Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-12-17
FILE:
7637/CVOR
CASE NAME:
7637 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
Aurostar Highway Maintenance Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
Mark Reynolds, Paralegal
For the Respondent:
Douglas Lee, Counsel
Heard in Toronto:
December 4, 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 September 10, 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 addition to the Applicant, the Order of Cancellation and Seizure was issued to Roseway Construction Ltd., Man-Co Construction Ltd. and Carmela Mancuso. Only Aurostar Highway Maintenance Inc. (“Aurostar”) is appealing the Order.
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.
EVIDENCE AND FACTS
Registrar’s Evidence
The evidence of the Registrar comprised a book of documents (Exhibit 3) and the testimony of Ministry of Transportation employee Jim Kirchner.
The following is a summary of the relevant evidence:
Jim Kirchner is a Carrier Safety Rating Administrator with the Ministry of Transportation. His responsibilities include monitoring the safety records of CVOR certificate holders, recommending sanction actions to the Deputy Registrar, conducting interviews with certificate holders to address safety records and preparing action plans.
Mr. Kirchner 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 28) 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.
Mr. Kirchner explained how safety ratings are determined in the CVOR system which was developed with input from stakeholders including the Ontario Trucking Association. Information about the carrier itself such as fleet size and kilometers travelled is provided by the carrier with its annual renewals. This information establishes threshold levels against which performance is assessed. Points are assigned for collisions, convictions and inspections and weighted to determine a carrier’s performance. For example, points for collisions are based on the severity of the collision and are only assigned if there is driver impropriety. In development of the system, convictions and collisions were identified as predictors of future performance and are weighted accordingly. In addition, inspection infractions resulting in vehicles being placed out of service are recorded. Every carrier receives one of five safety ratings: Excellent, Satisfactory, Satisfactory – Unaudited, Conditional and Unsatisfactory.
A carrier’s performance 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 which can include suspension, cancellation or fleet limitation. Mr. Kirchner testified that, generally, warning letters are issued at 35%, a request for a facility audit is triggered at 50%, at 70% a carrier’s safety rating is changed to ‘Unsatisfactory’, at 85% an interview is requested and at 100%, cancellation is recommended. Mr. Kirchner stated that only 4% of carriers reach a 35% violation level and a level of 100% is “very rare and very poor”. As at March 31, 2012, only .2% of carriers or 119 of 54,093 had violation rates exceeding 100% (Exhibit 3, Tab 29). Mr. Kirchner further indicated that approximately 80% of carriers improve after intervention by the Ministry.
For a $5.00 fee, a carrier can obtain a copy of its CVOR abstract by contacting the Ministry. If a carrier believes there are errors on the record, the Ministry will check and make corrections as necessary.
Mr. Kirchner testified that the Applicant’s safety record resulted in his preparation of a Safety Record Review (Exhibit 3, Tab 7) in May, 2012. The Applicant’s overall safety violation rate was 125.28% at that time. Mr. Kirchner then prepared the Notice of Cancellation and Seizure dated May 30, 2012 (Exhibit 3, Tab 6) for the review of the Deputy Registrar. The Applicant was then invited to a Show Cause meeting which is its opportunity to provide information to the Ministry as to why the Ministry should not take the proposed action. That meeting took place on July 24, 2012.
The Applicant’s CVOR certificate was issued in December, 2000. In 2010, a ‘Conditional’ safety rating was assigned to the Applicant because of the safety rating of an affiliated company, Roseway Construction Ltd. (“Roseway”). Mr. Kirchner testified that the connection between Aurostar and Roseway was established because Roseway’s corporate officer, Pietro Mancuso, had the same address as Francesco Mancuso, the corporate officer of Aurostar. Mr. Kirchner referred the Tribunal to the corporate record filed as Exhibit 3, Tab 8. He then noted that Francesco Mancuso is Pietro Mancuso’s son.
The chronology of events relating to Roseway is set out in Aurostar’s Safety Record Review and includes a Notice of Suspension and Seizure in December, 2003; a Suspension and Seizure ordered by this Tribunal in April 2005 following Roseway’s unsuccessful appeal; a further Notice of Suspension and Seizure issued in January 2006, which was subsequently rescinded when outstanding fines were paid; the assignment of a ‘Conditional’ safety rating in April, 2007; an interview conducted by Ministry staff in February, 2008; a further Notice of Suspension and Seizure issued in December, 2009; a thirty day Suspension and Seizure ordered and an ‘Unsatisfactory’ safety rating assigned in February, 2010; a “Conditional” safety rating assigned in March, 2010; a ‘Satisfactory – Unaudited’ safety rating assigned in November, 2010; and a ‘Conditional’ safety rating assigned in December, 2011.
