Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9757/CVOR
CASE NAME: 9757 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
Mann Trucklines Ltd. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Lovepreet Dhillon, Paralegal
For the Respondent: Ryan DeFaria, Counsel
Heard in Toronto: January 19, 2016
DECISION AND ORDER
BACKGROUND
The Deputy Registrar of Motor Vehicles, by order dated August 20, 2015, ordered the cancellation of Commercial Vehicle Operator’s Registration (“CVOR”) certificates 178-782-764, 175-254-126, 174-354-601, issued to Mann Trucklines Ltd., 2305595 Ontario Inc. and 2336149 Ontario Inc., and that the plate portion of permits released to these CVORs be seized (“Cancellation and Seizure Order”). (Exhibit 1) The Appellant appealed this order by Notice of Appeal dated September 1, 2015. (Exhibit 2)
THE EVIDENCE
The Tribunal heard evidence from Sherry Atallah on behalf of the Registrar. Ms Atallah has been a Carrier Safety Rating Administrator at the Ministry of Transportation of Ontario (“MTO”) since 2001. She began her testimony by reviewing the CVOR system. At this time, a book of documents, containing 17 tabs, was filed on behalf of the Registrar and entered as Exhibit 3. Ms Atallah referenced these documents throughout her testimony.
Ontario carriers must hold a CVOR to operate vehicles in excess of a certain weight threshold. Based on the size of the fleet and the estimated kilometers of travel in any given year, a CVOR holder is assigned a rating, called a violation rate (“VR”). This is analogous to points on a personal licence. Three types of incidents may cause carriers to accrue points against the VR:
- at fault collisions;
- out-of-service safety defects on their trucks discovered during roadside inspections; and
- violations of the rules of the road.
A CVOR holder’s record is expressed as a percentage of the maximum permissible VR.
There are intervention levels when the MTO may take action against a carrier. The first intervention level is at 35% VR. The Registrar will send a letter to the carrier advising of a worsening record and asking for improvement. According to statistics provided by Ms Atallah, 95.5% of carriers operate at 35% VR or below. A VR of 50% may trigger an audit. At 85%, the Registrar may call the carrier in for an interview about its record where they review steps to improve it. 0.3% of carriers reach the 85% level. At 100% VR, the Registrar will levy sanctions. 0.1% of carriers have a record in excess of 85% but below 100%, and 0.1% of carriers exceed 100% VR.
Next, Ms Atallah gave some background about the Appellant’s business. The Ministry’s records indicate that the Appellant, which was initially issued a CVOR on March 20, 2014, has one corporate officer, Sarbjit Mann. The Vehicle Registration System indicates that the Appellant has a fleet size of 6 commercial motor vehicles with approximate annual travel of 474,000 kilometers within Ontario, 77,400 kilometers within the rest of Canada and 81,500 kilometers within the United States.
Ms Atallah proceeded to review the Appellant’s CVOR record. She indicated that the Appellant was brought to the Ministry’s attention as a result of an overall VR of 125.8%. A warning letter was issued on October 6, 2014, just over 6 months after the Appellant was issued a CVOR. A second performance analysis indicates an overall VR of 167.61% for the 8 month period following the letter.
As of July 2015, a total of 13 convictions had been recorded on the CVOR record. Points were assigned for 12 of these convictions. The majority of the convictions involved logbook violations and speeding convictions. There have been no at fault collisions. Ten roadside inspections were conducted during this time period; in six of these inspections, out-of-service safety defects on the trucks were discovered.
Ms Atallah indicated that the Deputy Registrar notified the Appellant, by correspondence dated July 16, 2015, that he was proposing to change the safety rating for its operation to “unsatisfactory”. The Deputy Registrar issued a Notice of Cancellation and Seizure (“Notice”) on the same date. The Appellant was informed in the Notice that he could meet with the Deputy Registrar on August 13, 2015 at a “show cause” meeting. The purpose of such a meeting is to give the operator a chance to present information, normally of remedial measures or corrective action, which could influence the Registrar’s decision on the proposed cancellation of the CVOR certificate(s).
The Deputy Registrar, the Program Standards Manager and Ms Atallah attended the show cause meeting for MTO on August 13, 2015. Sarbjit Mann, President, Harjeet Dhadda, Transportation Consultant with G & G Trucking Solutions (“G & G”), and Randeep Singh, Dispatcher, attended the meeting for the Appellant. The Appellant did not make any submissions during the meeting or present any information about corrective measures it had implemented. Mr. Singh advised that he would be speaking with Pitter Mann, the spouse of Sarbjit Mann, to develop an action plan. The Deputy Registrar requested a copy of this action plan before August 19, 2015 and indicated that a decision would be forthcoming. A carrier action plan was submitted, indicating that G & G would take full control of safety and compliance for the company and identifying certain new procedures which would be followed. (Exhibit 3, Tab 12).
