Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-09-17
FILE:
8015/CVOR
CASE NAME:
8015 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 Suspend the Commercial Vehicle Operator’s Registration Certificate and Seize the Plate Portion of Permits Issued
Lewicki Transportation Co. Inc.
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
TRIBUNAL:
Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Applicants:
Mark Reynolds, Agent
For the Respondent:
Douglas Lee, Counsel
Heard in Toronto:
September 5, 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 March 22, 2013, pursuant to section 47(1) to suspend the Commercial Vehicle Operator’s Registration ("CVOR") certificate and to seize the plate portion of any permits issued.
BACKGROUND
The Applicant is owned by Ms. Shelley Lewicki and has been licensed by the Ministry of Transportation (“MTO”) since 1989. It operates buses. It failed a facility audit in 2008 and nine charges were laid.
The MTO issued a warning letter to the Applicant on March 29, 2012, in which among other things, it noted an unacceptable safety record of the Applicant. The MTO issued a notice of cancellation and seizure to the Applicant on December 18, 2012.
The MTO invited the Applicant to a “show cause” meeting on January 29, 2013, after which it modified its order to one of suspension for seven days.
Counsel for the Registrar filed three books of documents1 and called three witnesses. The Applicant filed a brown envelope with a number of documents.2
Ms. Lewicki testified for the Applicant.
The Applicant admitted its safety record save for an update as of July 2013.
DECISION
The Tribunal has carefully considered all of the evidence. The Registrar has proved his case on a balance of probabilities. Accordingly, the CVOR certificate of the Applicant will be suspended and the plate portion of any permits issued will be seized for the reasons which follow.
THE EVIDENCE FOR THE REGISTRAR
James Kirchner
Mr. Kirchner is a Carrier Safety Administrator with the MTO. He reviews the safety records of heavy trucks and buses. He is familiar with the Applicant and prepared the notes for the Deputy Registrar which led to the notice of cancellation in December 2012. He was present and took the notes at the “show cause” meeting in January 2013.
Mr. Kirchner said that bus companies typically have a low safety violation rate. But the overall safety record of the Applicant was 71.2%. Indeed, the Applicant was one of three bus operators in Ontario which had such a poor record out of 1,500 bus operators in Ontario.
Mr. Kirchner referred the Tribunal to the well-known CVOR and Carrier Safety Rating Public Guideline3 which outlines the system used to evaluate the safety records of carriers relative to others in Ontario.
Mr. Kirchner said that Ms. Lewicki made a poor impression at the “show cause” meeting. Her submissions were vague and she seemed ill-prepared. There was no evidence of driver training. There were no written policies and there was no information as to how background checks were to be implemented. Ms. Lewicki had submitted a one-page action plan which was vague and unsatisfactory.
The Deputy Registrar gave her two weeks to make additional submissions.
Ms. Lewicki submitted to the MTO, in February 2013, the “Lewicki preventive maintenance manual”4 . Mr. Kirchner then googled and found the “PREVENTIVE MAINTENANCE MANUAL FOR VIRGINIA SCHOOL BUSES” issued by the Virginia Department of Education5 which bore a striking resemblance to the manual produced by Ms. Lewicki.
Mr. Kirchner noted that some of the commitments in the Lewicki manual did not comply with the requirements of the Act.
Mr. Kirchner discussed three incidents which concerned the MTO.6 On two occasions, the Applicant’s drivers rear-ended other vehicles which led to charges being laid. In another case, a driver drove a school bus up to a McDonald’s drive-through and collided with an awning. The driver then drove away without identifying himself.
The MTO felt that the Applicant was not sufficiently policing aggressive driving and that there was a risk to public safety.
Finally, Mr. Kirchner testified that the safety record of the Applicant worsened after the warning record. Nevertheless, and because the Applicant had not had previous suspensions, the Deputy Registrar decided to reduce the sanction to a suspension of seven days.
Michael Carr
Mr. Carr is a MTO Enforcement Officer. He inspects trucks and buses. He explained BIT. This is a MTO program. The acronym stands for Bus Information Inspection Tracking System. Bus companies must be inspected at least once a year.
