kenview office. When he arrived at the office he noted that it was identical to the Shiney office he had visited the year before. He noted letterhead in the name of both Shiney Express and Ishar Roadlines. A board on the wall displayed the same truck units and drivers as in his previous visit. Mr. Roy had plenty of time to observe as he waited for about an hour and Mr. Pandher did not show.

On leaving, Mr. Roy contacted his office in Montreal to determine if Ishar Roadlines was on Trans West’s roster of approved carriers. He found out that it was. He asked for the files on Shiney Express and Ishar Roadlines to be pulled. On review he was of the view that the matter should be reported to the authorities because he felt Trans West was in danger of contracting with a suspended or cancelled carrier – something it certifies each year to the Government of Quebec that it does not do. The Trans West file was in the possession of Officer Lavallee when he visited the Applicant’s premises for his audit. He noted that none of the Trans West invoices was disclosed by the Applicant when he asked for invoices (Ex. 3 Tabs 10 to 13).

Mr. Roy stated that the only contact person for Trans West was Balour Pandher, regardless of whether the carrier was Shiney Express or the Applicant, Ishar Roadlines. This evidence is well supported by the documents. Ex. 3 Tab 11 consists of email correspondence for the period from July 8, 2011 to September 14, 2011, a period well after the cancellation of the Shiney Express and CD Transport CVOR certificates. The correspondence is between Trans West and Balour Pandher (using his Anglicized name Bob Pandher) at Shiney Express. Tab 12 contains documents for a slightly longer period under the Shiney Express banner. In each case, where load confirmation sheets are signed, it is with the printed name “Bob.” Tab 13 contains the documents relating to Ishar Roadlines. Again, the only name indicated on these documents is Bob Pandher or Bob. Cheques were sent by FedEx to Bob Pandher either at Ishar Roadlines or Shiney Express.

Cynthia Ceccolini has spent the last two years as the Carrier Relations Manager for FLS Transportation, a load broker based in Montreal. FLS does not have a truck fleet of its own. What it does is post loads on certain Internet sites and carriers may respond by requesting information. If a carrier has not previously been approved by FLS, the dispatcher will email or fax an information package. When the carrier completes and returns the information package, Ms Ceccolini reviews it to verify the carrier’s operating authority and insurance and to ensure that the carrier meets FLS’s other requirements before deciding to approve the carrier.

Ishar Roadlines applied to FLS for approval on June 28, 2011 (Ex. 3 Tab 13). The information provided gave the same telephone, facsimile and cell phone numbers as those used by Shiney Express. The contract was signed by Rupinder Singh Brar in his capacity as “Dispatch,” not unusual according to Ms Ceccolini. What Ms Ceccolini did point out was a “Quick Pay Application.” The normal payment terms for FLS are within thirty days of receipt of invoice. FLS will pay more quickly but discount the payment on receipt of a completed Quick Pay Application. The Applicant submitted a Quick Pay Application (Tab 13 page 189) showing Balour Singh Pandher as its president and giving Mr. Pandher’s address as the corporate address. Ms Ceccolini stated that, since the Applicant was not actually seeking quick payment, the application was ignored. According to Ms Ceccolini, the only person the FLS dispatcher spoke to was “Bob.”

At the Show Cause meeting for Ishar Roadlines held on December 22, 2011, Gobind Hehar identified five customers. Mr. Kirchner contacted one of the customers. Traffic Tech Inc., a load broker like FLS. Traffic Tech forwarded documents relating to its dealings with both Shiney Express and the Applicant (Ex. 4, Tab 25). Two of the documents forwarded by Traffic Tech attracted Mr. Kirchner’s particular attention. The first was a Carrier Contract Agreement signed on behalf of Ishar Roadlines Inc. on July 7, 2011 by Bob Pandher, President (page 309). The second was a Carrier Contract Agreement signed on September 20, 2010 on behalf of CD Transport Corp o/a Shiney Express by Balour Pandher, President (page 315). The Carrier Survey form accompanying the first Agreement indicates that it was completed by “Bob Pandher, President” and the second earlier Agreement by “Bob President.”

