Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-11-07
FILE:
7567/CVOR & 7568 /CVOR
CASE NAME:
7567&7568 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
Albert Bruce Burk and Agricultural Equipment Express
Applicants
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
TRIBUNAL:
Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Applicants:
James Lee, Agent
For the Respondent:
Patrick Moore, Counsel
Heard in Toronto:
October 29 and 30, 2012
DECISION AND ORDER
The Applicants, Albert Bruce Burk (“ABB”) and Agricultural Equipment Express (“AEX”) appeal 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") to cancel Commercial Vehicle Operators Registration ("CVOR") Certificate Numbers 138-664-704 and 102-836-698 issued to the Applicants and to seize the plate portion of any permits issued.
BACKGROUND
On January 27, 2012, the Tribunal suspended the CVOR certificate and the plate portion of permits for all commercial vehicles and trailers of AEX for 21 days. The plate portion of its permits and number plates were to be seized for the suspension period. The CVOR of ABB was suspended for 12 months.1
The Applicants applied to the Ontario Divisional Court for a stay of the Tribunal's decision. The application was dismissed on March 13, 2012.2
On March 20, 2012, the Registrar issued a suspension and seizure order to each of the Applicants. The suspension period for AEX was March 19, 2012 to April 9, 2012.3 For ABB it was from March 19, 2012 until March 20, 2013.4
A show cause meeting was held on July 11, 2012 between the Applicants and officials of the Registrar. The purpose of the meeting was to discuss a concern of the Registrar that the Applicants had operated their commercial vehicles and trailers in Canada during the suspension period.5
On July 23, 2012 the Registrar ordered that, as of August 10, 2012, the CVOR certificates and plate portion of permits of the Applicants be cancelled.6 The Applicants, accordingly, appealed the Registrar's decision to this Tribunal.
ISSUE
Did the Applicants operate during the suspension period?
THE EVIDENCE FOR THE REGISTRAR
Diane Hadley
Ms Hadley is a transportation enforcement officer with the Ministry of Transportation of Ontario (the “Ministry”). She responded to a call for assistance on April 3, 2012 from an OPP officer. That officer had stopped a commercial vehicle on Highway 402 in Warwick Township, Lambton County, as smoke was emanating from it.
Ms. Hadley performed her own inspection and obtained information that the operator of the vehicle was ABB. She told the driver, Bing Liu, an employee of AEX, that it was out of service. She went to her Sarnia office and found that the CVOR operator and the trailer plate holder CVOR were suspended. She returned to the inspection location and removed the plates from the tractor and trailer and seized the permit for the tractor.
Derek Wilbee
Mr Wilbee is an officer with the Ministry located in the Waterloo office. He is a "facility auditor" whose job is to audit and investigate CVOR holders. Ms. Hadley had telephoned him about the situation she investigated on April 3, 2012. He called ABB on April 30 and spoke to his wife. She told him that all the records were at Millbank and that Bill Anger of AEX was operating the business. He went to AEX on May 1, 2012. Mr. Anger gave him some fuel receipts, bills of lading and USA inspection reports. When Mr. Wilbee asked for the log sheets, bridge and toll receipts and other documents which were to be kept on the premises, Mr. Anger said that his agent, Mr. Lee, had them.
Mr. Wilbee called Mr. Lee, asked for the documents and offered to drive over and pick them up. Mr. Lee said that that would not be possible. In fact, and despite Mr. Wilbee's demands, these documents were never produced.
Mr. Wilbee was able, through an analysis of the fuel receipts and USA inspections, to determine that, on at least four occasions, commercial vehicles with ABB'S CVOR operated in provinces outside Ontario during the suspension period. Moreover, he found that a commercial vehicle of ABB was investigated at the Blue Water Bridge in Sarnia as it entered the US from Ontario on April 3, 2012.
Daniel Ramer
Mr Ramer is a Carrier Safety Administrator with the Ministry. He testified at length on the safety record of AEX at the Tribunal hearing in December 2011 which led to the decision of January 27, 2012.7
He spoke to Ms. Hadley and received Mr. Wilbee's audit report. He reported to the Deputy Registrar that the Applicants were probably operating while under suspension. He was ordered to do the necessary work which would lead to the cancellation of the CVORs of the Applicants. This led to the show cause meeting of July 11, 2012.8
The safety record of ABB was increasing from 53.09% the longer the business was being carried on by AEX. According to Mr. Ramer, 53% is a poor rating and puts ABB in the lowest 5% of carriers on safety. Mr. Ramer independently confirmed that the Applicants’ drivers were going back and forth to the USA. He contacted the US authorities and found that ABB was on "Alert" in the USA in respect of "unsafe driving" and “fatigued driving". He spoke to an American colleague in Buffalo, New York who said that ABB was "not doing well".
