Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE :
2015-06-15
FILE:
9331/CVOR
CASE NAME:
9331 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
2078020 Ontario Inc. o/a Hind Transport
Appellant
-and-
Registrar, Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Richard Macklin, Vice-Chair
APPEARANCES:
For the Appellants:
Mark Reynolds, Agent
For the Respondent:
Ryan Defaria, Counsel
Heard in Toronto:
April 22, 2015 and May 20, 2015
REASONS FOR DECISION AND ORDER
The Deputy Registrar of Motor Vehicles, by order dated January 8, 2015, has ordered the cancellation of Commercial Vehicle Operator's Registration (CVOR) certificates 154-655-455, 149-596-862 and 144-371-727 issued to, respectively, 2078020 Ontario Inc., 1628497 Ontario Inc. and 6050883 Canada Inc. By the same order, the plate portion of permits related to these CVORs were ordered to be seized.
By Notice of Appeal dated January 14, 2015, 2078020 Ontario Inc. ("2078020" or "the Operator" or "the Appellant") appeals that Order.
The other CVOR holders are inactive and hence, the only safety record in issue on this appeal was that of 2078020.
The Appellant has already appeared before the Tribunal. On May 5, 2013, following a hearing presided over by Vice-Chair Flude, the Vice-Chair ordered a 10-day suspension of CVOR certificate 154-655-455 and the following performance conditions (the "Performance Conditions"):
The CVOR Certificates, plate portions of permits and numbered plates issued to 2078020 Ontario Inc. will be subject to cancellation and seizure proceedings in the event of:
a) Your overall safety violation rate exceeding 50% using a performance analysis period commencing on the day following termination of the 10 day suspension, for a one year period.
b) An overall out of service percentage exceeding 35% using a performance analysis period commencing on the day following termination of the 10 day suspension, for a one year period. (see 7881 v. Registrar of Motor Vehicles, at p. 8).
The Registrar alleges that the Appellant has failed to meet the Performance Conditions ordered by the Tribunal. Thus, at the hearing, the issues were as follows:
Has the Appellant met the performance conditions ordered by the Tribunal; and
If not, is there a basis to order a penalty more lenient than the cancellation and seizure sought by the Registrar.
Fresh Evidence Motion
Following the hearing, by Notice of Motion dated May 12, 2015, the Appellant moved to admit fresh evidence. The proposed fresh evidence was an e-mail exchange between counsel for the Appellant in a related matter, Carole McAfee Wallace, and Ms. Carol Whitman, who is an Executive Assistant at the Infrastructure Health & Safety Association ("IHSA").
By way of background, as will be noted below, this appeal hearing did include evidence regarding a fatal collision, that occurred on October 5, 2013. That collision involved a truck in the Appellant's fleet. As a result of the collision, the Appellant was cited for 6 points against his CVOR safety rating. The 6 points caused the safety rating to reach a level that was in clear violation of the Order of Vice-Chair Flude. However, the Appellant appealed the 6 point assessment to the IHSA. The IHSA, according to an exhibit filed on the motion, has authority to "determine whether an [appealed] accident was preventable or non-preventable" and, if the accident is deemed non-preventable, to have CVOR points "removed".
In terms of the fresh evidence, for ease of reference, the email exchange is replicated in full, and was as follows:
From: Carol Whitman
Sent: April-24-15 3:06 PM
To: Carole McAfee Wallace
Subject: RE: Hind Transport appeal case
IHSA is an independent, impartial 3rd party that reviews accident files for the purpose of determining preventability. In this particular situation, the Ministry of Transportation, who provides IHSA with direction for this process, gave us direction not to review the file. Since we are required to follow the direction the MTO provides, I would ask you to direct your questions to the MTO.
Thank you,
Carol Whitman
Executive Assistant
From: Carole McAfee Wallace
Sent: April-22-15 1:29 PM
To: Carol Whitman
Cc: Marilyn Hsleh, hindtrans
Subject: RE: Hind Transport appeal case
Dear Ms. Whitman:
Thank you for your email. Before filing our appeal I reviewed the Appeal Procedure and accompanying information on your website, and nowhere in that information was there a statement that an appeal was not available to a carrier who was under sanction. Can you please let me know where I can find this requirement?
In addition, it is my understanding that at the time this appeal was filed there was no sanction. MTO had proposed a sanction which Hind Transport appealed and therefore Hind Transport was allowed to operate.
I look forward to receiving this additional information so that I can understand better why the appeal which was filed 2 months ago has not been accepted.