Mr. Kirchner testified that he attended Aurostar’s July 24, 2012, Show Cause meeting, the minutes of which are filed as Exhibit 3, Tab 4. The Deputy Registrar and both Francesco and Pietro Mancuso were also in attendance. With respect to Aurostar operations, Mr. Kirchner stated that Francesco Mancuso advised that the Applicant, which hauls aggregate, was only operating one vehicle and not three as the Ministry record indicated, having had one truck stolen and having sold another. Francesco Mancuso stated that his role in the business was to check trucks and ensure that they reached the job site; his father Pietro’s role, given his contacts, was to obtain contracts. He further indicated that the business had been started by his uncle and sold to him in 1999 but did not begin to operate until Roseway went bankrupt two or three years earlier. Mr. Kirchner testified that in fact Aurostar corporate status shows it has been cancelled by Corporations Tax.
The Ministry also raised the issue of unpaid fines at the Show Cause meeting. Mr. Kirchner testified that monetary concerns are important to the Ministry because it believes in a “level playing field” and carriers which do not pay their fines enjoy an economic benefit. Failure to pay fines could also be an indication of financial trouble. At the time of the Show Cause meeting, Aurostar’s unpaid fines totalled $4,300.00. Francesco Mancuso advised that the company was intending to re-open some cases and to enter into payment plans for other outstanding fines. No copy of the payment plan was provided. Mr. Kirchner referred the Tribunal to Exhibit 3, Tab 3, which sets out the unpaid fines as of September 24, 2012 and noted there is a $20 per month payment plan in place.
With respect to the discussion of Aurostar’s safety record at the Show Cause meeting, Mr. Kirchner testified that the Applicant indicated that its current driver, J. M., was a good driver who only got the odd ticket. The Ministry, however, noted that the record showed J.M. had two convictions, one for a seatbelt infraction and one for operating a vehicle in the left lane. Mr. Kirchner referred the Tribunal to the Applicant’s CVOR abstract dated April 3, 2012 (Exhibit 3, Tab 9) which sets out J.M.’s convictions. Mr. Kirchner also indicated that Roseway’s CVOR abstract dated March 8, 2012, (Exhibit 3, Tab 26) sets out incidents with respect to J.M. including a July 2009 conviction for failing to ensure performance standards are met related to three out of service items; an October, 2008 conviction related to two out of service items; and a May, 2007 conviction relating to failure to carry proper documentation.
Mr. Kirchner stated that at the Show Cause meeting, with respect to how drivers were hired, Pietro Mancuso stated that he would ask around the industry or use drivers he had used in the past. When asked how Aurostar came to hire driver J.L., Pietro Mancuso indicated he was a “good driver and a good guy”. Mr. Kirchner testified that Roseway’s CVOR abstract also records inspection findings, a conviction and a collision with respect to J.L. Finally, the Ministry asked if driver T.T. was still employed by Aurostar. Pietro Mancuso indicated he had been terminated in October or November of 2011. When asked why he had been hired, Pietro Mancuso stated he was a good man with no problems. The Ministry then provided him with copies of the minutes of Roseway’s Show Cause meeting held on January 19, 2010 (Exhibit 3, Tab 17) which indicate Roseway’s representative Mr. Reynolds advised the Ministry that T.T. was a problem driver who had been terminated. Mr. Kirchner testified that T.T. also appears cited for various violations on Roseway’s March 8, 2012 CVOR abstract.
With respect to the discussion of future operations at Aurostar’s Show Cause meeting, Mr. Kirchner testified that Francesco Mancuso indicated that to ensure drivers were qualified he would check references and follow them to job sites to ensure they were doing their jobs and not fighting or sleeping. With respect to maintenance, Mr. Mancuso indicated that vehicles are looked at all the time because they are parked at a mechanic’s facility. When asked to describe Aurostar’s vehicle maintenance statement, Mr. Mancuso asked what that was. Finally, Mr. Kirchner indicated that no written submissions or action plan were submitted by the carrier at the Show Cause meeting.
Mr. Kirchner also testified to two collisions that occurred when J.L. was driving, one of which resulted in a conviction (Exhibit 3, Tab 11). The report of the June 8, 2011 accident indicates that the vehicle owner is Pietro Mancuso but the CVOR registration number is that of Aurostar. The report of the second accident in August, 2011, also indicates that Pietro Mancuso is the owner.