THE EVIDENCE FOR THE APPLICANTS
William Anger
He is the President and CEO of AEX. He said that the driver, Mr. Liu, who was stopped by the OPP on April 3, 2012, was not authorized to have the truck on the road. He said that all the drivers were informed with a note in their pay packets of the suspension period. He said that he chaired a meeting with all the drivers about a week before the suspension was to end saying that the trucks would have "to stay in the yard". He did say, however, that Mr. Liu was allowed to keep his truck at the Walmart in Kitchener and another driver was allowed to keep his commercial vehicle in Chatham. This is at odds with what he told the Ministry officials at the “show cause” meeting in July 2012. At that time he advised that “all trucks were parked in the yard or Manitoba or the United States”.
On cross examination he conceded the following:
ABB owns no trucks.
.ABB does not drive for the AEX fleet and has no say in how the fleet operates. He, Anger, has the "sole say".
If the Tribunal cancels ABB's CVOR and plates it will cost him nothing.
The vehicles operated in the USA and provinces other than Ontario during the suspension period.
- .He did not have with him any documentary evidence that the drivers received notice of the suspension period in their pay packets.
PROVEN FACTS
Based on the foregoing evidence, the Tribunal finds that the following facts were proved on a balance of probabilities:
ABB is a puppet of AEX in the operation of its commercial vehicles.
AEX operated its commercial vehicles in Ontario and other provinces of Canada during the suspension period.
AEX failed to give Mr. Wilbee virtually any of the documents he requested in order to complete his audit.
The safety record of ABB deteriorated the longer AEX operated the commercial vehicle business under his CVOR.
ABB knew of the suspension and seizure yet he continued to allow AEX to use his CVOR and plates.
ANALYSIS
ABB
ABB chose not to attend the hearing notwithstanding that he is an Applicant.
The Tribunal, therefore, only has the testimony of Mr. Anger in this regard. AEX leased its commercial vehicles to ABB who received no financial benefit therefrom. He allowed AEX to use his CVOR without regard to any consequences financial or otherwise.
AEX managed and controlled ABB’s CVOR during the relevant period. The Tribunal finds that ABB and AEX are “related” parties under the Act.9
OPERATIONS DURING THE SUSPENSION PERIOD
Mr. Anger conceded that AEX operated in other provinces of Canada during the suspension period. The Motor Vehicle Transport Act10 prohibits any person from operating extraprovincially without a safety fitness certificate. The CVOR is the Ontario safety fitness certificate. The CVORs of ABB and AEX were suspended when AEX was operating in those provinces. Accordingly, AEX breached the Motor Vehicle Transport Act and the Order of the Tribunal.
The Tribunal accepts the evidence of Ms, Hadley and Mr. Wilbee and finds that AEX operated its commercial vehicles in Ontario on two occasions during the suspension period. Furthermore, the Tribunal draws a negative inference against AEX in respect of its refusal to provide the documents requested by Mr. Wilbee. The Tribunal concludes that it is more likely than not that the disclosure of such documents would confirm more instances of operating in Ontario during the suspension period.
FAILURE TO PROVIDE DOCUMENTS
The Act and Regulations11 provide that a carrier is to keep its daily logs and other records at its place of business .Also, the carrier is required by law to open its books for inspection by an officer of the Ministry. AEX blatantly breached its statutory duty in this regard. The Applicants did not attempt to explain their behaviour in this regard.
SAFETY RECORD
The Tribunal accepts the testimony of Mr. Ramer to the effect that the Applicants rank in the lowest group of carriers in Ontario in respect of safety and that the longer AEX operated under the CVOR of ABB the worse it got.
DECISION
The Applicants offered no evidence to refute the allegations of the Registrar. Indeed, the testimony of Mr. Anger, in some instances, supported the claims of the Registrar.
The Act permits the Registrar to cancel CVORs and plates for misconduct of the owner. In this case the misconduct of the Applicants and Mr. Anger is particularly egregious. Mr. Anger does not seem to understand that Orders of the Tribunal and the Registrar must be respected.
It is obvious that they had no evidence to counteract the position of the Registrar. The Tribunal is aware of the severe economic consequences to AEX and Mr. Anger which would result from the cancellation of its CVOR and permits. Nevertheless, it appears that Mr. Anger is ungovernable as he blithely ignored the Order of this Tribunal and the Registrar and caused AEX to breach statutory duties imposed on it.
ABB is apparently indifferent to whatever order this Tribunal may make.
ORDER
The CVOR Certificate Number 138-664-704 and the plate portion of permits for all commercial vehicles and trailers registered in the name of AEX be and they are hereby CANCELLED. The plate portion of these permits and number plates shall be immediately seized by the Registrar.
The CVOR Certificate Number 102-836-698 registered in the name of ABB be and it is hereby CANCELLED.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released on: November 7, 2012
Footnotes
- Exhibit 1, Tab 1
- Exhibit 2, Tab 2
- Exhibit 1, Tab 3
- Exhibit 4, Tab 4
- Exhibit 1, Tab 16
- Exhibit 1, Tabs 20 and 21
- Exhibit 1, Tab 1
- Exhibit 1, Tab 16
- Highway Traffic Act, R.S.O. 1990, c. H.8
- R.S.C. 1985, c. 29 (3rd Supp.), sections 7 and 8
- Highway Traffic Act, R.S.O. 1990, c. H.8, section 225 and O.Reg. 555/06, section 25