He said that they categorize bus companies as A, B and C operators:
A = A clear inspection
B = Some violations but no “out-of-service” buses.
C = Operators with out-of-service defects. If the C operator clears up its file, then it can be promoted to an A or B operator.
The Applicant has been a C operator since early 2012.
Mr. Carr said that he has had some difficulty with the Applicant in arranging for inspections. The Applicant consistently tells him that some buses are “in the shop” or otherwise unavailable. Currently, he wants to see six buses but only three have been produced at the inspection station.
Edward Paradis
Mr. Paradis is currently employed at the Ministry of Labour. In 2008, he was a facility auditor for the MTO.
He conducted the audit of the Applicant. Usually, such an audit took two or three days. He completed this audit in three hours. That was because the Applicant lacked any meaningful records. For example, there were no logbooks or time sheets. Most of his time was taken up with trying to find records.
He was disappointed with the Applicant as it had not followed procedures. He described the Applicant as one of the worst truck and bus companies he had audited.
THE EVIDENCE OF THE APPLICANT
Ms. Lewicki acknowledged that she was responsible for her drivers’ actions. However, she went on to complain that when a driver is convicted of an offence under the Act or gets a ticket, it shows up on the Applicant’s record.
She said that she should have had legal representative at the “show cause” meeting in January 2013. The notes of the meeting were “tainted” against her. She agreed that in 2008 the Applicant was disorganized.
Her representative took her through the actions she had taken to improve the Applicant’s safety record:
Supervised circle checks of the buses have been instituted. She says this is the main reason the Overall Safety Violation Rate for the Applicant as of July 28, 2013 had dropped to 61.4%.
She said that the Applicant now pulls the abstracts of drivers every three months to identify problem drivers.
Driver training is now to be done by a new hire who is MTO approved as a driving instructor.
Driver Dismissals: Her representative took her through the drivers that the Applicant has dismissed for various reasons, including convictions, using the bus for personal reasons or for failing to do his bus inspection.
A new procedure is in place whereby unless the driver has filled out his hours of service book he will not be paid.
Counsel for the Registrar obtained the following admissions on cross-examination:
No driver training has yet taken place.
She plagiarized the Virginia School Buses preventive maintenance manual.
One driver who was convicted of an offence lesser than as originally charged was not dismissed for six months after his conviction. The driver who drove into the McDonald’s awning was fired. But Ms. Lewicki hired him back for the summer of 2013.
The new driver trainer is to work only part-time as he is permanently employed elsewhere.
The Applicant pulled the abstracts of the drivers once in the last six months.
Ms. Lewicki should have been better organized when she went to the “show cause” meeting earlier this year.
The Applicant had done nothing between the date of the warning letter and December 2012 to address the MTO concerns on safety.
ANALYSIS
Mr. Lee, Counsel for the Registrar, described the Applicant as disorganized, directionless and desperate. This is an apt assessment fully supported by the evidence. Consider that Ms. Lewicki did nothing from the date of the warning letter in March 2012 until December of that year. Moreover, she has done virtually nothing to date to address the safety concerns of the Registrar.
Ms. Lewicki is long on promises but short on execution of those promises. She says that she did not appreciate the severity of the problems of the Applicant when she went unprepared to the “show cause” meeting. Apparently, after the meeting she did. This led to the production of a plagiarized preventive maintenance manual two weeks later. This was an act of a desperate person.
The Tribunal notes that the Applicant has reduced its overall safety violation rate to 61.4% but this is still too high.
The inaction of the Applicant in the face of the safety concerns of the Registrar calls for a sanction. The Applicant is fortunate that the Registrar decided to reduce the penalty he originally sought.
Section 47(1) of the Act provides that the Registrar may suspend a CVOR certificate and seize number plates when:
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.
When one examines all of the evidence, it is obvious that the Registrar has proved his case on a balance of probabilities.
ORDER
The Registrar shall suspend the CVOR certificate of the Applicant for seven days. In connection therewith, the Registrar shall seize the plate portion of permits issued and number plates.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released on: September 17, 2013