Mr. Kirchner testified that the affiliation of Aurostar to Roseway is a concern to the Ministry. In this regard, he addressed the Ministry’s Commercial Vehicle Operator Interview Sheet (Exhibit 3, Tab 20) recording the minutes of a February 21, 2008 interview with Roseway attended by Pietro Mancuso and Mr. Reynolds. Mr. Kirchner highlighted that at that time, no regular vehicle maintenance checks were performed, there was no collision reporting system, there was only a verbal discipline program with respect to drivers, and the operator stated he had not been reviewing CVOR or driver abstracts. Mr. Kirchner noted that the company agreed to prepare a simple accident reporting form and provided a safety plan. He then added that when the Ministry asked if CVOR abstracts were regularly reviewed by the operator at Aurostar’s July 24, 2012 Show Cause meeting, Pietro Mancuso stated this had never been an issue in the past.
On cross-examination, Mr. Kirchner confirmed that Aurostar was not brought to his attention until the safety violation rate had exceeded 100%. When asked if this is normal, he stated that when the rate exceeds 85%, it is brought forward by the safety analyst. Aurostar was forwarded for Mr. Kirchner’s review approximately one month before the April, 2012 review set out in Exhibit 3, Tab 9. When asked if an audit of the Applicant had taken place, Mr. Kirchner indicated it had not even though these typically take place when the violation rate reaches 50%.
When asked how quickly safety violation rates change, Mr. Kirchner stated it takes two years before events are dropped from the record. Mr. Reynolds noted that the Applicant was issued a warning letter on October 4, 2011 and asked how the safety violation rate had changed so quickly. Mr. Kirchner stated that the violation rate increased rapidly and that was likely why interviews had not taken place. Mr. Reynolds also asked if a letter had been issued by the Ministry with respect to the unpaid fines. Mr. Kirchner stated he did not know.
Mr. Reynolds referred to the Safety Record Review contained in Exhibit 3, Tab 7 which shows that shows that the CVOR certificate was issued on December 4, 2000 and that a ‘Conditional’ safety rating was assigned on July 12, 2010. Mr. Reynolds asked if this indicated the company had operated satisfactorily for ten years. Mr. Kirchner testified that the operator advised that the CVOR certificate was not used until Roseway ceased operations. He then confirmed that the ‘Conditional’ safety rating was assigned because of Roseway’s record and not Aurostar’s. On re-direct, Mr. Kirchner testified that there was no activity by Aurostar before April, 2010 and that the Ministry links companies together because it is important that companies do not circumvent sanctions by plating vehicles under other entities.
With respect to the unpaid fines, Mr. Reynolds asked Mr. Kirchner to clarify if there was currently a payment plan in place. Mr. Kirchner confirmed that there was a $20 per month payment plan in place and that of the five fines set out in Exhibit 3, Tab 3, two had no payment plan in place and an additional two were outstanding but not in default.
Applicant’s Evidence
The evidence of the Applicant comprised the testimony of Francesco Mancuso.
Francesco Mancuso testified that he is the owner of Aurostar and is responsible for “everything”: finding work, collecting money and making sure drivers get to job sites. He took over the operation in the fall of 2011, stating he heard about all the tickets and fired the drivers. His father Pietro Mancuso is involved “less and less” and now only helps out: he may go and pay diesel bills or he may find jobs because he has more connections. The company is now operating with only one truck and one driver, J.M. The truck is checked in the morning and evening on an “in and out” basis by both the driver and a mechanic and the mechanic does a complete check on weekends. Mr. Mancuso stated that had recently requested a Level II CVOR abstract and the truck has been operating steadily although with “some weeks good, some not so good”. Mr. Mancuso referred to the CVOR abstract dated November 29, 2012 (Exhibit 4) and noted that the overall safety violation rate was 117.6% and there have been no violations since January, 2012.
The other companies named in the Ministry’s Order of Cancellation and Seizure have been cancelled and the only company functioning now is Aurostar. The one operating vehicle is the sole source of income for Mr. Mancuso’s family. Mr. Mancuso testified that cancellation of Aurostar’s CVOR certificate would result in severe financial hardship, stating that his sister is not well and Aurostar represents the family’s livelihood.
With respect to Aurostar’s outstanding fines, Mr. Mancuso stated that some of the fines have been cancelled and he is on a payment plan for the rest.
On cross examination, Counsel for the Registrar asked Mr. Mancuso if he was the president of Aurostar. Mr. Mancuso replied “yes, I think so”. When asked if his father was vice president, Mr. Mancuso stated he did not know. Counsel asked Mr. Mancuso what office his father Pietro had in the company. He replied that he had not read the articles of incorporation and that while his uncle had provided him with these when the company was turned over to him and he had read them then, he could not recall.
