SMS Logistic Inc. v. Registrar of Motor Vehicles, 2014 CanLII 7972

Licence Appeal Tribunal

DATE: 2014-02-11

FILE: 8429/CVIS

CASE NAME: 8429 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

Nexcap Financial Corporation/Element Financial Corp SMS Logistic 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: Anthony Debly, Counsel

For the Respondent: Ryan De Faria, Counsel

Heard in Windsor: February 5, 2014

REASONS FOR DECISION AND ORDER

1This is an appeal to the Licence Appeal Tribunal by SMS Logistic Inc. (the “Applicant”) respecting an impoundment of a trailer, VIN 5V8VA53289M904209 (the “trailer”), pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The Tribunal notes that the Applicant’s appeal documents identify both the lessor of the trailer, Nexcap Financial Corporation/Element Financial Corp and SMS Logistic Inc. (“SMS”), the operator. The style in the Tribunal’s files omits reference to SMS. SMS is the true applicant and the only party to appear before the Tribunal and the style in these reasons has been amended to reflect this fact. Throughout these reasons the Tribunal will use the singular, Applicant, to refer to SMS.

PRELIMINARY MATTERS:

2At the outset of the hearing, the Registrar brought a motion for a declaration that SMS did not have standing to advance the appeal. It was the position of the Registrar that the Applicant was not the owner of the trailer as that term is defined in the Act and that only the owner has standing. The definition of owner in s. 50.3 of the Act is set out in s. 82.1 (1):

“owner” means the person whose name appears on the certificate of registration for the vehicle, and, where the certificate of registration for the vehicle consists of a vehicle portion and plate portion, means the person whose name appears on the vehicle portion;

The certificate of registration identifies two entities, the lessor, and the Applicant. In light of the definition of “owner” in the Act, given the fact that the Applicant’s name appears on the certificate of registration, the Tribunal finds that the Applicant is an owner under the Act and, thus, has standing to bring this appeal.

FACTS:

3The Applicant takes no issue with the fact that at the time the tractor trailer unit was stopped and inspected on Highway 401 just east of Windsor, Ontario on the night of October 22/23, 2013, three of the four trailer brakes had push rod movement in excess of the allowable limit and that the inspecting officer, Officer Rounding, correctly determined that the trailer had a critical defect. It is the Applicants position that Officer Rounding’s actions or failures to act following the inspection had the effect of rendering the impoundment void. This argument is advanced on two grounds: firstly, that Officer Rounding did not follow the letter of s.82.1 (6) of the Act when initially detaining the vehicle; and secondly, that by ordering the Applicant to repair the vehicle prior to having it moved to the impoundment facility, Officer Rounding exceeded his statutory authority.

4Officer Rounding testified. He described the inspection on the night in question in detail. He had been on duty at the Windsor Scale and made an initial observation of the trailer that led him to believe that the brakes may have had excessive push rod travel. He asked the driver to pull the unit over for a more in depth inspection. An initial inspection using chalk marks to measure the travel gave further substance to his belief so he called a colleague, Officer McKeon, to assist him in a full inspection. Officer Rounding described the inspection protocol used. The Applicant takes no issue with the witness’s findings or inspection protocol. Officer Rounding then described how he advised the driver of the vehicle, Balraj Singh Khehra, that he had found a critical defect on the trailer, that he would be detaining the trailer and that Mr. Khehra should take steps to have the load removed from the trailer, after which it would then be impounded. He advised Mr. Khehra that the Applicant would need to take steps to repair the brakes prior to the trailer’s removal to the impoundment facility.

5On cross-examination, Mr. Debley asked Officer Rounding to review the impoundment provisions of the Act, in particular, s. 82.1 (6). The officer read the section into the record and stopped at each statutory step and confirmed that he had complied with it. He stated:

If the police officer or officer appointed for carrying out the provisions of this Act, which I am, inspects the commercial motor vehicle and its trailer at a designated inspection station, which ours is, and finds that the commercial motor vehicle or trailer has one or more critical defects, which I did, 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, I shall forthwith, seize the number plates of the vehicle, which I did, and remove its vehicle inspection sticker, which again I did and detain the vehicle that has the critical defects, which then I did. {Emphasis added}

6The Officer also explained his rationale for ordering the trailer brakes to be repaired. He stated that the brakes had to be repaired on site because the towing company could not tow the trailer down the road with the brakes in the same condition. He later acknowledged that the towing company might put the trailer on a flatbed truck to move it. Officer Rounding advised that he had no say on the manner in which the trailer was moved to the impoundment facility, but, as a general rule, the towing company would need the brakes to be in “drivable” condition prior to moving the trailer.

ISSUE:

7Should the impoundment of the trailer be confirmed or set aside?

LAW:

8Section 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:

9The 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 initially argued that there was no evidence that Officer Rounding had removed the inspection sticker from the trailer. Officer Rounding testified during cross-examination that he had removed the sticker. The Tribunal does not fault Mr. Debley for taking the position that he did because the officer’s reference to removing the inspection sticker was fleeting and the Tribunal did not catch the reference until listening to the evidence later. In light of this evidence, it is clear that Officer Rounding complied with the statutory requirements set out in s. 82.1 (6) when detaining the vehicle.

10The Applicant’s second submission, the fact that Officer Rounding may have exceeded his jurisdiction when he ordered repairs to be carried out, is not properly before this Tribunal. The Act sets out those factors that the Tribunal may consider in deciding to release an impounded vehicle. Only if the Tribunal finds that the vehicle was stolen or did not have a critical defect at the time of inspection can it order the vehicle released. Questions of whether an officer may have exceeded his authority and any remedy that may flow therefrom are more properly dealt with by way of judicial review. In the current case, the evidence was not contradicted that the trailer had a critical defect at the time of inspection. Given the Tribunal’s limited statutory jurisdiction, its enquiry must end at that point. Other issues are for other courts or tribunals without such statutory limits.

ORDER

11Upon the application by the Applicant to appeal the impoundment dated October 23, 2013 of a trailer, VIN 5V8VA53289M904209, 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 the impoundment of the trailer be confirmed.