Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-10-05
FILE:
8881/CVOR
CASE NAME:
8881 v. Registrar of Motor Vehicles
Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Order of the Registrar of Motor Vehicles Pursuant to Section 47(1) - to cancel the Commercial Vehicle Operators’ Registration Certificates and to seize the Plate Portion of all Permits Issued
Buk Logistics Corp.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant:
Uri Khardas, Agent
For the Respondent:
Patrick Moore, Counsel
Heard in Toronto
October 9 and 10, 2014
DECISION AND ORDER
The Appellant appeals to this Tribunal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an order of the Registrar of Motor Vehicles (the “Registrar”) issued on May 22, 2014, pursuant to section 47 and 47.1 to cancel a Commercial Vehicle Operators Registration (“CVOR”) certificate and to seize the plate portion of any permits issued.
BACKGROUND
On April 2, 2014, a Notice of Cancellation and Seizure was issued by the Deputy Registrar of Motor Vehicles proposing the cancellation of CVOR certificate 153-672-128 and the seizure of plate portions of permits and number plates for all commercial motor vehicles and trailers registered in the name of the Appellant. If issued by a jurisdiction other than the province of Ontario, then the permits and the number plates would be seized. A meeting was convened on April 29, 2014, where the Appellant was given the opportunity to make submissions to show cause why the Cancellation and Seizure order should not be issued. Following the meeting of April 29, 2014, after considering the submissions received, the Deputy Registrar remained concerned for highway safety and ordered that, as of June 6, 2014, CVOR certificate 153-672-128 and the plate portion of permits for all commercial motor vehicles and trailers issued in the name of the Appellant be suspended for a period of 10-days. That order was stayed by virtue of the Appellant filing of this appeal on June 5, 2014.
THE EVIDENCE
Sherry Atallah, Carrier Safety Rating Administrator with the Ministry of Transportation was affirmed and testified that the CVOR system was begun in 1989 and in 2007 some changes were made to make the system more predictive than reactive. Her evidence was that the CVOR system is a good predictor of a carrier’s potential for collisions based on previous convictions. She testified that the system tracks the performance of trucking companies; a CVOR is issued for each company and, as events occur, points are assigned and certain interventions are prescribed as points accumulate.
Ms. Atallah testified that the goal of the CVOR system, as stated in the Ontario Government’s Carrier Safety Rating and CVOR System Public Guidelines (the “Guidelines”), entered as exhibit 3, tab 17 “…is to improve road safety for all users of Ontario highways by having an effective monitoring and intervention system for all carriers. Poor performance may result in the loss of privileges to operate commercial motor vehicles.”
Ms. Atallah testified that the Guidelines define a CVOR operator or carrier as the person who is responsible for the operation of a commercial motor vehicle and that the operator or carrier is responsible for the conduct of the driver of the vehicle while operating the vehicle, the mechanical safety condition of the vehicle as well as the shipping of goods or passengers in the vehicle. A CVOR holder has a number of responsibilities. As provided at page 8 of the Guidelines:
Carriers are responsible for all the drivers and vehicles in their operation. For example, these responsibilities include:
Employing qualified and licensed drivers;
Monitoring the safety performance of drivers, including hours of service;
Resolving driver safety issues when they are identified;
Keeping vehicles in good, safe condition at all times;
Ensuring load security;
Ensuring daily and annual/semi-annual inspections are completed;
Keeping records on file (e.g. vehicle repairs, kilometers travelled per year, annual inspection reports, etc.); and
Notifying the Ministry of changes such as name, address, telephone numbers, fleet data, kilometric travel and changes in corporate officers, etc.
Ms. Atallah testified that a CVOR abstract is available on-line and provides information on a carrier’s safety performance. She stated the Ministry recommends carriers obtain copies of their abstracts every six months, at a minimum. She stated that if a carrier obtains an abstract and finds errors on it, they may contact the relevant analyst and request any necessary corrections or changes be made. The police report collisions to the Ministry and those collisions are then added to the abstract. Points are assigned according to the severity of the collision pursuant to a Collision Weighting Table displayed at page 15 of the Guidelines which categorizes collisions as “no impropriety” or “impropriety”. A collision being weighted in the latter category indicates that the driver was at fault and the police will have reported that. Convictions are added onto a record when they are registered by the courts. Appendix E to the Guidelines is a Conviction Code Table and Ms. Atallah testified that all points assigned to a collision are assigned pursuant to this table and that this table applies to all carriers in Ontario.