Thank you,
Carole McAfee Wallace
From: Carol Whitman
Sent: April-22-15 1:19 PM
To: Carole McAfee Wallace
Cc: hindtrans
Subject: RE: Hind Transport appeal case
On behalf of the CVOR Accident Point Review Panel, I am required to inform you that our Panel cannot review the October 5, 2013 accident appeal case submitted for Hind Transport.
As per our procedure, we contacted the Ministry of Transportation to confirm we could proceed with the review, but were informed this carrier was under sanction. Unfortunately, this measure prohibits our Panel from conducting a formal review.
All documentation received, including the cheque for $250.00, will be returned by mail to the offices of Wilson Vukelich LLP in Markham.
Carol Whitman
Executive Assistant
Upon receipt of the Notice of Motion, the Tribunal scheduled an in-person hearing for argument on the motion. That hearing took place on May 20, 2015.
The Appellant submits that the exchange between Ms. McAfee Wallace and Ms. Whitman is evidence that the Appellant is a victim of an unfair appeal system and that a miscarriage of justice will occur if the evidence is not considered. Specifically, it is submitted, the points assigned against the Appellant were based on an on-the-spot assessment by a police officer and to a considerable extent, reflect an arbitrary assessment. Since, based on the fresh evidence, those 6 points are not contestable, they should not be considered by the Tribunal. Without the 6 points, the Appellant submits that its safety rating would be at 50.92%. The Respondent contests the Appellant's position on the motion and further contests the 50.92% figure. Without the 6 points, the Registrar submits, the Appellant's safety rating is at roughly 70%.
Moreover, neither party provided any case law to guide the Tribunal on the test to apply on a motion for fresh evidence, filed at a stage when the hearing has been completed, but prior to the Tribunal rendering its decision. Accordingly, the Tribunal has operated on the basis that it has a residual discretion to allow the evidence to ensure that a miscarriage of justice does not occur (see Castlerigg Investments Inc. v. Lam (1991), 1991 CanLII 7355 (ON CTGD), 2 O.R. (3d) 216 (Gen.Div.)).
Notwithstanding the open-ended nature of the above-noted test, the fresh evidence tendered must be cogent. The Tribunal notes that the Appellant has not called someone from the IHSA to substantiate the statements contained in the e-mails of Ms. Whitman. The Tribunal did not hear any evidence that Ms. Whitman is authorized to speak for the IHSA on substantive matters, to the point where her statements would bind the IHSA. In the circumstances, the Tribunal dismisses the Appellant's motion on grounds that the e-mail exchange is not sufficiently persuasive, on a balance of probabilities, to establish a miscarriage of justice in this case.
Accordingly, the Tribunal will proceed to assess issues 1 and 2, as raised during the course of the main hearing, without reference to the fresh evidence.
Issue #1: Performance Conditions Have Not Been Met
At the main hearing, the Registrar called Chris Austin, a Carrier Safety Administrator. Mr. Austin has been employed by the Registrar since 2001. Mr. Austin set out the evidence related to the Appellant's safety rating and lack of compliance with the Performance Conditions.
The evidence before the Tribunal was that the Appellant has had a poor safety performance rating throughout its tenure as a CVOR operator. Specifically:
i) A Cancellation and Seizure Order was proposed in November 2011, as a result of the Operator's overall Safety Violation Rate being 122.2% and for having unpaid fines. This proposed sanction was set aside, by the Registrar, who imposed – instead- performance conditions, similar to those later imposed by Vice-Chair Flude, as follows:
The CVOR Certificates, plate portions of permits and numbered plates issued to 2078020 Ontario Inc. will be subject to cancellation and seizure proceedings in the event of:
a) Your overall safety violation rate exceeding 50% using a performance analysis period commencing on January 27, 2012, for a one year period,
b) An overall out of service percentage exceeding 35% using a performance analysis period commencing on January 27, 2012, for a one year period,
c) The undertakings committed to are not implemented and monitored as outlined in the action plan submitted.
ii) By August 2012, the Applicant's overall violation rate was at 73.71%. A second notice of cancellation and seizure was issued on October 16, 2012 and a show cause meeting was held on November 5, 2012. Prior to the Show Cause meeting, the Appellant requested a Facility Audit. The results of the audit were favourable. As a result, the proposal to cancel the Appellant's CVOR was changed to a suspension of 30 days.
