Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-03-11

FILE:

8608/CVIS

CASE NAME:

8608 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

1596106 Ontario Inc.

Applicant

-and-

Registrar of Motor Vehicles (the "Registrar")

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant:

Don Eltom, Agent

For the Respondent:

Douglas Lee, Counsel

Heard in Windsor:

March 3, 2014

REASONS FOR DECISION AND ORDER

1This is an appeal to the Licence Appeal Tribunal by 1596106 Ontario Inc. (the “Applicant”) respecting an impoundment of a trailer, VIN 2M593161721081296 (the “trailer”), pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

PRELIMINARY MATTERS

2At the outset of the hearing, the Applicant brought a motion to extend time for filing the appeal. The Registrar did not oppose the motion. The Tribunal granted the motion and proceeded with the hearing.

FACTS

3The Tribunal heard from two witnesses – Officer Kyle Gray who inspected the trailer on the day in question and Jeremy Groen, the driver. The factual background is not complicated or in dispute. Mr. Groen took charge of the vehicle in Woodstock, Ontario on the morning of January 20, 2014. He conducted a pre-trip inspection and found no defects. He drove from Woodstock to Brantford where he did a delivery. He visually inspected the trailer before leaving Brantford. He then drove to Windsor and was on his way from Windsor back to Woodstock when he drove into the Windsor South Truck Inspection Station. Prior to leaving his Windsor pick-up area, he had again visually inspected the trailer and found no defects. While driving the vehicle to the inspection station approximately 10 minutes away, he got no warning lights or alarms and noticed nothing wrong.

4Officer Gray was on duty at the inspection station in a position he described as a triage position. As trucks pull into the station, they pull up to one of two preliminary inspection booths, described as similar to a customs inspection booth. The inspector then makes a preliminary determination whether to send the truck for a further inspection or not. As Mr. Groen stopped at the booth, Officer Gray heard air escaping from just behind the cab. He walked back to take a look and found one of the thermoplastic air hoses was severed. He explained that there are two air hoses connecting the air brake system to a trailer. One of the hoses is red and has continuous positive pressure. If it is detached or severed for any reason there will be an immediate air loss. The second line is blue and is only charged with air when the brakes are applied. This line might become detached or severed without triggering any air loss or warnings in the cab until brake pressure is applied sufficiently to deplete the air pressure to warning levels. It was the second line that had been severed. Officer Gray carried out an inspection of the trailer and, not surprisingly, found that none of the trailer brakes worked. He impounded the vehicle pursuant to s. 82.1 (6) & (7) of the Act.

5Officer Gray noted no other defects on the trailer and in his view it was well maintained. He did not notice if there were signs of wear or deterioration around the area where the hose had broken. He agreed with Mr. Groen that the temperature that day was around -25⁰ C. Mr. Groen was of the opinion that the cold temperature may have made the plastic brittle such that it broke under stain while he was making a right turn following his last stop. Officer Gray testified that there was no need to make sharp turns on the approach to the inspection station. He also stated that this was the only broken air line he saw that day.

ISSUE:

6Should the impoundment of the trailer be confirmed or set aside?

LAW:

7Section 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(6), (7) and (8) provide that:

If critical defect found

(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 has one or more critical defects, the vehicle shall be deemed to have been found to be in dangerous or unsafe condition under section 82, but instead of exercising the powers set out in section 82, the police officer or officer appointed for carrying out the provisions of this Act shall forthwith,

(a) seize the number plates of the vehicle that has the critical defect or defects and remove its vehicle inspection sticker or comparable device issued by another jurisdiction; and

(b) detain the vehicle that has the critical defect or defects.

Impoundment

(7) Once the load, if any, has been removed as may be required by subsection (15), (16), (17) or (18), the detained vehicle shall, at the cost and risk of the owner,

(a) be removed to an impound facility as directed by a police officer or officer appointed for carrying out the provisions of this Act; and

(b) be impounded from the time it was detained for the period described in subsection (8) or until ordered to be released by the Registrar under subsection (23) or (24) or under section 50.3.