Ms. Atallah stated that inspections are also added to a carrier’s record when an officer completes an inspection report.
Ms. Atallah explained that the CVOR system evaluates a carrier’s performance based on the various events on its CVOR record. These events include collisions, convictions, inspections and audits. Appendix D of the Guideline is a Table of Threshold Values. The points which a carrier accumulates in each category are compared to the threshold values to determine an overall violation rate. She explained that violation rates are assigned by weighting collisions at 40%, convictions at 40% and inspections at 20%, over a 24-month period in order to determine an overall violation rate. The overall violation rate determines whether or not intervention and/or sanctions are warranted. Ms. Atallah also testified that mileage is a relevant variable in determining a carrier’s violation rate and that mileage is reported by the carrier annually when applying for CVOR renewal.
Ms. Atallah’s evidence was that most carriers fall well below a conviction rate of 15% and if a carrier’s conviction rate is higher than 35%, intervention is triggered and a warning letter is issued. The expectation is that the company receiving a warning letter will take serious action to improve their performance and, she stated, a warning letter is often sufficiently effective that the carrier does not capture the Ministry’s attention again. If a conviction rate is over 100%, sanctions are triggered which might result in revocation of the CVOR and seizure of plates and permits.
The witness testified that she received the present case to review for a potential Notice of Suspension. She identified exhibit 3, tab 2 as the Corporate Profile Report for the Appellant company and exhibit 3, tab 1 as the Safety Record Review which she prepared on the Appellant company in April 2014. The Safety Record Review indicated an overall violation rate of 113.8%. The Safety Record Review shows the chronology of events relating to the Appellant’s safety record since the original CVOR certificate was issued to this carrier on November 9, 2005. It includes a warning letter issued on June 28, 2006, another warning letter issued on July 15, 2009, a conditional safety rating assigned on December 9, 2011, an interview conducted on June 19, 2012, and another warning letter issued on August 7, 2013. The Safety Record Review also indicated that there were 50 inspections conducted over 2-years on the Appellant’s vehicles and 22 of them resulted in high out-of-service rates.
Ms. Atallah testified that, a Notice of Cancellation and Seizure, dated April 3, 2014, was issued to the Appellant who was invited to attend a Show Cause meeting on April 23, 2014. She elaborated that meeting was actually held on April 29, 2014, and that the purpose of such a meeting is to give the carrier the opportunity to explain why the Registrar should not carry out the proposal. Ms. Atallah stated the Appellant maintained that two collisions showing on the company’s record should not have been there. One had apparently been removed and the other resulted in no points being assigned. Ms. Atallah testified that revisions were made based on follow-up information sent by the Appellant.
Ms. Atallah identified an e-mail, entered as exhibit 4 in this hearing, forwarded to her from the Appellant on May 9, 2014, concerning a discrepancy with regard to mileage for the carrier from April 1, 2013, to March 1, 2014. As a result of this information, new mileage numbers, as provided by the carrier, were entered into the system even though those numbers were much lower than what the Appellant had originally reported. The result was that the overall violation rate for the Appellant was 118.12% as evidenced by the performance report entered as exhibit 5 in this hearing. Ms. Atallah’s evidence is that the reduction in the reported mileage resulted in the higher safety violation rate.
Finally, Ms. Atallah testified that on October 6, 2014, she conducted a new search on the Appellant and found the safety violation rate was down to 84.6% for the period of September 7, 2012, to September 6, 2014. She acknowledged that this was much lower than it had been but stated that it did not change the Ministry’s position with regard to the sanction order. Although the rate is lower, it is still high and not satisfactory. She elaborated that less than 1% of carriers reach the rate of 85% and that when they do, that triggers an interview to discuss their unsatisfactory performance.
