Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-06-24

FILE: 8373/CVIS

CASE NAME: 8373 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

DIRECT BORE INC. Appellant

-and-

Registrar of Motor Vehicles (the "Registrar") Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Marc D’Amours, Vice-Chair

APPEARANCES:

For the Appellant: Robert Riddell, Agent

For the Respondent: Ryan DeFaria, Counsel

Heard in Cornwall: May 20, 2014

REASONS FOR DECISION AND ORDER

This is an appeal to the Licence Appeal Tribunal by Direct Bore Inc. (the “Appellant”) respecting an Impoundment of a trailer, VIN 4U181AEX8V1X34201 (the “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 transportation enforcement officer, Justin Smit, stopped, for an inspection, a tandem truck-trailer on Highway 34, North of Lancaster, in the Township of South Glengarry. The officer directed the driver, Gordon Varcoe, to drive his vehicle to the Lancaster weight station to complete his inspection. At the station, the vehicle was weighed. Thereafter, the officer instructed the driver to park in the adjacent parking area to pursue his investigation.

At the Lancaster scale, officer Smit, assisted by Michelle Chaussé, a senior transportation enforcement officer performed the Level 2 inspection. This inspection required that the two officers put on their overalls and position themselves under the trailer.

The verification of the brake system requires that the driver apply the brakes and release them. Section 7(2) of Ontario Regulation 521/97 describes how this is done. The driver complied with the instructions received from the inspectors, applied the brakes and it was at this time that a loud air rush was heard. The manoeuvre effectively severed the air hose and rendered the trailer brake system inoperative. As a consequence, the inspector’s believed that this constituted a critical defect contrary to section 82(6) of the Act and the vehicle was impounded.

ISSUE:

Should the impoundment the Appellant’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..

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 order the Registrar to release the vehicle are,

(a) that the commercial motor vehicle or trailer that is impounded was stolen at the time the vehicle was detained under section 82.1;

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 the impoundment or order the Registrar to release the vehicle.

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 Applicant is of the view that at the commencement of the inspection the trailer’s brake system was operative and no critical defects were noticed. The brake system became inoperative only under the direction of the officers and their inspection procedure.

The facts of this matter are not in dispute. There is no credibility to assess as all witnesses testified to same events. In my view, there is only one issue to be determined. If a critical defect occurs during the inspection process, does this justify impoundment?

Officer Smit intercepted the tractor-trailer tandem on Highway 34 as it had just exited Highway 401. When the tandem stopped, he did not notice or hear leakage from the air brake system. He directed the driver to attend the Lancaster scale, some kilometres away. The vehicle was weighed, requiring it to stop on the scale balance. No air leaks were perceived. To complete the inspection, the tandem was parked adjacent to the scale. No air leaks were observed.

Officer Smit then directed the driver to turn his vehicle off and release the trailer brakes. He verified the lighting, the front tractor brakes and rims, the signal and brake lights. When he had the driver apply the trailer brakes, he heard a loud air leak from the glad hand area. He noticed that this service line was completely severed within the metal spring housing. This prompted him to conduct a full underbody inspection. Assisted by Officer Chaussé, it was determined the trailer brake system was completely inoperative.

As stated in Sunrise Equipment Auction Inc. v. Registrar of Motor Vehicles [2007] O.L.A.T.D. No. 278 and in 3235149 Canada Inc. o/a Real Transport v. Registrar of Motor Vehicles 2013 CanLII 65432, the purpose of this legislation is to safeguard the public from unsafe commercial vehicle to be operated on the highways.

This trailer’s air-brake system became inoperative while the inspection was conducted under the supervision and direction of the officer. This condition was sudden and unforeseen. Other than this condition, there was no other evidence of poor maintenance. This critical defect occurred only at the inspection station, and therefore, the driver cannot be faulted for operating an unsafe commercial vehicle on a highway. As indicated in 3235149 Canada Inc. o/a Real Transport v. Registrar of Motor Vehicles 2013 CanLII 65432:

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.

DECISION:

Upon the application by the Appellant to appeal the impoundment dated March 19, 2014 of a trailer, VIN 4U181AEX8V1X34201, 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

Marc D’Amours, Vice Chair

RELEASED: June 24, 2014