Karamjit Hehar testified that she is the sole director, officer and shareholder of the Applicant. Balour Pandher is her brother. She testified that she incorporated the Applicant in 2007 with the intention that she and a friend would invest in a trucking operation. The friend decided not to invest so she left the company dormant until 2010. During that time she had a full time job working as an order filler for a pharmaceutical company. In June 2010 she was no longer able to perform her duties in her full time position due to medical problems so, shortly thereafter, she decided to activate her trucking company. She is currently on an unpaid medical leave of absence from her order filler job.

She denied that Balour Pandher had any involvement with the Applicant at any time. She and her son, Gobind Hehar, have always run the corporation separately from CD Transport and Shiney Express. It follows from this denial that she also denies that she made statements to the effect that she was running Ishar Roadlines together with her brother to Officer Lavallee.

According to Ms Hehar’s evidence, she commenced operating the Applicant with no previous experience and solely with the assistance of her son, then a high school student of no previous experience. They had the help of an office assistant/bookkeeper. Her husband, Talochan Hehar, drives for her and is responsible from overseeing the maintenance functions and testing new drivers.

She moved into the offices of Shiney Express and used its computer software to send emails and generate invoices and other documents. Balour Pandher was present from time to time, but his role was limited to collecting outstanding accounts receivable owing to Shiney Express and CD Transport. Once these invoices were all collected, Balour Pandher no longer came to the office. She believes he is now in British Columbia operating a trucking company. She is no longer close to him because of the trouble he has caused her in this matter.

Ms Hehar testified that she sent the emails found at Ex. 3 Tabs 11 to 13 to Trans West seeking payment of outstanding accounts. Because she was using Shiney Express’s computers the emails only appear to come from Balour Pandher. In fact, they came from her. She made no attempt to clarify the sender. She went on to state that all the money sent by Trans West to Bob Pandher actually went to the bank accounts of the Applicant and that Balour Pandher did not receive any profits from the company.

It would not be unfair to say that Mrs. Hehar did not fare well in cross-examination. The cross-examination marked the lack of depth of her knowledge of the Applicant’s corporate structure and financial dealings. For instance, she was unaware that her husband, Talochan Hehar, was a director of the Applicant (Ex. 3 Tab 7 page 83). She was not sure when the Applicant received its CVOR certificate. She professed to be unaware that the CVOR certificates of Shiney Express and CD Transport had been cancelled almost contemporaneously with the expansion of her business from one truck to four trucks and seven drivers. She denied that she bought trucks from Balour Pandher, stating that they were purchased from Freightliner and Volvo. She had no explanation for Mr. Kirchner’s evidence that all of her tractor units and all of her drivers had previously been involved in Balour Pandher’s companies.

She became most confused when attempting to defend her assertion that she had sent the emails in Tab 11 to Trans West. It was pointed out to her that several of the emails she says she authored related to load confirmations issued to Shiney Express and invoices issued by Shiney Express. The substance of the emails is to follow up on non-payment. Mrs. Hehar had no explanation for why she was chasing up non-payment of Shiney Express loads. To complicate matters, she noted that one of the truck being used, Unit 203, was not an Ishar unit although how this assists in explaining why she was chasing payment for this load eludes the Tribunal.

Equally she had no explanation for the letter found at Tab 28 of Exhibit 4. The letter is from a law office, is dated October 2, 2011, and is addressed to Balour Singh Pandher. It alleges that Balour Pandher had made misrepresentations to Trans West Logistics “in the month of October 2011” to obtain payment of an invoice to Shiney Express. Mr. Roy testified that the last Trans West cheque to either Shiney Express or the Applicant was in August 2011. Mrs. Hehar had no knowledge of which cheque the letter referred to, how much money was paid or why her lawyer made no efforts to seek repayment. No efforts were ever made to recoup payments allegedly made improperly to Shiney Express or Balour Pandher. When pressed on all of these issues she said she was bedridden at that time and did not know the details.