In cross-examination, Ms. Atallah acknowledged that the Appellant has passed audits and stated that based on the audit results, it would appear that the Appellant’s books are in order. She elaborated however that it does not necessarily follow that the company is operating safely. While policies and procedures might be in place, it does not guarantee that the drivers are following them. Further, she stated that the evidence of some of the Appellant’s drivers falsifying their logs would indicate that might be the case. Also in cross-examination, Ms. Atallah conceded that it is possible that if a driver fails to attend court to answer a charge and is convicted, points would be assigned to the company for the driver’s conviction.
Uri Khardas, owner of the Appellant company was affirmed and testified that he and his company takes safety very seriously. He stated he has been in trucking all of his life and received his Class A license at the age of 18-years.
Mr. Khardas stated his company has had two audits in the past few years and they passed them both. They do their best to train their drivers and make them aware of the requirements. He elaborated that everyone they hire gets a handbook which explains how to do an inspection, an inspection report, how to secure a load, etc. The handbook, which Mr. Khardas says he created, was entered as exhibit 6 in this hearing. Mr. Khardas said he speaks to drivers daily and has training sessions with them every three months. His company has a safety plan in effect and that their vehicles are inspected every 90 days as well as annually.
Mr. Khardas testified that his company has a 4-point system in place whereby if a driver does not follow company policy, he/she will get 3 warnings and then will be terminated for a fourth infraction. In extreme situations, he will terminate an employee on the spot.
Mr. Khardas elaborated that his company does everything in its power to ensure drivers do everything properly but that he “cannot be in every cab of every truck”. He further stated that when drivers are charged and convicted, it affects his company’s record but they cannot do anything; they cannot defend themselves, they can only dismiss the problem drivers but that does nothing to address the problem driver. Rather, the driver can obtain employment elsewhere and still be on the roads as a threat to public safety. He referred the Tribunal to exhibit 3, tab 15, page 209, which contains a list of those drivers he has terminated because of safety violations. Mr. Khardas stated that those drivers are still licensed; their licenses were not suspended or revoked and they are still on the roads. Meanwhile, he says, he is being punished and his license is in jeopardy.
Mr. Khardas also testified that his company travels into the United States about 90 trips per month and, therefore, goes through a large number of inspections. He opined that if a driver doesn’t do what is expected of him, the employer has little control. Again he stated he “cannot be in every cab”.
In cross-examination, Mr. Khardas confirmed his evidence that the manual or handbook, entered as exhibit 6 in this hearing, was prepared by him. He elaborated that he went on-line and pulled the information together after the interview in 2012. He stated that each driver has a copy of this document and that when a driver is hired, the document is explained to them and they have to sign off indicating they are aware of the document.
In cross-examination, Mr. Khardas was taken through the minutes from the Show Cause meeting held on April 29, 2014, and confirmed the submissions made at that meeting included that his representative at the time would complete a drivers’ manual for the company but, he testified, it has not yet been printed and is not in use. In reviewing the exhibit 6 manual under cross-examination, Mr. Khardas conceded that it refers to other trucking companies and that he had cobbled together the manual his company uses by borrowing excerpts from the manuals of other companies. When asked it he thought it might be confusing to his drivers who might think provisions which explicitly refer to other companies by name do not apply to them as employees of the Appellant company, he replied that he is accessible at all times and his drivers can ask him if they have questions. Further, when it was pointed out to him that the pictures in the exhibit 6 document are not clear, that nobody can really see what is being portrayed in them, Mr. Khardas stated that it doesn’t matter, that the writing explains what the pictures portray. He stated this manual tells drivers how to keep a log book and how to secure a load and it doesn’t matter where they work, the process is the same.
Mr. Khardas was reminded that, at the Show Cause meeting on April 29, 2014, his former representative said she would be recommending the company retain the services of a consultant for future training and driver discipline. While Mr. Khardas confirmed that had been the plan, it has not happened yet; the individual that his representative recommended was not available and that has yet to be done. However, he stated his company has followed through with quarterly safety meetings every three months and the numbers indicate to him that their initiatives are working.
THE LAW
The statutory authority for the actions of the Registrar and the jurisdiction of the Tribunal are set out in sections 47, 47.1 and 50 of the Highway Traffic Act (the Act), as follows:
Suspension and cancellation of licence, etc., general
- (1) Subject to section 47.1, the Registrar may suspend or cancel,
(a) the plate portion of a permit as defined in Part II;
… or
(c) a CVOR certificate,
on the grounds of, …
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety;
Power to seize number plates
(8.1) If the plate portion of a permit is suspended or cancelled under clause (1) (a), the Registrar may order that the plate portion of the permit or the number plates issued in connection with the plate portion of the permit be seized and any police officer or officer appointed for carrying out this Act may seize the plate portion of the permit and the number plates and deliver them to the Ministry.
