Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 8309/CVIS
CASE NAME: 8309 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
3235149 Canada Inc. o/a Real Transport Applicant
-and-
Registrar of Motor Vehicles (the "Registrar") Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: Sylvie Chabot, Agent
For the Respondent: Julie Vu, Counsel
Heard in Toronto: September 27, 2013
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal by 3235149 Canada Inc. o/a Real Transport (the “Applicant”) respecting an Impoundment of a trailer, VIN R9611 (the “trailer”), pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The Tribunal notes that the Applicant’s appeal documents use the name Real Transport but its full legal name is the numbered Canadian corporation set out above.
PRELIMINARY MATTERS
At the outset of the hearing, the Registrar brought a motion for a declaration that the Applicant did not have standing to advance the appeal. The Applicant leases the trailer from GE Canada Leasing. It was the position of the Registrar that the Applicant was not the owner of the trailer as that term is defined in the Act and that only the owner has standing. The definition of owner in s. 50.3 of the Act is set out in s. 82.1 (1):
“Owner” means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and plate portion, means the person whose name appears on the vehicle portion;
The Applicant is based in the Province of Quebec. The Registrar drew the Tribunal’s attention to the certificate of registration issued by that province (Ex 3. Tab 4, p.30). The certificate is a single piece document that does not have a plate portion and vehicle portion. Two entities are identified on the certificate, the lessor, GE Canada Leasing and the Applicant. In light of the definition of “owner” in the Act, given the fact that the Applicant’s name appears on the certificate of registration, the Tribunal finds that the Applicant is an owner under the Act and, thus, has standing to bring this appeal.
FACTS
The Applicant admitted that, at the time of the inspection, one of the trailer air couplings had become detached. The term for this type of coupling in the industry is a “glad hand’ and that is the term the Tribunal will use hereafter in this decision. The facts are as follows:
The Applicant’s driver was driving along Highway 401 when a glad hand became detached. There was resulting major air leak. The driver looked for a safe place to pull off the highway to reattach the glad hand. He was close to the Whitby Truck Inspection Station, which was closed at the time. As he pulled off the highway into the inspection station it opened and he proceeded to drive over the scale. The scale operator noticed the detached glad hand and sent the vehicle for an inspection. Two officers conducted an inspection on the vehicle. The driver was not permitted to reattach the glad hand so, not surprisingly; the officers found that the trailer had no brakes. They ordered the vehicle impounded because it had a critical defect as set out in s. 7 (2) of O/Reg. 512/97:
(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:
- 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.
ISSUE
Should the impoundment the Applicant’s commercial motor vehicle or trailer be confirmed or set aside?
LAW
Section 50.3 of the Highway Traffic Act states as follows:
(1) The owner of a commercial motor vehicle or trailer that is impounded under section 82.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.
The applicable grounds for appeal are:
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the vehicle are,
(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 the impoundment or order the Registrar to release the vehicle.
Section 82.1(37) provides that:
(37) The Lieutenant Governor in Counsel may make regulations,
(a) prescribing what constitutes a critical defect…
APPLICATION OF THE LAW TO FACTS
The Registrar takes the position that the inspection found a critical defect and the vehicle was properly impounded. The Registrar submits that the time for the determination of a critical defect is at the moment of inspection. The fact that the defect was easily remedied is irrelevant. The Applicant argues that there is no defect in the vehicle. In the Applicant’s submission, the condition was a result of normal road usage and the driver took immediate corrective and safe action to remedy it when he pulled off the highway into the closed inspection station.
S. 7 (1) of O/Reg. 512/97 sets out the methodology for testing 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.
The difficulty for the Registrar is the fact that there was no air pressure in half of the air brake system because of the detached glad hand. The test was doomed to failure because the precondition for the test was not met. The Tribunal is of the view that the standard set out above is not designed to address problems that are inherently ephemeral. They are designed to catch operators who neglect vehicle maintenance on a long term scale, not deal with issues that arise out of normal truck operation and are immediately addressed in a safe manner by the operator.
The Tribunal agrees with the assessment of Vice-Chair Koprowski in Sunrise Equipment Auction Inc. v. Registrar of Motor Vehicles [2007] O.L.A.T.D. No. 278 that the purpose of these provisions is to “safeguard the public.” In that case the brakes on the impounded vehicle were out of adjustment, a condition showing on-going poor maintenance and inspection. It did not avail the Applicant in that case that the condition was easily remedied by a mechanic in a matter of minutes. Rather, the ease of repair highlights for this Tribunal that operator’s carelessness. In the current case, a sudden and unforeseeable condition arose and the driver took immediate and appropriate action to remedy it. There was no lack of long-term maintenance and the Tribunal was given no evidence of poor inspection techniques. With the glad hand re-attached the brakes functioned as required. The Tribunal cannot see in what manner the Registrar’s actions safeguard the public. The regulatory scheme has a large punitive element to punish poor operators and remove unsafe vehicles from the highway. It should not be used to punish an otherwise safe operator when emergencies arise and appropriate steps are taken to address the emergency.
ORDER
Upon the application by the Applicant to appeal the impoundment dated July 18, 2013 of a trailer, VIN R9611, pursuant to Section 50.3 of the Highway Traffic Act, and having considered the evidence before the Tribunal, and the submissions of the parties;
IT IS THE ORDER OF THE TRIBUNAL that the vehicle be released.
LICENCE APPEAL TRIBUNAL
__________________________
D. Gregory Flude, Vice Chair
Released: October 2, 2013