Gobind Hehar followed his mother onto the witness stand. He echoed his mother’s evidence regarding the audit interview with Officer Lavallee and denied that either of them admitted to any involvement of Balour Pandher in Ishar Roadlines. He stated that his uncle, Balour Pandher, had never been involved in the running of Ishar Roadlines. He affirmed that he and his mother used Shiney Express computers until the audit. After the audit, he purchased new computers dedicated to Ishar Roadlines and now uses Ishar Roadlines own email address. His uncle, Balour Pandher has sold his house in the Greater Toronto area and moved to Vancouver.

Mr. Hehar graduated high school in June 2011. Prior to that, from January 2011, he worked as a dispatcher part-time. Since his graduation he has been Operations Manager. He is assisted in his running of the company by his mother, a full time bookkeeper and his father. The bookkeeper orders CVOR abstracts periodically and Mr. Hehar uses them to track driver performance. He is developing a driver discipline policy and a maintenance statement. He is aware that drivers have a high incidence of speeding tickets. So far his manner of dealing with this issue is to speak to the drivers but the discipline policy, which will be signed and acknowledged by each driver, will set formal responses.

Maintenance is supervised by his father and, until recently, needed service was carried out by a company called Simran Truck Trailer & Car Repairs. Recently the company has gotten its own service bay and service is now contracted out to Harjeet Singh who operates a mobile service vehicle. The company is in the process of developing a maintenance statement. Mr. Hehar acknowledged that the law required him to have a maintenance statement and that currently the company is without one. He stated that, despite his best efforts and promises made by various persons to draft one, he has been let down. Mr. Meakings is now drafting a discipline policy and maintenance statement and Mr. Hehar hopes to have them in place in the near future.

THE LAW

Section 17 of the Act covers the issuance and renewal of or the refusal to issue or renew CVOR certificates.

CVOR certificates issued, renewed by Registrar

17. (1) The Registrar shall issue a CVOR certificate to and renew a CVOR certificate of every person who applies for the certificate or renewal in the form approved by the Minister and meets the requirements of this Act and the regulations.

Terms and conditions

(1.1) The Registrar may issue a CVOR certificate subject to any terms and conditions that the Registrar considers appropriate.

Refusal to issue

(2) The Registrar may refuse to issue a CVOR certificate to an applicant if the Registrar has reason to believe, having regard to the applicant’s safety record and any other information that the Registrar considers relevant, 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.

Same

(3) The Registrar may refuse to issue a CVOR certificate to an applicant if the applicant is related to,

(a) a person whose CVOR certificate has been cancelled, is or has been under suspension or is or has been subject to a fleet limitation;

(b) a person whose CVOR certificate suspension, cancellation or fleet limitation is under appeal; or

(c) a person who the Registrar has reason to believe, having regard to the person’s safety record and any other information that the Registrar considers relevant, will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety.

Interpretation

(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.

The statutory authority for the actions of the Registrar and the jurisdiction of the Tribunal are set out in sections 47, 47.1 and 50 of the Highway Traffic Act (the Act), as follows:

Suspension and cancellation of licence, etc., general

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) 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;

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.

50. (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.

ANALYSIS

In making findings of fact, the Tribunal has required the Registrar to carry the onus of proof on a balance of probabilities. It has approached the case unfettered by the Registrar’s findings and, in each case; its findings are based solely on the evidence presented at the hearing independent of the position taken by the Registrar in issuing the Notice of Cancellation and Seizure.

