Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-01-02
FILE:
7652/CVOR
CASE NAME:
7652 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
Sweet Melissa Trucking Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Applicants:
Cecelia Scot, Agent
For the Respondent:
Patrick S. Moore, Counsel
Heard in Toronto:
December 17, 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 “Respondent 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.
BACKGROUND
The Applicant is based in Clinton, Michigan in the USA. It obtained its CVOR certificate on May 14, 2010. Its safety record concerned the Ministry of Transportation (the “Ministry”) at an early date. On July 2, 2010, the Ministry issued a warning letter to the Applicant.
The Ministry issued a notice of cancellation and seizure on July 25, 2011. This was subsequently withdrawn.
The Applicant’s safety record did not improve; so the Ministry issued a second notice of cancellation and seizure on September 10, 2012.
Counsel for the Respondent Registrar filed two books of documents (Exhibits 3 and 4) and called one witness. The Applicant filed a few documents and Ms. Scot testified for the Applicant.
THE EVIDENCE FOR THE RESPONDENT
Daniel Ramer is a Carrier Safety Administrator with the Ministry. Among his tasks is to monitor the safety records of CVOR licensees in Ontario. He referred the Tribunal to Ontario’s CVOR and Carrier Safety Rating Public Guideline (Exhibit 3, Tab 8). This is a point and weight based system to evaluate the safety records of carriers relative to others in Ontario.
He assembled the documents in Exhibit 3 and 4. He explained that there are 54,000 carriers in Ontario and 95% of them have an overall violation rate under 35%. Only .2% of carriers exceed their overall threshold level (100%) and it is these that the Ministry looks to cancel.
He referred to the record of the Applicant. By July 2011, the Applicant had an overall safety violation rate of 206.03%. This appalling record was made up of Collisions (55.41%); Convictions (420.19%); and Inspections (78.95%).
The Ministry summoned the Applicant to a “show cause” meeting on August 10, 2011. Notwithstanding the poor record, the Ministry agreed to set aside the cancellation order and allowed the Applicant to continue provided that its safety violation record did not exceed 50% for the one year period commencing on August 10, 2011 and that all outstanding fines were paid by September 21, 2011.
The fines were paid but the record of the Applicant continued to be poor. Its record for a 10-month period, ending July 19, 2012, showed a safety violation rate of 152.86%. The Applicant was not meeting the conditions imposed upon it.
Most noteworthy among the violations were brakes, hours of service, trip inspections, and speed limiters. Some examples include the following:
On April 19, 2012, the Applicant was convicted of operating a vehicle without having the CVOR certificate in the vehicle. On September 23, 2011, the Applicant was convicted for being equipped with a working speed limiter set at a higher speed than the 65 mph mandated by law. In another case, the Applicant was convicted for a speed limiter set at 80 mph. A vehicle inspection report dated May 26, 2012 read:
3rd axle right side outside tire flat. 2nd axle left and right side brakes out of adjustment. Operators CVOR is expired.
The Applicant was also in trouble with US regulators. Under the US system the Applicant was put on alert (Exhibit 3, tab 11) for its unsafe driving record, fatigued driving and vehicle maintenance.
Finally, Mr. Ramer became aware that the Applicant had been convicted in 2012 for two offences and had outstanding fines of $25,000.00.
Based on the unsatisfactory performance of the Applicant after August 2011 and its failure to adhere to the conditions imposed by the Ministry, it issued a second Cancellation and Seizure Order dated September 10, 2012.
THE EVIDENCE FOR THE APPLICANT
Cecelia Scot is the secretary and owner (with her husband) of the Applicant. She attended the two show cause meetings with Ministry officials in 2011 and 2012.
The Tribunal summarizes her testimony under the following headings:
Overall safety violation rate
She alleged that the Applicant has been “targeted” by the inspectors. She said that when the inspectors do not find any problems with one of the Applicant’s trucks, they do not write up a report. Had the inspectors filed such reports, Applicant’s results would have been much better.
In reply testimony, Mr. Ramer said that he had on file 13 “clean” inspection reports for the Applicant and that there is no incentive for an inspector not to write up all his reports, as his compensation depends, in part, on the number of reports he files.
$25,000.00 in unpaid fees
She said that she did not receive from the court notice of the adjourned date for the two hearings and that these fines were imposed in the Applicant’s absence.
Speed limiters
She said that every truck is checked to ensure that the speed limiters are set at the mandated speed.
On cross-examination, Counsel for the Respondent noted that the Applicant had been convicted seven times for speed limiter violations. She replied that “she could not do any better and that while the Applicant’s safety record is bad, it is not horrible”.
USA record
She conceded that the Applicant was under “Alert” in the USA but said that the Applicant has been doing better.
Eleven convictions for failure to have proper and up-to-date licence on trucks
She complained of poor drivers and the turnover in her drivers for these convictions.
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.
The onus lies on the Respondent Registrar to prove his case on a balance of probabilities.
ANALYSIS
The Applicant has a very poor Overall Safety Violation Rate. In 2011 and 2012, it ranked within the .2% of worst carriers in Ontario. Notwithstanding the Ministry’s concession in 2011 which allowed the Applicant to continue to operate in Ontario, it failed to meet the conditions mandated by the Ministry.
Ms. Scot seems incapable of recognizing that the Applicant has a problem, let alone a strategy to solve it. Her testimony consisted of a number of unsubstantiated statements and allegations and the Tribunal rejects it.
The Ministry has the duty to protect Ontarians from the worst of the operators on our roads. The Respondent Registrar was right to be concerned. The past is prologue. The Tribunal is not satisfied that the Applicant will, in future, operate its commercial motor vehicles safely or in accordance with the law. The Respondent Registrar has met the onus on him of proving his case on a balance of probabilities.
DECISION
Effective immediately, CVOR certificate 167-636-116 and plate portion permits for all commercial vehicles and trailers issued in the name of the Applicant shall be CANCELLED. The plate portion of permits, or if issued by a jurisdiction other than Ontario, the permits, and the number plates shall be seized.
ORDER
The Tribunal orders the Respondent to carry out its cancellation and seizure order against the Applicant.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released: January 2, 2013