Licence Appeal Tribunal
FILE: 7368/7389/CVOR
CASE NAME: 7368/7389 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 Suspend the Commercial Vehicle Operators’ Registration Certificates and to Seize the Plate Portion of all Permits Issued.
1105729 Ontario Inc. Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Elizabeth Sproule, Vice-Chair
APPEARANCES:
For the Applicant: Mark Reynolds, Agent
For the Respondent: Douglas Lee, Counsel
Heard in Toronto: September 19 and 20, 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 April 23, 2012 (the “Order”) pursuant to section 47(1) to suspend a Commercial Vehicle Operators Registration (“CVOR”) certificate and to seize the plate portion of any permits issued.
PRELIMINARY MATTERS
The Registrar’s order issued April 23, 2012, (the ‘Order) purports to suspend the CVOR certificate, and seize of the plate portion of any permits of all commercial motor vehicles and trailers registered in the names of the Applicant, a related individual and two other corporations for which the related individual is a principal. At the pre-hearing of this matter, the Applicant and the other parties named in the Proposal were represented by the same Agent. At the commencement of this proceeding Mr. Reynolds clarified that he was appearing as Agent of the Applicant only. Although no Notice of Appeal was received, other than that of the Applicant’s, there was some confusion as to whether there had been an intention of the related individual and his companies to appeal the Order. The matter was recessed until the related individual was contacted and written confirmation was received that he would not be appealing the Order in relation to himself or his companies.
The Registrar also issued a proposal to refuse the registration of a related individual which was appealed. A request had been made to the Tribunal for the matters to be heard at the same time. However, that appeal was withdrawn in writing at the start of these proceedings.
BACKGROUND
The Registrar first issued a notice of Cancellation and Seizure on March 23, 2012, on the basis of a review of the Applicant’s safety record and unpaid fines in the amount of $3,516.00. The representatives of the Applicant met with the Registrar on April 11, 2012, to show cause (the “Show Cause Meeting”) why the Cancellation and Seizure Order should not be issued. After this meeting, the Order of Suspension and Seizure, for 21 days, was issued instead.
The grounds for the suspension are, in summary, that the Registrar is not satisfied that the Applicant will operate its commercial vehicles safely given its past safety record and the lack of effort of the Applicant, through its principal(s) to make improvements.
It is the Applicant’s position that the safety record being relied upon is inaccurate as it includes events involving exempt vehicles. The Applicant asserts that it is a towing business and the vehicles it had been operating were primarily tow trucks, not commercial vehicles, and do not require a CVOR certificate and collisions, inspections and charges pertaining to those vehicles should not form part of the safety record of the Applicant.
THE EVIDENCE
The Registrar
The evidence of the Registrar consisted of documentation and the testimony of Daniel Ramer, a Carrier Safety Rating Administrator with the Ministry of Transportation. The following is a summary of the relevant evidence.
The Commercial Vehicle Operator’s Registration (CVOR) system applies to trucks that have a gross weight or registered gross weight over 4,500 kg and buses that have a seating capacity of 10 or more passengers. A Commercial Vehicle Operator Record, (also referred to as a CVOR), is maintained for each registrant, and this record includes the results of inspections, collisions and driver convictions. This record is used to calculate a carrier’s overall ‘Safety Violation Rate’. Mr. Ramer reviewed for the Tribunal how a Safety Violation Rate is calculated and how the increase in a violation will automatically bring a carrier to the attention of the Ministry of Transportation (MTO). Other triggers include wheel separations or impoundments. If sanctions are being considered, the principals of the carriers are contacted as they are the individuals responsible for ensuring compliance. Mr. Ramer testified that 80 % of carriers improve after an intervention.
On January 23, 2012, the Applicant submitted a CVOR Application for the purpose of renewing its CVOR Certificate. The application form was signed by Mr. Paul Falcao, a principal of the Applicant. The form indicated that the Applicant was a ‘For Hire’ carrier. The definition of ‘For Hire’ is set out in section 22 of the form and includes “transporting goods and/or passengers for direct or indirect compensation. On page 4 of the same application, the Applicant indicated the number of trucks being operated was 80 and the total kilometers traveled in Ontario (trucks only) was indicated as 1,000,000. The total kilometers travelled in the rest of Canada were indicated as being zero.
Mr. Ramer prepared a ‘Safety Record Review’ in March of 2012, which set out the following information.1 The original CVOR certificate was issued to the Applicant on September 14, 1995. On January 15, 2001, the Applicant was issued a satisfactory unaudited safety rating. On October 1, 2011, a Warning Letter was issued to the Applicant. On November 13, 2007, a Conditional Safety Rating was assigned. A facility audit was conducted in June of 2008, which the Applicant failed. An interview was conducted on December 16, 2010. Analyzing the period of February 1, 2010 to January 31, 2012, the Safety Violation Rate was calculated to be 138.84%.