iii) This revised penalty of a 30-day suspension was appealed and was the subject of the above-noted hearing before Vice-Chair Flude. Following that hearing, based primarily on the favourable facility audit results and a promise by the Operator to crack down on traffic convictions, a suspension of 10 days was ordered by the Tribunal, along with the Performance Conditions noted above.
vi) Following the Suspension Order of May 8, 2013, the Appellant was involved in a fatal collision, on October 5, 2013. According to information gleaned from the police report, the Appellant's driver lost control of its vehicle and rolled over on a two lane highway. Two other vehicles struck the Appellant's vehicle and one of those vehicles struck a fourth vehicle. One person was killed. The condition of the Appellant's driver was noted as being "fatigue".
v) The Operator, having already been given two "second chances", is now before the Tribunal, again on account of a failure to operate safely and for violations of Performance Conditions. In this case, the Appellant's Overall Safety Violation Rate, for the 12-month period ordered by Vice-Chair Flude, is 102.64% (double the permitted amount).
Based on the above, the Tribunal finds that the Performance Conditions ordered by the Tribunal have not been met.
Issue #2 – Is There a Basis to Order a Penalty Less than a Cancellation and Seizure
The Appellant submitted the following grounds for ordering a penalty that is more lenient than a cancellation and seizure order:
i) A considerable amount of the current violation rate relates to one incident, the October 5, 2013 fatal collision. The determination that the Appellant was at fault for the collision was based on an on-the-spot assessment by a police officer. Such a significant assessment should not be based on such thin evidence. No accident reconstruction analysis was done by the Registrar nor were charges laid, notwithstanding the tragic results of the collision. Moreover, the at-fault finding was appealed by the Appellant to the IHSA. In all of these circumstances, the 6 points that flow from the at-fault finding of the police officer are not reliable and should be excluded by the Tribunal;
ii) Even if one considers the fatal collision, it stemmed from a failure to secure the load in the truck. In this case, owing to the nature of the contract then in question, the Appellant's driver was prohibited from inspecting the load and had to take the load as sealed, in the manner that it was loaded by the customer; and
iii) The Appellant is addressing its deficiencies through the hiring of a consultant, Jeff Lehmann. Mr. Lehmann has prepared an action plan and asserts that the Appellant's violation rate will be at 40% by May 2016.
In terms of submissions (i) and (ii), which appear to be related, the CVOR system represents a "social contract" between the regulator and the regulated. In fact, the industry was consulted in the design of the CVOR system which has been in operation for ten years. While a safety rating calculation is not immutable on an appeal, the calculation stands as a reliable measurement of the safety practices of a particular carrier. In the face of an adverse rating, properly calculated under the CVOR framework (no calculation error has been asserted in this case), it becomes incumbent on an Appellant to lead evidence as to why the safety rating proffered by the Registrar should be disregarded. In this case, the Appellant tendered no direct evidence as to why it was not at fault for the October 5, 2013 fatal collision. In terms of a restriction on its driver's ability to inspect the load in question, the Appellant had the option of declining the contract and only carrying loads that it could inspect. It can still seek redress from its customer for the losses occasioned by the collision. It cannot, in the Tribunal's view, hide behind its customer in terms of its operation within the CVOR system.
Thus, in the Tribunal's view, the points assigned against the Appellant's CVOR as a result of the October 5, 2013, collision can be considered on this appeal.
In terms of submission (iii), the Tribunal is aware that an appeal of a Registrar's Order can entail a forward-looking component (see Thistletown Motor Freight (2003) Inc. (Re), [2006] O.L.A.T.D. No. 580 at p. 12). Mr. Lehmann, however, is at least the third "expert" that the Appellant has trotted out at a show cause or Tribunal hearing. Thus, while the Tribunal in no way means to cast any aspersions on Mr. Lehmann's professionalism, his arrival in this matter amounts to too little too late. The Appellant has had two "second chances" and has failed them both. In addition, since the last "second chance", a collision involving a truck of the Appellant has led to a fatality. In that fatality, driver fatigue, which has been a long-standing problem with the Appellant, was indicated in the police report. The Appellant, with its current safety record, has, in the Tribunal's view, run out of second chances.
Order
Pursuant to the authority set out in s. 50 (2) of the Highway Traffic Act R.S.O. 1990 c.H.8, the Registrar's Cancellation and Seizure Order dated January 8, 2015 is confirmed.
LICENCE APPEAL TRIBUNAL
________________________
Richard Macklin, Vice-Chair
Released: June 15, 2015