Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-12-09
FILE:
8405/CVIS
CASE NAME:
8405 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
2344415 Ontario Inc. o/a Kang Freight System
Applicant
-and-
Registrar of Motor Vehicles (the "Registrar")
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
Michael Labutte and Danny Branoff, Agents
For the Respondent:
Douglas Lee, Counsel
Heard in London:
November 18, 2013
REASONS FOR DECISION AND ORDER
1This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by 2344415 Ontario Inc. o/a Kang Freight System (the “Applicant”) respecting an Impoundment of a Volvo tractor unit, VIN 4V4NC9GH76N411571 bearing plate number 1906PM (the “vehicle”), pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
2The Applicant chose not to lead any evidence. The Tribunal heard from two Ministry of Transportation (“MTO”) officers, Serge Rainville and Richard Gromowski. Both officers hold Critical Inspection Certificates pursuant to s. 1. of O/Reg. 512/97. Accordingly, there is no dispute over the events leading to the impoundment of the vehicle.
3On October 21, 2013 the vehicle was inspected by the two MTO officers at the Putnam South Weigh Station on Highway 401 just east of London, Ontario. Officer Rainville conducted a first inspection and determined that five of the six brakes on the vehicle were out of adjustment. He stated that he followed the inspection protocol set out in s. 7(1) of O/Reg. 512/97. Officer Gromowski also stated that he and Officer Rainville followed the protocol when they together conducted a second inspection. Section 7(1) states:
- (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.
4Four of the brakes were out of adjustment by an amount greater than the ¼”. The fifth, while being out of adjustment, was less than ¼”. They ordered the vehicle impounded because it had a critical defect as set out in s. 7(2):
(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:
- 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.
5Officer Gromowski testified that the applicable measurement listed in Column 2 of Schedule 1 for the type of brakes on the vehicle’s drive wheels, clamp type 30 brakes with a regular stroke, is 2”. Both officers confirmed that the push rod travel on the four defective brakes was from in excess of 3/8” to over ½”.
6Both officers were asked about their training and certification under s. 82.1 of the Act to inspect for critical defects. They both stated that they had been trained with respect to the Commercial Vehicle Safety Alliance (CVSA) standard. They stated that the CVSA establishes an inspection protocol that is standard throughout North America but does not address infringements of the Act and the consequences that flow therefrom. In cross-examination, they conceded that the vehicle, when combined with the trailer, had ten brakes and that four defective brakes is less than 50% of the total of ten brakes on the combined rig. They stated, however, that the tractor and the trailer are considered as separate vehicles and the tractor had a total of six brakes bringing its condition within the 50% threshold. Officer Gromowski disagreed with the Applicant’s assertion that the CVSA standard considers the combined unit as one vehicle, not two.
ISSUE
7Should the impoundment of the Applicant’s commercial motor vehicle be confirmed or set aside?
LAW
8Section 50.3 of the 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
9The Registrar takes the position that the inspection found a critical defect and the vehicle was properly impounded. The Applicant argues that, as an interprovincial and international truck operator, it is not subject to the inspection criteria under the Act. It argues that the applicable criteria are set out in the CVSA standards. In its submission, these standards trump the Act. According to the Applicant, the CVSA permits an operator found to have brakes that are out of adjustment to fix them at the inspection station and to proceed without impoundment of the vehicle. These submissions were made as a series of unsupported sweeping statements alleging that Ontario is the only jurisdiction in North America to impound vehicles for brakes out of adjustment without permitting repair and that the Ontario scheme was contrary to federal law. To succeed, the Applicant’s submission would need to be supported by evidence of an applicable federal law, evidence that that law imports the provisions of the CVSA as its inspection and maintenance standard and evidence or authority that the federal legislative scheme supplants the right of Ontario to control travel on its highways. As stated above, the Applicant chose to lead no evidence.
10In opening submissions, in questioning and to an extent in closing, the Applicant alleged that there were provisions of the CVSA that covered this situation. It alleged it had difficulty recovering a copy of its CVSA manual but noted that each Provincial weigh station has a copy and is required to follow it. As a concession to the Applicant, the Registrar offered to produce a copy from the Putnam Weigh Station and did so over an extended lunch break. Rather than direct the Tribunal to those specific sections relating to defective brakes that had been apparently cited, the Applicant sought an adjournment to review the manual. Following submissions from both parties, the Tribunal denied the adjournment. Of particular weight for this denial were the Applicant’s earlier submissions concerning familiarity with the applicable CVSA sections and, indeed, submissions as to their specific content, a review of which could easily have been achieved in the extended lunch time allowed.
11The Tribunal notes that the Applicant is an Ontario corporation; the vehicle was plated in Ontario; and was operating in Ontario. The Applicant provided no reference to or evidence of a federal regulatory scheme that has displaced the Ontario regulatory scheme with respect to interprovincial and international trucking. Its submission in this regard appears to be limited to the proposition that because both the federal and provincial governments have endorsed the CVSA system, it displaces provincial law. In the absence of very clear authority for this proposition, the Tribunal finds no merit in this submission.
12The final ground argued by the Applicant is that the applicable calculation for determining if 50% of the brakes are defective is the combined tractor trailer rig with a total of ten brakes, not the tractor alone. To resolve this issue, the Tribunal must examine the purpose and intent of the commercial vehicle impoundment provisions as set out in s. 82.1 of the Act. The intent of the section is set out in subsection (36.1) as follows:
(36.1) The impoundment and suspension under this section are intended to promote compliance with the safety standards set out in and under this Act and to thereby safeguard the public and do not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.
13Given the aim of the provisions to safeguard the public, the provisions focus on commercial vehicle operators who have let their vehicles deteriorate below established standards. In the current case, the issue is brake wear, not a condition that arises from an event, but from a period of uncorrected deterioration and adjustment. The stated policy then is to interpret the section in a manner that promotes highway safety.
14On the question of whether the standard considers the combination tractor trailer as one vehicle, s. 82.1(6) provides clarity of the legislative intent:
(6) If the police officer or officer appointed for carrying out the provisions of this Act inspects the commercial motor vehicle and its trailer at a designated inspection station and finds that the commercial motor vehicle or trailer [emphasis added] has one or more critical defects, the vehicle shall be deemed to have been found to be in a dangerous or unsafe condition…
It is the clear wording of this section that the tractor and the trailer are to be treated as two separate vehicles for the purpose of determination of critical defects. The use of the disjunctive, “the commercial motor vehicle or trailer”, expresses that the intent of the Legislature is to treat the tractor unit as a separate entity from the trailer. Applying this section to the facts of the case, despite the fact that the combined tractor and trailer have 10 brakes, the tractor unit has 6 brakes, four of which were defective. Thus, more than 50% of the brakes were out of adjustment by more than the regulatory minimum such that there was a critical defect.
15The Tribunal finds that the vehicle had a critical defect at the time of the inspection on October 21, 2013.
DECISION
16Upon the application by the Applicant to appeal the impoundment dated October 21, 2013 of the vehicle, 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 DECISION OF THE TRIBUNAL that the impoundment of the vehicle be confirmed.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: December 9, 2013