Mr. Ramer testified that an excellent Safety Violation Rate would be zero and that anything over 100% of threshold is of real concern. The March 2012 Safety Record Review also included a calculation of the Safety Violation Rate for the Applicant for a two year period following the December 16, 2010 interview: that rate was 129.22%.
A ‘Show Cause Meeting’ was held April 11, 2012. Mr. Paul Falcao was in attendance as was the Applicant’s safety consultant. At the time of this meeting, the overall Safety Violation Rate for the Applicant was 148.3%. The issues of concerns raised by the Registrar included hours of service, load security, vehicles out of service, an impounded commercial vehicle, speeding convictions and drivers lacking the proper class of licence.
Mr. Ramer attended the Show Cause Meeting and testified that at that meeting Mr. Falcao acknowledged that he did not review the Applicant’s CVOR abstract and, that he was unaware that one of his driver’s currently on the road did not have a valid licence. He also indicated at that time that he believed it was the responsibility of the Applicant’s drivers to ensure they have the appropriate class of licence to do their job. It was also acknowledged by Mr. Falcao at the Show Cause Meeting that there were some difficulties getting the drivers to pay attention to the training they were given and that they didn’t report incidents. It was acknowledged that the Applicant should have a disciplinary policy. Mr. Falcao also indicated at that meeting that the Applicant has a Motor Vehicle Inspection Station (MVIS) and that the Applicant’s vehicles travel as far away as Alberta. The particulars above, which Mr. Ramer testified to, were included in the notes taken at the time of the meeting.2
The safety consultant that was in attendance at the Show Cause Meeting with the Applicant had been involved with the Applicant for about two weeks at that time and had not signed a contract with the Applicant. The consultant, however, undertook to put together an action plan which was submitted to the Registrar for consideration. Mr. Ramer testified that the Registrar’s position was that the plan was not “strong enough”.
Mr. Ramer reviewed the CVOR abstract for the Tribunal pointing out the numerous instances where the vehicles inspected were transporting intermodal containers and other goods, not disabled vehicles, suggesting that they were not being used as tow trucks. Page three of the Order listed the plates to be submitted during the suspension. Mr. Ramer indicated which ones had since been identified or confirmed as tow trucks – about five of the sixteen were listed as belonging to the Applicant. Mr. Ramer also indicated that it was his understanding that the four commercial vehicles listed under 1820108 Ontario Inc. had been transferred to that company from the Applicant before the Show Cause Meeting. Mr. Ramer pointed out that it is the responsibility of a registrant to ensure that the CVOR record does not contain errors. The Public Guidelines for the CVOR system state on page ten that if there is incorrect information on a carrier’s CVOR, “the carrier is responsible for contacting the carrier Sanction Investigation Office and a CVOR analyst will investigate the complaint and make corrections to the record, if necessary”.3 A copy of a CVOR can be obtained by a registrant for five dollars on the internet or by attending a government service office.
In cross-examination Mr. Ramer confirmed that drivers of tow trucks do not have to do pre-trip inspections. Mr. Ramer reiterated that it is the responsibility of the operator to notify MTO which vehicle is a tow truck and if MTO is not aware of an error, the record is not inaccurate and that it is not his role to alter the record. Commercial vehicles are added to a CVOR by the corporate officers.
Lastly, Mr. Ramer agreed that on page nine of the CVOR record there is reference to a collision on November 19, 2011, for which two points were assigned but there is no indication that there had been a conviction, although the driver had been charged.
The Applicant
The evidence of the Applicant consisted of some documentation and the testimony of Paul Falcao, the president of the Applicant. The following is a summary of the relevant evidence.
Mr. Falcao testified that all the trucks indicated in the Order are tow trucks, although they all have been registered under the CVOR system and a copy of a CVOR certificate has been placed in each vehicle as he had been told it was up to the discretion of the MTO officers as to whether the truck would be treated as a tow truck or not. The safety consultant hired by the Applicant had pointed out to the Registrar during the Show Cause Meeting that he, the consultant, had asked for clarification from the MTO as to what constitutes a tow truck two years earlier but had not received such clarification (this request was made in relation to a previous client not the Applicant). According to the record of the Show Cause Meeting, the Registrar indicated that “that had nothing to do with what was being currently discussed”.
Mr. Falcao did not recall the first interview with the Registrar which took place on December 16, 2010.
