Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8190/CVIS
CASE NAME: 8190 v. Registrar of Motor Vehicles
Appeal under Section 50.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 82.1 of that Act
Eduardo Barbosa Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jim Kennelly, Presiding Member
APPEARANCES:
For the Applicants: Michelle Barbosa, self represented
For the Respondent: Patrick S. Moore, Counsel
Heard in Kingston, ON July 29, 1013
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the Tribunal) by Eduardo Barbosa (the “Applicant”) respecting an Impoundment of a commercial motor vehicle or trailer pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the Act”.
FACTS:
The truck and trailer in question are owned by #1626027 Ontario Limited known as Special Express.
Michelle Barbosa gave a sworn statement that she had been asked by Eduardo Barbosa to be the agent for this appeal. She also swore that she was well aware of all of the facts related to the case.
Counsel for the Registrar submitted a Book of Documents stamped as Exhibit #3.
Exhibit #1 was the Order to Impound. Exhibit #2 was the Notice of Appeal Form. All parties agreed that the Book of Documents would be followed and referred to during the appeal.
Witnesses were excluded while others gave testimony.
Counsel for the Registrar called two witnesses. Both gentlemen were experienced Ministry of Transportation officers with certificate training in critical inspection.
The first officer was Mr. Cadieux. He described how the vehicle and the 48 foot trailer in question were pulled over for routine inspection at the Lancaster Truck station on June 20, 2013.
A review of the log book and documents for the truck and driver came into question which led to the further more detailed mechanical inspection of the trailer.
The inspector gave evidence that the push rods on the trailer were not working. This led to measurement that confirmed there was “zero” movement from the push rods demonstrating no brakes on the trailer. A further inspection of the brakes, shown in photographs in the Book of Documents Tab 3 showed a dusting of rust on the brakes. This is an indication that the brakes were not working. That area of the brakes would have been a dark colour had there been brake contact.
On that night a second officer (Mr. Parisien) was called to do his independent inspection as the first officer concluded there was a more than fifty percent defect on the trailer.
Mr. Parisien gave testimony that there was no movement on the push rods, no evidence of contact on the brake and there was a slight rusting which is an indication that no braking had taken place.
The officers stated that their inspection indicated the criteria had been met for impound as the four brakes on the trailer were not working.
The inspection time was from 15:49 to 18:37 hours.
Ms. Barbosa gave evidence that the truck and trailer had left Etobicoke on June 19, 2013, travelled to Quebec and was returning when making the stop at Lancaster Truck Station.
According to Ms. Barbosa the driver was pulled over in Quebec at a truck inspection. The applicant had a document showing that the Quebec inspectors issued a notice that proper documentation was not in the truck. The truck driver and Special Express have since mutually agreed to part ways.
Ms. Barbosa gave evidence that after the tractor was returned to Etobicoke it was noticed that the tractor protection valve was not working properly. It was determined by the R.C.K. Queensway Truck Service Centre Limited that the valve on the tractor could have caused the brakes on the trailer to malfunction. (Exhibit #5)
Before a tractor or trailer can be released from the Truck Inspection Station a mechanic must authorize that repairs have been made. In this case evidence was given that Villeneuve Mechanical Services of Maxville inspected the trailer. This mechanic stated in his opinion there were no defects to the trailer. (Exhibit #3, Tab 7, page 34). The trailer was then released to Cornwall Towing for impound.
The Applicant’s argument is that the trailer was in good mechanical condition with the brakes working. It was the valve on the tractor that was a problem. The Applicant stated that the trailer should not have been impounded and their company should have been allowed to come with a new tractor to collect the trailer.
In final submission, Mr. Moore for the Registrar provided a document detailing the relevant sections of the Highway Traffic Act (Exhibit #6). Mr. . Moore reminded the Tribunal that not one of the brakes on the trailer was functioning that evening. He stated that “diagnosis” of the problem was not the question. It was what was happening when the inspection was done.
In her final submission statement, Ms. Barbosa reminded the Tribunal that the problem was not the trailer but the air flow out of the tractor.
The truck company had to send another vehicle and staff to empty the trailer of its load. This was costly, as was the towing and impoundment, when the company believes it was a tractor problem and not a trailer brake defect.
ISSUE:
Should the impoundment the Applicant’s commercial motor vehicle or trailer be confirmed or set aside?