In closing submissions, counsel for the Applicant pointed out that the focus of 47 (1) (f) is prospective. For a revocation of the Applicant’s CVOR certificate, the Tribunal must find that “there is reason to believe that the [Applicant] will not operate a commercial vehicle safely…” The Tribunal accepts this view of the legislative scheme but the legislative language is clear that in determining if there is reason for such belief it is the safety record of the Applicant, or a person related to the Applicant, that this Tribunal must consider. It was candidly admitted by Mr. Kirchner on behalf of the Registrar that the Applicant’s current safety record would not, in and of itself, support a revocation of the CVOR certificate. The whole focus of the Registrar’s case is that Balour Pandher is a person who has demonstrated over the years a complete inability to operate a trucking company safely and that he is a related person to the Applicant in that he “directly or indirectly controls or controlled or manages or managed” the Applicant.

The evidence with respect to the involvement of Balour Pandher requires the Tribunal to make a determination regarding the credibility of Karamjit Hehar and Gobind Hehar, who both adamantly denied that he was involved in the Applicant in any manner. These denials come in the face of a number of undisputed facts:

1. Neither Mrs. Hehar nor Mr. Hehar had any previous experience in running a trucking operation, the former before November 2010 and the latter before late January or early February 2011.

2. The Applicant started operating one truck in November 2010 when CD Transport and Shiney Express were subject to actions on the part of the Registrar to revoke their CVOR certificates.

3. The Applicant expanded its operation in February 2011 just after the CD Transport and Shiney Express CVOR certificates were revoked by order of this Tribunal.

4. Throughout the period of operation of the Applicant, Mrs. Hehar has been on medical leave of absence from her full-time employment and has advised the Tribunal that at certain material times she was bedridden and unaware of why actions were taken, apparently by her brother, Balour Pandher.

5. During the period when the Applicant’s operations were being ramped up to four trucks and seven drivers, Mr. Hehar worked only part-time after school.

6. The Applicant shared premises, fax, telephone and cell phone numbers with CD Transport and Shiney Express.

7. Balour Prandher dealt with customers and signed legally binding documents on behalf of the Applicant during the summer and early fall of 2011.

8. All of the Applicant’s tractor units had been registered to Balour Pandher companies and all of the Applicant’s drivers had previously driven for Balour Pandher companies.

9. At least one driver filled out his logbook using the Applicant’s logbook but billed and received an accounting from Shiney Express.

What is disputed by the Applicant is the admission of the involvement of Balour Pandher in the Applicant’s operation recorded by Officer Lavallee in the notes of his audit. The source of the emails to Trans West seeking payment of certain invoices is also disputed. Given the totality of the evidence, the Tribunal resolves the credibility issues in favour of the Registrar. It accepts the evidence of Officer Lavallee over that of Mrs. Hehar and Mr. Hehar.

Taking the second disputed area first; the evidence of both Ms. Ceccolini and Mr. Roy was that the only person their companies dealt with concerning the Applicant was Balour Pandher. All emails are sent in the name of Bob Pandher at Shiney Express. Mrs. Pandher’s claim that she sent the emails using Shiney Express software did not survive cross-examination and her last refuge was to advise the Tribunal that she was sick and bedridden during some of the period and confused. The Tribunal does not accept that Mrs. Hehar is the author of the emails to Trans West concerning payment of invoices for services rendered following the cancellation of the Shiney Express and CD Transport CVOR certificates. It follows from this finding that Balour Pandher’s presence in the Applicant’s offices was not for the purpose of collecting receivables owing to Shiney Express since the receivables in question relate to services rendered after the CVOR cancellation date, services that could only have been provided under the aegis of Ishar Roadlines Inc.