Mr. Falcao testified as to specific inaccuracies contained in the CVOR record for the Applicant. Specifically, the vehicle with the licence plate 6717XR noted on page 4 of the CVOR record, and described as a ‘straight truck’ was a tow truck, although he was unable to identify which kind. This notation on the CVOR related to an inspection which found 3 defects, including the driver not having the proper licence. The three inspections involving trucks licensed as 3470AS (described under vehicle type as ‘other’), 6717XR and 1236YJ (described under vehicle type as ‘straight truck’) were all tow trucks, as was truck 2548WD. Mr. Falcao also pointed out that the conviction on November 28, 2011, involving a truck with a licence 8535YZ was a truck that has been converted to a tow truck. It was Mr. Falcao’s evidence that the auditor suggested that his vehicles were commercial vehicles.
In cross examination, when questioned about the interview on December 16, 2010, Mr. Falcao stated that he remembered being there, but not with four people in the room. He did not remember details of an accident in 2009. He possibly remembers the audit being done in 2008. He acknowledged that transporting goods was part of his business. In reviewing a Commercial Vehicle Inspection report of July 27, 2010, Mr. Falcao indicated in his testimony that he did not know what ‘OOS” meant, it was pointed out to him that it was the abbreviation for ‘out of service’,
Mr. Falcao testified that he started monitoring the Applicant’s CVOR record after the Show Cause Meeting in April of 2012. He could not confirm, however, what the Applicant’s current violation rate was. When asked if he complained in instances where vehicles that were tow trucks were being inspected and charges laid, he stated he called once. He did not know about the existence of charges, possibly because drivers did not pass on the information. He clarified that he was not told directly that officers used discretion when determining the type of vehicle being inspected.
Mr. Falcao agreed that a key feature of a tow truck was a ‘wheel lift’. He was asked if a wheel lift bar was attached to a dump truck or bus whether it would make them a tow truck and he answered that it would. He also confirmed that he did not update the Ministry regarding the MVIS station and that there were events on the CVOR record involving vehicles in Manitoba and British Columbia. Finally, Mr. Falcao stated that the Applicant has not operated any commercial vehicles for approximately 7 months and it currently has 40 or 50 tow trucks.
THE LAW
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
- (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)..
- (1) In this section and in sections 17 to 23.1,
“commercial motor vehicle” does not include,
(a) a commercial motor vehicle, other than a bus, having a gross weight or registered gross weight of not more than 4,500 kilograms, an ambulance, a fire apparatus, a hearse, a casket wagon, a mobile crane, a motor home or a vehicle commonly known as a tow truck,
(2) No person shall drive or operate a commercial motor vehicle on a highway unless the
operator is the holder of a valid CVOR certificate. R.S.O. 1990, c. H.8, s. 16 (2); 2002, c. 18,
Sched. P, s. 3 (4).
ANALYSIS
The issue for the Tribunal to determine is whether there is reason to believe that the Applicant will not operate a commercial motor vehicle safely or in accordance with the Act having regard to its safety record or any other relevant circumstance.
It is argued by the Applicant that the CVOR record which has been relied upon by the Registrar is inaccurate as many of the inspections, convictions and collisions noted on the record involved tow trucks and these are exempt vehicles under section 16 of the Act. In making this argument the Applicant relies upon the Ontario Court of Justice decision in R. v. Martel Enterprises Inc. 4 In that case the Court found that: s.16 of the Act excludes vehicles commonly known as tow trucks, that a “tilt and load truck” is commonly known to be a tow truck and that this fact does not change when it is carrying a load and someone is paying for that service as s. 16 does not set out any such limitations.
It was argued by Counsel for the Registrar that carriers should not be able to use the exemption of tow trucks under s.16 to circumvent the CVOR system. The Tribunal could not agree more, however, any limitations put on this tow truck exemption should be determined by the law makers and not this Tribunal.
Mr. Falcao has testified that all the vehicles the Applicant now operates are tow trucks. He specifically identified some of the vehicles, which were the subject of past inspections and appeared on the CVOR record, as tow trucks although they were identified as ‘straight trucks’ on the inspection forms. If Mr. Falcao’s evidence is to be believed the Applicant is not, in fact, a commercial vehicle operator at the present time. However, it is clear that the Applicant has been operating commercial vehicles within the two years that has been scrutinized. Mr. Falcao was, apparently, operating under the assumption that all the Applicant’s vehicles required a CVOR required and had the Applicant register all its vehicles, whether tow trucks or otherwise. This made it impossible to accurately monitor the operation of the Applicant’s commercial vehicles.