Definitions, “commercial motor vehicle” etc.
(9) For the purposes of this section and section 47.1,
“commercial motor vehicle,” “operator” and “safety record” have the same meanings as in subsection 16 (1)..
Notice of proposed action, s. 47
47.1 (1) Before taking any action under clause 47 (1) (a) or (c) or subsection 47 (2), the Registrar shall notify the person whose plate portion of a permit or CVOR certificate is to be affected of his or her proposed action.
- (1) Every person aggrieved by a decision of the Minister made under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
Powers of Tribunal
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or Registrar.
ANALYSIS
The evidence establishes that the CVOR system automatically identifies carriers for review when poor safety performance is identified by the carrier’s overall safety violation rate. The practice is that the Ministry typically sends warning letters when the safety violation rate reaches 35%, a request for an audit is triggered at 50%, an interview is requested at 85% and the Ministry looks to sanction a company when their safety violation rate reaches 100% or higher. In the period from March 2012, to March 2013, the Appellant’s safety violation rate was over 114%. In responding to information provided by the company, adjustments were made which had both good, and less favorable, results. Specifically, as a result of information provided by the Appellant, the record of violations was reduced, however; the reported lower mileage resulted in a higher violation rate.
The evidence establishes that at the Show Cause meeting held on April 29, 2014, there were indications that certain things would be done which have not been completed. The new employee manual has not been created and the consultant for training and driver discipline has not been retained. Completion of these items would have shown an acknowledgment of the concerns held by the Ministry as well as a willingness to improve a system which does not seem to be working effectively or efficiently.
The existing manual was essentially cut and pasted from other employer manuals, accessed on the internet by the Appellant. It refers to a minimum of three other trucking companies and must surely be confusing to many who refer to it. If the Appellant had at least reviewed it and removed reference to other employers it might indicate some minimal intent to address the issues this carrier has to deal with. Following through with the new manual promised at the Show Cause meeting would have gone further. In addition, Mr. Khardas identifies his drivers as the problem and, if that is the case, one might expect the Appellant to have done more than it has to create a discipline policy which, despite the promise to address this at the Show Cause meeting, has not been done. Further, the Safety Record Review established that all possible interventions have been used with the Appellant. The only remedial measure that has not yet been used is that of a suspension.
The totality of the evidence overwhelmingly establishes that the Appellant has failed to take responsibility for a number of items it is responsible for pursuant to provincial Guidelines, including, but not necessarily limited to, monitoring the safety performance of drivers including hours of service, resolving driver safety issues when they are identified, keeping vehicles in good, safe condition at all times and ensuring load security. The Appellant does appear to appreciate its part and responsibility in ensuring the mechanical safety of its vehicles or the acceptable conduct of its drivers. Rather, the Appellant takes the position that it cannot be in every truck and blames the drivers for the problems it must answer for. It does not seem to appreciate that, as a carrier, it is responsible for the conduct of its drivers. Instead, the testimony of Mr. Khardas implies that the system should be punishing the drivers and not holding the carrier responsible at all which is inconsistent with the requirements of the Guidelines.
It is significant that the proposal of a 10-day suspension was based on the changes the Appellant said it would make at the Show Cause meeting. Given that the company has not seen fit to follow through on the suggestions made at the Show Cause meeting on April 29, 2014, and also that it appears unwilling to take any responsibility for its safety violation record, the proposed penalty seems almost lenient.
ORDER
Having considered the evidence and the submissions of the parties, the Tribunal concludes that a 10-day suspension is appropriate in this case and, pursuant to the authority granted to this Tribunal pursuant to section 50 of the Act, it is herewith ordered that the Registrar carry out the terms of the Suspension and Seizure Order dated May 22, 2014. The suspension shall commence on a date to be determined by the Registrar.
LICENCE APPEAL TRIBUNAL
Patricia L. Cassidy, Vice-Chair
Released: November 5, 2014