In the notes of the audit, Officer Lavallee recorded the course of the interview chronologically. He sets out that he gave Mrs. Hehar the standard caution about the use that may be made of any findings. He asked her if either Balour Pandher or Bawa Pandher, Mrs. Hehar’s father, were involved in the operation of the Applicant. He received a denial. When he then pushed for disclosure of documents, Mrs. Hehar admitted her brother’s involvement. In and of itself this chronology has the ring of truth to it. The credibility is strengthened by the fact that the disclosed documents indicated an intimate involvement of Balour Pandher in the Applicant’s operations up to September 2011. Finally, it strains credibility to believe that two complete neophyte trucking executives ramped up their operations contemporaneously with the demise of Shiney Express and CD Transport, from the same premises, accessing broadly the same customer base without the serious involvement of Balour Pandher who operated from the same office. Indeed, Officer Lavallee noted that as late as September 2011, neither Mrs. Hehar nor Mr. Hehar appeared to have any familiarity with the documentation he was seeking, a finding that was not denied in the evidence before the Tribunal. At the conclusion of Officer Lavallee’s audit noted he states:

Evidence clearly indicates that Shiney Express is operating as Ishar Roadlines.

Evidence clearly indicates that Balour (Bob) Pandher is operating Ishar Roadlines

The Tribunal agrees with Officer Lavallee that, as of September 28, 2011, Balour Pandher and Shiney Express controlled or managed the Applicant, Ishar Roadlines and were, therefore, related to the Applicant. By virtue of s. 47 (1) (f), the Tribunal may now consider the safety record of Shiney Express with a VR of 202.4% and CD Transport, which under Mr. Prandher’s control went from a VR of approximately 18% to a VR of 115.7% prior to the cancellation of its CVOR certificate when determining if there is reason to believe that the Applicant will not operate safely or in accordance with the Act, the regulations or other laws relating to highway safety.

Mr. Meaking’s position on behalf of the Applicant, that the legislation is prospective, requires the Tribunal to address whether the totality of the combined safety record is sufficient to provide reason for belief that the Applicant will not operate safely and in accordance with the law. The Tribunal must conclude that it is.

As of the date of the hearing the Applicant had been in operation for approximately 21 months. It had its own safety record to put before that Tribunal, one that is insufficient to support revocation without considering the abysmal performance of the Balour Pandher companies. Its safety rating has increased from 18% VR at the time of the December 2011 Show Cause meeting to 43.6% VR in late June, 2012. When considered over the period from the cancellation of the Balour Pandher CVOR certificates in January 2011 to late June 2012 the safety rating is in excess of 60% VR. This pattern closely resembles the pattern displayed by CD Transport under the control of Balour Pandher.

Given that the legislation directs the Tribunal to look at the past safety performance of the Applicant this trend is disturbing. Against this trend may be set a recent improvement. In the five months prior to the hearing the Applicant’s VR was approximately 23%. Counsel for the Applicant urges the Tribunal to take this as an indication that the Applicant’s operation is improving. It is in the nature of a safety rating that, broken into small periods, it may show improving or worsening trends. One accident or failed inspection may dramatically alter the short term pro-rated safety rating. It is for this reason that the record is examined over a two year period. It must also be noted that the two year period ending in late June 2012 also includes four months when the Applicant was not operating in 2010 and a 43.6% VR is therefore somewhat flattering to the Applicant.

The Tribunal can take no comfort from the fact that Balour Pandher has now moved to Vancouver to run GTB Trucking. Mr. Pandher has been found to have deliberately concealed his involvement with CD Transport. Given Mr. Pandher`s history as an operator, it may only be a matter of time before he loses his authority to operate in British Columbia. The Applicant’s witnesses have been less than open with the Tribunal about his past involvement. The Applicant has even ventured into the cynical by asking a solicitor to draft a letter to Balour Pandher in an attempt to show he was not involved with Ishar Roadlines. Nothing in this letter rings true or addresses any possible fact situation. By its existence, the Tribunal must conclude that Balour Pandher is simply attempting to conceal his continued involvement in the operations of the Applicant.

ORDER

Pursuant to the authority set out in s. 50 (2) of the Act, the Tribunal orders the Registrar to cancel CVOR certificate # 158-987-152 issued to Ishar Roadlines and to seize the plate portion of any permits, or if issued by a jurisdiction other than Ontario, to seize the permits and number plates.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair

Released on: August 30, 2012