The reliance on the tow truck exemption is a relatively recent approach for the Applicant. Mr. Falcao participated in an interview with the Registrar in December 2010, where concerns regarding the Applicant’s violation rate were addressed. There is no evidence that any issue was taken at that time with respect to the CVOR record as being inaccurate. According to the record of the interview, signed by Mr. Falcao, 20 commercial vehicles were plated as ‘non-wreckers’ and another 60 were tow trucks. Clearly the Applicant was operating commercial vehicles at that time. The outcome of that interview was that the Applicant was to submit an action plan in order to improve the safety of its operation.
The Applicant has provided no evidence that it challenged the accuracy of its CVOR record until after the Show Cause Meeting in April of 2012, and there is no evidence to suggest that it was ever challenged in the manner proscribed by the Public Guides. The issue appears to have been raised in a somewhat indirect manner by the consultant engaged by the Applicant in that he pointed out to the Registrar at the Show Cause Meeting that he had requested verification of the definition of tow truck some two years earlier. It is not disputed that this inquiry was not in relation to the Applicant’s operations.
The Tribunal accepts that the inclusion of exempt vehicles has impacted the accuracy of the Applicant’s CVOR record and hence the calculation of its Safety Violation Rate. But how inaccurate it is was not made clear. Although Mr. Falcao testified that certain trucks were tow trucks it appeared to the Tribunal that his definition of tow truck may exceed what would ‘commonly be known as‘ a tow truck. In cross-examination, Mr. Falcao testified that a bus or even a dump truck which had a wheel lift attached at the back would be a tow truck. In redirect, he confirmed that the Applicant does not have any buses or dump trucks. However, the Tribunal concludes that the definition Mr. Falcao was working to identify which of the Applicant’s vehicles were tow trucks may be beyond what was intended by the Act and the decision in Martel. What is ‘commonly known as a tow truck” does not include, in the Tribunal’s opinion, anything that can be made to have towing capacity.
Mr. Falcao has played a role in obscuring the nature of the Applicant’s commercial vehicle operation. Although it may not be fair to fault Mr. Falcao for initially registering a vehicle under the CVOR system in error if it was in fact a tow truck he can be faulted by not ever taking the appropriate action to clarify the record. One of the reasons he has not appreciated what he now clams as errors was that he was not monitoring the Applicant’s CVOR record until after the April 2012 Show Cause meeting. In addition to not monitoring the Applicant’s record, Mr. Falcao has also provided other incorrect information. When Mr. Falcao completed a renewal application on behalf of the Applicant in January 2012, he indicated, among other things, that the Applicant was operating 80 trucks, travelling 1,000,000 miles in Ontario. He omitted that the Applicant’s vehicles did travel out of province and that the Applicant had a Motor Vehicle Inspection Station, although this information was specifically requested.
Mr. Falcao has not been careful in providing accurate information to the MTO to ensure its records are accurate yet now argues the Applicant should not be sanctioned because the records are not accurate is in the Tribunal’s view problematic. The fact that the CVOR record contains inaccuracies cannot be ignored and should be considered, however what also must be considered is that the Applicant has been operating commercial vehicles, in addition to tow trucks, for many years and yet there appears to have been little monitoring of how those commercial vehicles have been operated and little diligence exercised to ensure compliance. The evidence before the Tribunal suggests that the Applicant has not been addressing concerns that have been raised as to the safety of its operations and this lack of attention was reinforced by Mr. Falcao’s testimony and past conduct. His memory of events was not clear, he was not familiar with a basic inspection term, and statements made in interactions with the Registrar suggested he did not have a full understanding of the responsibilities of the Applicant under the Act. These are factors which cause real concern.
The Tribunal is satisfied that given all the circumstances that have been brought to light that the Applicant will not operate a commercial motor vehicle safely or in accordance with the Act and a sanction in the form of a suspension of its CVOR certificate and Seizure of the plate portion of its commercial vehicles for a period of seven days would be appropriate. The reduction in the suspension time is in recognition of the issue of the CVOR record accuracy to which, as noted above, the Tribunal finds the Applicant has contributed.
If the evidence of the Applicant is correct and it is no longer operating any commercial vehicles, the impact of this decision is questionable. However, as stated, the Tribunal is not confident that Mr. Falcao’s determination of which of the Applicant’s vehicles are in fact of a type ‘commonly known as a tow truck’ but trust that can be appropriately determined by the Registrar with a more detailed review of the vehicle and/ or its documentation.
ORDER
The Tribunal, by the authority invested in it under Section 50(2) of the Act, directs the Deputy Registrar not carry out the Suspension and Seizure Order dated April 23, 2012, but to issue a Suspension and Seizure Order, of the CVOR Certificate for 110729 Ontario Inc. and the plate portions of permits and number plates for all its commercial motor vehicles and trailers as defined by the Act, for 7 days, to begin on a date 30 days after the date of the release of this Decision.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
Released on: October 31, 2012