LAW:
Section 50.3 of the Act defines this Tribunal’s jurisdiction to hear and determine impoundment appeals. Section 50.3 of the Act states:
50.3(1) The owner of a commercial motor vehicle or trailer that is subject to an order to impound and suspend under section 82.1 may, upon paying the prescribed fee, appeal the order to the Tribunal.
Parties
(2) The owner and the Registrar are the parties to an appeal under this section.
Grounds for appeal
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may set aside the order to impound and suspend are,
(a) that the commercial motor vehicle or trailer that is subject to the order was stolen at the time the order was made; or
(b) that the commercial motor vehicle or trailer had no critical defects at the time of the inspection under section 82.1.
Powers of Tribunal
(5) The Tribunal may confirm or set aside the order to impound and suspend.
Ontario Regulation 512/97, Part II, Section 7, sets out the method of measurement of push rod travel for air brakes and what amounts to critical defects:
Regulation 512/97 under the Act states:
Air Brakes
- (1) In this section, the measurement of travel of a push rod out of a service brake chamber shall be taken with the vehicle engine turned off, an initial air system pressure between 90 and 100 psi (620 and 690 kPa), the park brakes released and the service brake actuator fully applied. O. Reg. 512/97, s. 7 (1); O. Reg. 166/12, s. 1 (1).
(2) A commercial motor vehicle or trailer, if the trailer is required by subsection 64 (5) of the Act to have brakes, equipped with an air brake system other than an air-over-hydraulic brake system has a critical defect for the purposes of sections 82.1 and 84 of the Act if one or more of the following defects is present on more than 50 per cent of the wheel brakes of the vehicle:
A drum or rotor is cracked, broken or missing.
A chamber housing, chamber support, chamber push rod, slack adjuster, cam shaft, or cam shaft support bracket is broken or missing.
A shoe, shoe lining, shoe block, pad, pad lining or pad block is missing.
The push rod travel out of the service brake chamber is ¼ inch (6.3 mm) or more beyond the measurement listed in Column 2 of Schedule 1 for the type of chamber listed in Column 1 of Schedule 1 if the brake is cam or disc type.
When the brake actuator is applied,
i. there is no movement of the chamber push rod, slack adjuster or cam shaft,
ii. neither one of the two shoes moves, or
iii. neither one of the two shoe linings contacts the drum. O. Reg. 512/97, s. 7 (2); O. Reg. 130/10, s. 5; O. Reg. 166/12, s. 1 (2).
Section 82.1(8) of the Act provides that a vehicle will be impounded for 15 days if it has not previously been impounded under this section within the last two years.
APPLICATION OF THE LAW TO FACTS:
The Tribunal accepts the testimony of the two Transportation officers based on their lengthy careers as well as their critical defect training.
In this situation the push rods on the trailer were not working. It is possible that this was a result of a faulty valve on the tractor. However, the main point is the fact that the trailer did not have brakes when pulled over at the Lancaster station.
We know that the driver was questioned over missing log book information and documents carried on the truck. We do not know if the driver did a check of his truck and trailer before travelling.
Ms. Barbosa showed the Tribunal an offense document from Quebec stating truck documentation was missing. It was suggested by the Applicant that the truck must have been deemed safe at the Quebec site. There is no evidence that a mechanical check was done—only the statement that paper documentation was inadequate.
The trailer could not have arrived at the Lancaster station on its own. That night it was pulled by a specific tractor and that combination was unsafe to drive on Ontario highways. Without brakes on the trailer it would have been more difficult to stop in an emergency situation.
The applicant made an articulate case as to the difficulty and cost this caused the trucking company. The unloading of the truck, staff time and mechanics’ fees along with the impoundment costs. The Tribunal understands the hardship but the fact remains that the tractor and trailer in question were unsafe on the highway that night.
The resulting 15 days impoundment is the cost of the offense.
DECISION:
Upon the application by Eduardo Barbosa to appeal the impoundment dated June 20, 2013 of a commercial motor vehicle or trailer pursuant to Section 50.3 of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL that the impoundment of 15 days is confirmed and the appeal denied.
The vehicle was already towed and impounded and is now back in the ownership of Eduardo Barbosa of Special Express.
LICENCE APPEAL TRIBUNAL
Jim Kennelly Presiding Member
RELEASED: August 13, 2013