Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-09-11
FILE: 8984/CVIS
CASE NAME: 8984/CVIS 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
1219052 Ontario Ltd. o/a Churchill Leasing Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Alex McCauley, Member
APPEARANCES:
For the Appellant: Elizabeth Blouin, Agent
For the Respondent: Ryan Defaria, Counsel
Heard in Windsor: August 27, 2014
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal by 1219052 Ontario Ltd. o/a Churchill Leasing respecting an Impoundment of a commercial motor vehicle or trailer pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
On July 12, 2014, a tractor trailer was stopped for a routine inspection on Hwy. 401 in the town of Lakeshore Essex County. The trailer bears licence number H4234Z and its VIN is 1JJV532W27L092142.
The trailer in question was examined by Craig Newman a certified enforcement inspector with the Ministry of Transportation Ontario (MTO). He was assisted by fellow enforcement officer Michael Grieves. Both officers are certified Critical Inspection Officers and are qualified to conduct safety inspections on commercial motor vehicles and trailers.
In this particular case, when the brakes on the trailer were examined by both officers. they found that the brakes were a Clamp 30 regular stroke cam style with a maximum allowable pushrod travel of 2”. More than 50% of the brakes exceed the 2” allowable limit by ¼ “ or more thereby creating a critical defect as outlined in Sec. 7 (2) 4 of O. Reg. 512/97 under the Highway traffic Act (HTA). The vehicle was impounded for 15 days pursuant to section. 82.1 (7) and ( 8).
EVIDENCE
Officer Craig Newman has been an enforcement officer for 6 years. In addition to being a licenced mechanic he is certified by the MTO to conduct safety inspections on commercial motor vehicles.
On July 12, 2014, he conducted a safety inspection on a trailer, lic. # H4234Z, on Hwy 401. The driver was directed to apply air pressure to the brakes and apply the brakes.. The air pressure was increased to 98 psi. The travel of the push rods on the brakes was measured with Ministry approved metal tape measure. The travel of the push rod was marked with a soap stone marking and measured. The results were:
- 4th XL left side-21/2 inches
- 5th XL left side-11/2 inches
- 4th XL Right side-21/2 inches
- 5th XL Right side-23/8 inches
The tests were conducted on two occasions and the results corroborated by Michael Grieves, an MTO enforcement officer who has a current Critical Inspection Certificate qualifying him to conduct safety examinations on commercial motor vehicles.
Three of the trailer brakes in question exceeded the prescribed push rod travel limit of 2” by more than ¼”.
Impound procedures were carried out by he and Officer Grieves.
The Appellant chose not to call evidence.
ISSUE
Should the impoundment of the 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(6), (7) and (8) and (37) 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:
- For 15 days, if the vehicle has not previously been impounded under this section within a prescribed period.
- For 30 days, if the vehicle has previously been impounded once under this section within a prescribed period.
- For 60 days, if the vehicle has previously been impounded two or more times under this section within a prescribed period.
(37) The Lieutenant Governor in Counsel may make regulations,
(a) prescribing what constitutes a critical defect…
APPLICATION OF THE LAW TO FACTS
The Appellant, in submissions, stated that the company had a stellar safety record. In addition, the brakes on this particular unit had been upgraded not long before this incident.
The Tribunal pointed out to the Appellant that the Tribunal’s jurisdiction is limited by statute, specifically section 50.3 (3) of the Act. The only evidence before the Tribunal is that of Officer Newman. He gave clear and concise evidence as to the critical defect found at the time of the inspection. There is no evidence from the Appellant regarding its maintenance of the equipment in issue at the material time that might, possibly, have led the Tribunal to conclude that there was not a critical defect at the time the trailer was inspected.
DECISION:
Upon the application by the Appellant to appeal the impoundment dated July 12, 2014 of a commercial trailer VIN 1JJV532W27L092142, pursuant to Section 50.3 of the Highway Traffic Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Appellant;
IT IS THE DECISION OF THE TRIBUNAL that the impoundment be confirmed.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Presiding Member
RELEASED: September 11, 2014