Impound period

(8) A vehicle detained under subsection (6) shall be impounded as follows:

1. For 15 days, if the vehicle has not previously been impounded under this section within a prescribed period.

2. For 30 days, if the vehicle has previously been impounded once under this section within a prescribed period.

3. For 60 days, if the vehicle has previously been impounded two or more times under this section within a prescribed period.

APPLICATION OF THE LAW TO FACTS:

8The 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. On finding that more than 50% of the brakes were inoperative, Officer Gray was obliged by the legislation to impound the vehicle. That same legislation, in the view of the Registrar, obliges the Tribunal to confirm the impoundment. The only issue before the Tribunal in the current appeal is whether or not a critical defect was present at the time of the inspection. Critical defects in air brake systems are defined under s. 7 of O/Reg 512/97. The wording applicable to the trailer in this case is:

7. (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.

(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:

5. 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.

9The Applicant argues that it had done everything in its power to ensure that the air brakes functioned as expected. The driver conducted visual inspections of the air hoses prior to driving away from each stop. The difference between the two positions is that the Registrar argues the statutory scheme does not allow for a defence based on accidental equipment failure and the Applicant argues that it does.

10In 3235149 Canada Inc. o/a Real Transport 2013 CanLII 65432 (ON LAT), the Tribunal held that a truck lacking air service to the trailer did not have a critical defect. In that case, one of the clasps, called glad hands, which attached the air hose to the trailer, had vibrated loose. The driver pulled off the highway into a truck inspection station to reattach the hose. Just as he did so, the inspection station opened and he was subjected to an inspection. As with the current matter, the trailer brakes did not function and the trailer was impounded. The Tribunal set aside the impoundment on the grounds that there was, in fact, no defect with the vehicle. On page 4 of the decision, the Tribunal held that the preconditions for a brake test as set out in s. 7 of the regulations had not been met. The officers had not permitted the driver to reattach the glad hands with the result that there was no air pressure to half of the system. The Tribunal went on to say:

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 issue that arise out of normal truck operation and are immediately addressed in a safe manner by the operator.

11The present facts and the Real Transport case are hard to distinguish. In each case, there was a lack of air service to the trailer. There are two distinctions that can be noted. The first distinction was that there was no component failure in Real Transport. In the present case, a plastic air hose had broken through. Also in Real Transport, the driver recognized the condition and was taking remedial steps. It is possible to infer from this fact that it was the charged red hose that had become detached because otherwise there would be no air loss to alert the driver to the problem. In this case, the driver was unaware of the condition. The Tribunal does not place great weight on the fact that the driver failed to recognize the condition. Its major concern is the lack of warning that the air hose responsible for activating trailer brakes is detached. The detachment only becomes apparent, according to the evidence, when brakes are applied, that is, at a time when a driver needs all brakes to be working. This seems to be too late to warn of a potentially dangerous condition. The Tribunal cannot understand why some form of sensor confirming that both air hoses are attached is not mandatory.

12The second distinction causes the Tribunal more concern. The Applicant argues that the extreme cold may have made the air hose brittle such that it broke when stretched during a right turn. This raises the question of whether the air hoses were sufficient to the conditions in which the truck was operating. Trucks operate throughout North America during winter and summer and no evidence was led to suggest that such breakage is common in cold weather, whether the temperature is -40 on the Prairies in January or +30 in southern Ontario in the summer. Indeed, if cold weather caused such breakages in the normal course, there would be major efforts to design more robust systems. If the Applicant is aware of such problems in cold weather, what training did it give drivers to discover and correct the condition? In the absence of evidence regarding the Applicant’s maintenance of air hoses and steps to remedy what has been suggested is a common problem, the Tribunal must conclude that this particular failure must be laid at the Applicant’s door. The trailer had a critical defect at the time it was inspected.

DECISION:

13Upon the application by the Applicant to appeal the impoundment dated January 20, 2014 of a trailer, VIN 2M593161721081296, pursuant to Section 50.3 of the Highway Traffic Act, and having considered the evidence before the Tribunal, and the submissions of the Registrar and the Applicant;

IT IS THE DECISION OF THE TRIBUNAL that decision of the impoundment of the trailer be confirmed.