Ms Atallah referred the Tribunal to an updated Commercial Vehicle Operator Summary (dated January 11, 2016) for the Appellant, which was entered as Exhibit 4. The document reveals an overall VR of 140.55%. Another document, containing Commercial Vehicle Inspection Reports for the Appellant, was entered as Exhibit 5. Ms Atallah reviewed these reports, and indicated that there have been a total of 18 convictions with points assigned, and 19 roadside inspections, in 9 of which out-of-service safety defects on the trucks were discovered. Since G & G was hired in August 2015, there have been 5 convictions and 9 roadside inspections, 3 of which detected in out-of-service safety defects. Pitter Mann was the driver on a number of the convictions and inspections involving out-of-service safety defects, including ones occurring after G & G was hired.
Finally, Ms Atallah referred the Tribunal to a carrier record profile (contained in Tab 6 of Exhibit 3) which shows Pitter Mann as the president of two other companies with CVOR certificates, 2305595 Ontario Inc. (operating as Knight Rush Enterprise) and 2335149 Ontario Inc. The CVOR certificate status for the first company is terminated (CVOR #175-254-126), and the status for the second company is active (CVOR # 174-354-601).
The Tribunal heard evidence from three witnesses on behalf of the Appellant, Sarbjit Mann, Pitter Mann, and Randeep Singh.
Mrs. Mann stated that she has been the owner and president of the Appellant since March 2014; however, she is not involved in the operation of the company and has no experience in trucking operations. She is a signing officer and this is her only duty with respect to the company. She indicated that her husband, Pitter Mann, runs the company.
Mr. Mann stated that he used to work full-time as a driver for the Appellant but he had gall bladder surgery two months ago and his doctor has recommended that he drive less. He indicated that G & G delivered training to him and the other employees of the company, in September and December 2015, and has been overseeing office functions and dispatch. He acknowledged on cross-examination that he was the driver on two occasions after taking the training, where out-of service defects were discovered during roadside inspections. Mr. Mann stated that he hired two new drivers the week prior to the hearing, with over 30 years of experience.
Mr. Singh summarized his responsibilities as dispatcher for the company.
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 reveals that the Appellant has had an extremely poor safety record in the short period of time it has held a CVOR. Based on the evidence of Mrs. Mann, Pitter Mann is the de facto president of the Appellant. He is the actual president of two other companies which have , or had, CVOR certificates.
The Appellant was given several opportunities to implement remedial measures to address the unacceptable level of out of service safety defects and violations of the rules of the road, beginning in October 2014 when it was issued a letter of warning from the Deputy Registrar.
The Appellant has been very slow to implement any corrective measures. It implemented no corrective measures whatsoever between October 2014 and August 2015, and the Appellant’s safety rating worsened during this time period.
The corrective measures it did implement (i.e., hiring G & G to conduct training and oversee compliance functions) occurred after the show cause meeting, during which the Appellant made no submissions. These measures have been ineffective and have not resulted in improvements to the company’s safety record.
The Appellant did not call any witnesses from G & G to give evidence at the hearing. Mr. Mann’s evidence that he hired two new drivers, each with 30 years of experience, in January 2016 represents too little too late. So too is Mr. Dhillon closing submission, that as a last resort, Mr. Mann would be prepared to sign an undertaking that he would no longer drive for the company and would limit his role to helping out with vehicle maintenance.
Mr. Dhillon pointed to the financial hardship the cancellation and seizure order would cause to the Mann family. However, financial hardship is not a relevant consideration when determining whether to confirm, vary or set aside the Registrar’s proposed Cancellation and Seizure Order. The purpose of the legislation is to protect the public by ensuring only safe carriers can operate heavy trucks on the road; to this end, the Tribunal may vary or set aside a Cancellation and Seizure Order where an Appellant has demonstrated that it has implemented effective remedial measures resulting in significant improvements to its safety rating over a period of time. In this case, there have been no such improvements.
ORDER
As such, based on the evidence and pursuant to the authority vested in the Tribunal under s. 50(2) of the Act, the Tribunal confirms the Cancellation and Seizure Order, dated August 20, 2015.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: February 3, 2016