Counsel for the Registrar referred Mr. Mancuso to a CVOR abstract dated December 3, 2012 (Exhibit 5) which shows the safety violation rate at 124.4% and asked Mr. Mancuso if it was true that this abstract showed convictions added to the record subsequent to the CVOR abstract dated November 29, 2012. Mr. Mancuso agreed that it did.
With respect to driver J. M., Counsel asked Mr. Mancuso who had hired him. Mr. Mancuso indicated that his father did. When asked if he, Francesco Mancuso, had approved the hiring, he stated that he had not because it had taken place years ago. When asked if his father had encouraged him to keep J.M. as a driver, Mr. Mancuso stated no, he had not, and that the decision to keep him was “both of ours”.
When asked if he agreed that there were serious problems with Aurostar, Mr. Mancuso stated that there were a few months when two or three drivers were getting tickets. When asked if he had hired those drivers, Mr. Mancuso stated that his father had. When asked if his father had hiring and firing authority, Mr. Mancuso stated that now he did not. Mr. Mancuso then stated that his father is not completely out of the business. Pietro Mancuso dispatches drivers if Francesco Mancuso is not present and he collects payments. When asked if that meant he trusted his father, Mr. Mancuso replied “a monkey can pick up a cheque”. Counsel then asked if his father had attended the Show Cause meeting at the Ministry with him and had done most of the talking at that meeting. Mr. Mancuso replied that “we both did” but acknowledged that his father did speak on behalf of the company.
With respect to the outstanding fines, Counsel for the Registrar asked Mr. Mancuso to explain what he had meant when he testified that some of the tickets had been cancelled. Mr. Mancuso stated that a court date was set, he had spoken to the prosecutor and been told that some of the tickets would be thrown out. Counsel asked Mr. Mancuso to indicate which convictions were being appealed. The Applicant indicated he did not know the actual offences involved and, referring to his notes, indicated which fines were paid and for which fines there was a payment plan in place. He stated he had a court date on December 17, 2012 for his appeal. He could not recall exactly when he filed the paperwork with the courts.
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: 1199547 Ontario Ltd., [2011] O.L.A.T.D. No. 123; and Re: 2105360 Ontario Inc., [2011] O.L.A.T.D. No. 26.
The CVOR certificate for Aurostar was issued in December, 2004. The president of Aurostar is Francesco Mancuso. Mr. Kirchner testified that both Francesco Mancuso and his father, Pietro Mancuso, who was president of Roseway, attended Aurostar’s Show Cause meeting at the Ministry of Transportation on July 24, 2012. At that meeting, the representatives stated that Aurostar did not start to operate commercial vehicles until Roseway went bankrupt two or three years earlier and that Francesco Mancuso took over operation of Aurostar in the fall of 2011.
Mr. Kirchner testified that at the Show Cause meeting, Francesco Mancuso stated that his role in the business was to check trucks and ensure that they reached the job site; his father Pietro’s role, given his contacts, was to obtain contracts. Francesco Mancuso testified that Pietro Mancuso does have a current role in the operation of Aurostar although he is becoming “less and less” involved: he pays bills, collects payments and occasionally sends vehicles to job sites. On cross examination, Francesco Mancuso testified that both the current and past drivers were hired by his father, although he also stated that Pietro Mancuso does not having hiring or firing authority now. In the case of driver J.M., the decision to hire him was made by his father “years ago” but the decision to retain him was “both of ours”. When asked who had spoken on behalf of the company at the Show Cause meeting, he stated that both he and his father had.
Mr. Kirchner testified that at the Show Cause meeting, it was Pietro Mancuso who stated they had never had a problem in the past when asked if the company checked its CVOR record. Similarly, it was Pietro Mancuso who advised how Aurostar found its drivers. With respect to driver, T.T., it was Pietro Mancuso who stated he had been fired in the fall of 2011. In cross-examination at this hearing, Francesco Mancuso was not able to readily answer questions relating to Aurostar. He was not certain if his father was listed as a corporate officer. With respect to unpaid fines, he could not answer which convictions he was appealing or when documents had been filed with the courts in that regard.
The evidence clearly indicates that Aurostar is related to Roseway, whose president was Pietro Mancuso, Francesco Mancuso’s father. Aurostar began its active operations only when Roseway ceased its. The evidence also indicates that Pietro Mancuso has an active role in managing Aurostar. Hiring and firing decisions and obtaining contracts are key managerial functions as is speaking on behalf of the company at a Ministry Show Cause meeting.
