Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-04-25
FILE:
7783/CVOR
CASE NAME:
7783 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
2082634 Ontario Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Terrance A. Sweeney, Vice-Chair
APPEARANCES:
For the Applicant:
Stuart McConnach, Agent
For the Respondent:
Douglas Lee, Counsel
Heard in Toronto:
April 18, 2013
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 19, 2012 pursuant to section 47(1) of the Act to cancel a Commercial Vehicle Operators Registration (“CVOR”) certificate and to seize the plate portion of any permits issued.
BACKGROUND
The Applicant obtained its CVOR certificate on March 16, 2010. The Ministry of Transportation (the "Ministry") was concerned about its safety record at an early date and issued a warning letter to the Applicant on November 25, 2010.
The Applicant failed a facility audit conducted on October 13, 2012. The Ministry issued a Notice of Cancellation and Seizure and "unsatisfactory" Carrier Safety Rating dated October 24, 2012.
The Applicant attended a "show cause" meeting with Ministry officials on November 7, 2012. The Ministry issued a second Notice of Cancellation and Seizure on November 19, 2012.
DECISION
The Tribunal has considered the evidence and submissions and ORDERS the Registrar to carry out its cancellation and seizure order against the Applicant for the reasons which follow.
THE EVIDENCE
For the Registrar
Sherry Atallah, a Carrier Safety Administrator with the Ministry, was present at the “show cause” meeting on November 7, 2012 and took the notes at the meeting. Ms. Atallah monitors the safety records of CVOR licensees in Ontario. She assembled the Respondent’s Book of Documents marked as Exhibit 3.
Exhibit 3 Tab 14 is Ontario's CVOR and Safety Rating Public Guideline. Ms. Attallah explained that the Guideline outlines the point and weight based system used to evaluate the safety records of carriers relative to others in Ontario.
There are 54,000 carriers in Ontario, 95% of whom have an overall violation rate under 35% and .2% exceed their overall threshold level (100%). It is the latter .2% group of carriers whose certificates the Ministry seeks to cancel.
During the 24-month period, June 21 2010 to June 20, 2012, the Applicant had an overall safety violation rate of 107.3% made up of Collisions, 14.22%, Convictions, 212.61% and Inspections, 82.66%.
The Applicant's record deteriorated to 114.55% from the time of its failed facility audit in October, 2011 to October, 2012.
At the "show cause" meeting on November 7, 2012, Mr. McConnach, the principal of the Applicant, admitted to not paying attention to the safety record and violations incurred by drivers. He said that he would like to operate one truck and two trailers in future and that he would be the only driver.
The Ministry highlighted a number of concerns including logbook violations, load security issues, driver fatigue, improper licences, broken springs and loose fasteners.
Mr. McConnach admitted that he only had "50% to 60%" knowledge of the "Hours of Service" legislation. A Ministry official noted several problems with hours of service violations, including false log entries and asked Mr. McConnach how he could instruct drivers on logbook entries with his limited knowledge. He said that he would get some training on hours of service to improve his knowledge.
The Ministry issued its second Notice of Cancellation and Seizure on November 19, 2012.
For the Applicant
Mr. McConnach testified. He called no witnesses and filed no documents. He asked two questions of Ms. Atallah on cross-examination, one of which was "did she believe in giving people a second chance?"
Mr. McConnach said that the he has only kept one truck and two trailers. He admitted to making "many mistakes" but asked the Tribunal for a second chance so that he can make a living.
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 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)..
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.
ANALYSIS
The Applicant has a very poor Overall Safety Violation Rate which ranks it within the .2% worst carriers in Ontario.
The Applicant presented no defence against the allegations made against it by the Registrar. Nor did Mr. McConnach present any plan to show how the Overall Safety Violation Rate of the Applicant would improve if it were allowed to keep its certificate.
The Tribunal accepts the evidence of Ms. Atallah and finds that the Registrar has proved his case on a balance of probabilities. The Applicant failed to improve its safety record after being warned and after failing a facility audit. The Applicant, therefore, has already had its second chance. A CVOR certificate is a privilege and not a right.
The Ministry has a duty to protect Ontarians from the worst operators on our roads.
ORDER
Accordingly, pursuant to the provisions of s. 50 (2) of the Act, the Tribunal orders the Registrar to cancel CVOR Certificate 166-220-113 issued to the Applicant and to seize. the plate portion of permits, or if issued by a jurisdiction other than Ontario, the permits, and the number plates.
LICENCE APPEAL TRIBUNAL
Terrance A. Sweeney, Vice-Chair
Released on: April 25, 2013