Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-06-03
FILE:
9302/CVOR
CASE NAME:
9302/CVOR 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 17 of the Highway Traffic Act – to Refuse to issue a Commercial Vehicle Operator’s Registration Certificate.
United Freight Trucking LLC
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Ryszard Wojtuniecki, Agent
For the Respondent:
Patrick Moore, Counsel
Heard in Windsor:
May 11, 2015
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 August 12, 2014 pursuant to section 17 to Refuse to issue a Commercial Vehicle Operator’s Registration Certificate.
BACKGROUND
The Appellant has applied for a Commercial Vehicle Operator’s Registration (CVOR). The principal of the Appellant, Ryszard ( Richard) Wojtuniecki, is also the principal of i two other trucking companies GE Fleet Services LLC (CVOR 166-337-143) and GE Fleet LLC (CVOR 177-430-841). The basis for the Registrar’s refusal is the allegation that the Appellant is related to these two companies that are of concern to the Registrar. The safety records of these two companies both in Canada and the U.S.A. are both poor.
A Cancellation and Seizure Order against these two companies was issued by the Registrar on December 23, 2014. A show cause meeting was held on February 18, 2015 and new information was received by the Registrar. As a result, on, March 6, 2015, the Cancellation and Seizure order was set aside and performance conditions were attached to the CVOR certificates. These are to remain in effect for one year. If the companies fail to abide by the conditions or their safety record continues to deteriorate, they will be subject to the Cancellation and Seizure Order (EX. # 4).
The Registrar is of the opinion that Mr. Ryszard (Richard) Wojtuniecki who controls the aforementioned companies will not operate the Appellant safely based on the safety records of those companies.
THE EVIDENCE
The Registrar called one witness, David Mercanti, who is a Carrier Rating Safety Administrator with the Ministry of Transportation. His role is to review carrier safety and the operator safety records and impose sanctions or other forms of intervention where and if necessary. He has reviewed the records of the related companies and the Appellant.
The CVOR system is designed to track the on-road performance of Ontario based carriers and identify those carriers that may present a safety risk. The CVOR system tracks three parameters that have been found to be indicia of safe operation, collisions, convictions and inspections by an officer of the Ministry of Transportation (MTO). A CVOR holder notifies the MTO on registration and thereafter, at least, annually of its fleet size and kilometric travel in Ontario. Based on these two factors, it is assigned a maximum number of points, referred to as its Violation Rate (VR).
The Registrar tracks each CVOR holder’s performance by measuring its actual points against the assigned maximum and expressing it as a percentage of the VR. To determine a carrier’s VR, each parameter is tracked separately and then weighted to give an overall number. The tracking system contemplates intervention by the Registrar at certain predetermined levels. At 35% VR, a carrier receives a warning letter advising it that its record is deteriorating and advising it to make adjustments to improve. At 50% VR, the Registrar may initiate a facility audit. A carrier may be called for an interview at 80% and the Registrar will consider sanctions when a carrier reaches 100%. Sanctions may range from suspension to revocation. 95% of carriers operate under 35% VR, only 0.1% are over 80% at any given time and 0.2% exceed 100%. In other words, about 100 carriers in Ontario out of 50,000 exceed 100%.
Mr. Mercanti referred to documentation as outlined in the Registrar’s Book of Documents (Ex. 3) in which Mr. Wojtuniecki is identified as the sole corporate officer of all the named companies.
GE Fleet Services LLC first received its CVOR on November 13, 2009. A safety record review in August 2014 revealed the company had an overall violation rate of 68.4%, and an overall out of service rate of 42.9% which exceeded the national average in the U.S. for out of service rates. At the time, the company had no vehicles registered in Ontario.
GE Fleet LLC, as of August 2014, was shown as inactive according to Safer Web data, a U.S. safety tracking system. The previous 24 months prior to June 8, 2014 showed the company having 50% out of service rating. The national average in the U.S. was 20% (Tab 3 Ex. 3).
The safety rating within the carrier records for both companies GE Fleet Services LLC and GE Fleet LLC are rated ‘Conditional’.
The performance data on GE Fleet Services LLC from November. 24, 2012 to November, 23, 2014 shows an overall safety violation rate of 121.65%. (Inspection data tab. 9 ex. #3)
This rating places the company in the .5% range. 95.7% of CVOR holders are in the 25-35% violation rate (Tab 19 Ex. # 3). The company has, therefore, an extremely poor safety rating.
The safety record for GE Fleet LLC as reported by Safer Web Snapshot in the U.S. was a 50% out of service rate with the national average being 20.72% (Tab 15 Ex. #3).
Rossini Bera gave evidence on behalf of the Appellant. He has undertaken the training and fleet management responsibility for the Appellant. He stated that GE Fleet LLC has not operated in one year.
He advised that there is a safety management program in place. Further, all drivers receive hands on training before going out on the road. He will undertake the safety management of United Freight Trucking LLC if they receive the CVOR.
He stated that Ryszard Wojtuniecki plans to retire and turn the business over to his two sons.
The equipment now being used by the trucking companies is new. There is also a requirement for transport contractors who lease out their services must have up to date equipment if they are working for the Applellant companies.
In cross examination, he admitted that a conditional rating in the U.S is not good. He acknowledged, as well, that the companies’ safety record has actually gotten worse in 2015. At the time, he was their safety director.
Mr. Bera stated that he would take on the safety management of United Freight if it were to receive a CVOR.
Ryszard Wojtuniecki stated in his testimony that he wishes to make changes and pass the business on to his sons.
Jacob Wojtuniecki, Ryszard’s son, who is set to inherit the companies along with his twin brother, gave evidence. The Tribunal was struck by how little he knew about the safety issues involved in the business of trucking. He was clearly at a loss to explain his understanding of the basic fundamentals of the ‘out of service ratings’ and could offer no concrete plans for how the companies might improve their overall safety performance. Instead, he was seemingly comfortable in abdicating all of that to Mr. Bera the safety manager.
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
It is clear that the safety records of the companies belonging to Ryszard Wojtuniecki, as principal are very poor. It is undisputed that these companies and the Appellant are related, both through ownership and their common safety manager. The companies are now currently subject to performance conditions set by the Registrar, when the proposed cancellation and seizure orders were set aside. These conditions are in place for one year.
Rossinni Bera, the safety manager for the companies, has apparently a good plan, but implementation has been slow. He admitted in cross-examination that in fact safety ratings have not improved in 2015.
Mr. Wojtuniecki plans to pass the business to his sons. Beyond this fact and speaking to the responsibilities of Mr. Bera, Mr. Wojtuniecki offered little evidence to the Tribunal.
The Tribunal is concerned about Mr.Wojtuniecki’s succession planning. To operate the trucking business safely there has to be a comprehensive understanding of safety procedures and requirements. All of this seems lost on the junior Mr. Wojtuniecki. He has about 6 years’ experience with the related companies in a variety of positions. In cross examination, he admitted he did not know much about the safety numbers or the out of service numbers and what they mean. He abdicates that responsibility to Rossinni Bera, the safety manager. There appears to be a leadership link missing.
Given the conditional safety ratings of the related companies and the concerns about the potential for improvement on their safety records, based upon the evidence outlined above, the Tribunal concludes that at this time it would be a mistake to grant United Freight Trucking LLC a CVOR.
ORDER
Pursuant to section 50(2) of the Act, the Tribunal orders the Registrar of Motor Vehicles to carry out its Notice of Refusal to issue a CVOR certificate to United Freight Trucking LLC, dated August 12, 2014.
LICENCE APPEAL TRIBUNAL
Alex McCauley, Member
Released on: June 3, 2015