Aurostar’s safety record is not in dispute in this case. It has an “Unsatisfactory” safety rating and the May, 2012 Safety Record Review indicates an overall safety violation rate of 125.28%. In the CVOR abstract dated November 29, 2012, the safety violation rate is 117.6%. In the CVOR abstract dated December 3, 2012, the rate is 124.4%. The Tribunal notes that the increase in the safety violation rate between November 29, 2012 and December 3, 2012 is the result of the addition of two convictions to the Applicant’s record between those dates: one dated August 21, 2012 and one dated November 29, 2012. Province wide statistics as at March 31, 2012 indicate that only .2% of all CVOR certificate holders have a violation rate greater than 100%.
Roseway’s safety record is also not in dispute. Aurostar’s May, 2012 Safety Record Review also sets out a chronology of events with respect to Roseway’s record. This chronology includes the issuance of three Notices of Suspension and Seizure by the Ministry of Transportation, although the Tribunal notes one of those was rescinded when the carrier paid outstanding fines. Roseway did not appeal the Notice of Cancellation and Seizure which is the subject of this hearing.
On a balance of probabilities, the Tribunal finds, in accordance with section 17(4)(c) of the Act, that the Applicant is related to Roseway and that their 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.
A carrier’s safety violation rate is based on its performance over a two year rolling window. The Applicant’s representative conceded that Aurostar’s safety record is not “stellar” but noted that Francesco Mancuso assumed responsibility for the operation of the company in the fall of 2011 and had no role in Roseway. He further noted that there have been no operational violations since January, 2012 but the safety violation rate will not improve until more time has passed and past violations are dropped from the record. Given this more recent improvement in the record, the Applicant’s representative argued that cancellation of Aurostar’s CVOR certificate would be excessive and a suspension would be a more appropriate sanction. He further noted that Aurostar is the sole source of income for the Mancusos.
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 September 10, 2012. The Applicant is responsible for its record both before and after Francesco Mancuso became more actively involved in its operation in the fall of 2011 and that record remains at a violation rate exceeding 100%.
The Tribunal acknowledges that that no violations appear on the record dated after January, 2012 although convictions related to earlier findings continue to be added. It also acknowledges that the Applicant appears to be attempting to address its outstanding fines. However, the evidence before the Tribunal is of an ’Unsatisfactory’ safety rating and of insufficient responses or inattention to safety related issues.
There is no evidence before the Tribunal of a proactive commitment to safety at Aurostar other than the fact that the record shows no violations subsequent to January, 2012. In the absence of testimony regarding a safety plan or proactive actions, whether the record improvement is a function of Aurostar’s reduced fleet size, changed practices, or serendipity, is unknown.
While Francesco Mancuso may have had no role in the operation of Roseway, the Tribunal has found that Pietro Mancuso, the principal of Roseway, has managerial functions at Aurostar. Pietro Mancuso’s inattention to safety related matters is demonstrated not only by Roseway’s record but also by his responses at Aurostar’s July 24, 2012 Show Cause meeting. Mr. Kirchner testified that Pietro Mancuso described driver T.T. as a good man with no problems who had been terminated in the fall of 2011. However, at Roseway’s Show Cause meeting in January 2010, Roseway’s representative advised the Ministry that driver T.T. was a problem and had been dismissed. Driver J.M. was described as only getting the odd ticket although the record shows he had two convictions. Former driver J.L. was described as a good driver although he was involved in two collisions. When asked if Aurostar reviewed its CVOR abstracts, Pietro Mancuso stated that he was unaware that reviewing CVOR abstracts was an issue even though this was also raised at the 2008 interview he attended at the Ministry.
With respect future operations, Francesco Mancuso stated at the Show Cause meeting that he would ensure drivers were qualified by checking references and following them to job sites to ensure they were not sleeping or fighting. Driver J.M. continues to work for Aurostar notwithstanding convictions and out of service infractions. Francesco Mancuso was unaware of the requirement for a vehicle maintenance statement. No safety action plan was provided to the Ministry.
As noted above, three notices of Suspension and Seizure were issued by the Registrar to Roseway, including one relating to unpaid fines which was subsequently rescinded. Suspension of operations does not appear to have been an incentive for Roseway to improve its operations. The pattern of safety related findings continued into Aurostar’s operations and the Tribunal notes that Aurostar also has outstanding fines, notwithstanding recent efforts to address them. The Tribunal therefore is not convinced that a suspension would result in Aurostar taking a more proactive approach to 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 September 10, 2012 and to cancel CVOR certificate 133-641-425 issued to Aurostar Highway Maintenance Inc. 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 December 17, 2012