LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-30

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 from a Suspension and Seizure Order of the Registrar of Motor Vehicles pursuant to Sections 47 and 47.1.

Between:

Roger Good Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Self-represented

For the Respondent: Patrick Moore, Counsel for the Respondent

Heard in London, Ontario:

May 11, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The Appellant, Roger Good, 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 Deputy Registrar of Motor Vehicles (the “Registrar”) issued on December 7, 2016 pursuant to sections 47 and 47.1 of the Act, to suspend for a period of 21 days the Commercial Vehicle Operator’s Registration (“CVOR”) Certificate #113-280-882 issued to the Appellant (“Appellant’s CVOR”) and to seize all plate portion of permits issued and the number plates registered to the Appellant’s CVOR.

2On August 22, 2016 the Registrar issued a Notice of Cancellation and Seizure proposing to cancel the Appellant’s CVOR and seize the all plate portion of permits and the number plates registered to the Appellant’s CVOR.

3Following a show cause meeting, the Registrar changed the original Notice of Cancellation and Seizure to a Suspension and Seizure Order for a period of 21 days commencing January 3 and continuing until January 24, 2017 (the “Order”). The 21-day suspension has not taken place pending the Appellant’s appeal to the Tribunal.

4The basis of the Appellant’s appeal is that he has taken steps to improve, that he has work scheduled and that he has employees who will suffer as a result of closing his shop for three weeks.

5I am required to determine whether or not there are sufficient grounds for the Order.

6I find that the Registrar has demonstrated that the Registrar has reason to believe, having regard to the safety record of the Appellant, and other information that the Registrar considers relevant, that the Appellant will not operate a commercial MTO or vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

7Accordingly, I confirm the Order.

B. ISSUE:

8The issue before the Tribunal is whether or not there are sufficient grounds for the 21-day Suspension and Seizure Order issued by the Deputy Registrar on December 7, 2016.

9What is the safety record of the Appellant and other information that the Registrar has that has given reason to believe that the Appellant will not operate a commercial MTO or vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety?

C. EVIDENCE:

10The Tribunal heard testimony from Officer Jeffrey Wootton and Lisa Venier, both employees of the Ministry of Transportation (the “MTO”). The Tribunal also heard testimony from the Appellant.

Evidence of Officer Wootton

11Officer Wootton has been employed by MTO for some sixteen years. Since 2013 he has done audits of trucking operators to ensure compliance with the Act and also does on-road inspections. Officer Wootton explained that an MTO audit involves looking at the operator’s on road performance, compiling evidence and determining compliance with the Act by looking at the records kept by the operator. He looks at vehicle records, qualifications of workers that the operator employs and the hours of service of drivers. CVOR holders are obligated to maintain records in all three areas.

12In May, 2015, he performed a facility audit at the Appellant’s place of business. The audit was triggered by the Appellant’s violation rate being in excess of fifty percent. The Appellant had submitted an action plan to MTO at a show cause meeting held July 10, 2014. The show cause meeting was held to allow the Appellant an opportunity to say why the proposed suspension should not occur. Officer Wootton was also under specific instructions to look at the Appellant’s action plan to verify compliance with the plan as well as other compliance.

13Officer Wootton recorded in his notes the audit process. There was difficulty scheduling the audit and he was asked by the Appellant to do the audit on a Saturday. Although this is not normal process, Officer Wootton agreed to perform the audit on Saturday, May 23, 2015 provided all paperwork was ready for him. Officer Wootton testified that when he attended to perform the audit there was a lot of paperwork missing including the vehicle and driver list, annual certificates and vehicle maintenance records. When Officer Wootton asked about the drivers’ cycle, the Appellant said he was not sure what that was but decided they were on a seven day cycle. Hours of service records were missing for several drivers.

14Officer Wootton identified the four-point action plan that the Appellant had provided to MTO in 2014. The Appellant’s plan provided as follows:

“1. As for hours of duty all drivers will be instructed to stop driving after 14 hours on duty. If crews are out more than 14 hours per day driver will have time off duty to rest.

2. All CVOR registered vehicles have daily pre trip inspection sheets which included: date, time, starting place, hours of driving, odometer reading, any defective items, name and address of company, copy of CVOR, form 1. Drivers have training on filling out pre trip inspections.

3. All drivers shall have training on load security based on information on MTO website. All drivers shall by bi-yearly update meeting or oftener if needed.

4. All vehicles shall have annual inspection safety plus a 3 months level 2 inspection by our in shop mechanic.”

15With regard to the Appellant’s action plan, Officer Wootton testified that he found more than one driver was over the 14-hour daily limit. Although the Appellant was obligated to keep a record of the hours by name of driver, date, where they started and they went, the hours of some drivers had not been recorded. Pre-trip inspection sheets had missing information. There was no paperwork on driver training regarding pre-trip inspections. Although the Appellant said he took the drivers out on a road test and they knew how to do pre-trip inspections, there was no documentary evidence of those meetings taking place and no evidence that drivers had been trained on load security. There was no record of any training of operators or drivers. There were no records of annual inspections for the vehicles for two years as required. The Appellant said he was doing vehicle maintenance in his shop but had no records about that to show Officer Wootton.

16During his cross examination of Officer Wootton, the Appellant stated that Officer Wootton’s testimony was put together very well and contained no lies.

Evidence of Ms. Venier

17Ms. Venier has worked at the Carrier Sanction and Investigation Office of MTO for the past 17 years. This is the office which monitors and intervenes on carriers when their records reach a certain level. She has been a Carrier Safety Rating Administrator for the past two years. In that capacity she prepares files for sanctions, attends show cause meetings with the Deputy Registrar. Previous to that, Ms. Venier was a CVOR analyst for some fifteen years.

18Ms. Venier identified MTO’s Commercial Vehicle Operators’ Safety Manual which is available on line and shows operators what their requirements are. In this case, the Appellant is the operator. The MTO has a computer system which tracks the safety record and performance of operators including the Appellant. This information is recorded in the CVOR abstract which records convictions, collisions, inspections, kilometric travel and other significant events. Points are assigned to an operator’s record. A copy of the CVOR abstract is usually sent to an operator with a warning letter from MTO and is also available to the operator for a five dollar fee. An overall violation rate and other rates are assigned to an operator. Violation rates are looked at to determine interventions with the operator. MTO developed the computer system with input from industry stakeholder groups in an effort to reduce collision rates on Ontario roads.

19Various interventions are used by MTO to engage with the operator and try and change behaviour. At a violation rate of 35% MTO sends a warning letter. This is typically very effective in producing compliance in about 85% of the cases. At 50% there is a facility audit. At 85% there is an interview. At 100% sanction proceedings are considered unless there is a past history in which case sanctions may be proceeded with at less than 100%. If a “conditional rating” is assigned to an operator, this is the lowest rating an operator can have and still have vehicles on the road. In 2015 approximately 0.5% of CVOR holders had a conditional rating.

20Ms. Venier identified the Appellant’s Safety Record Review for August 2016 which she prepared for the Deputy Minister of MTO. In 2010 the Appellant had an excellent safety record and then the rating declined. The Appellant has had a conditional rating since January, 2013 and still does. The Appellant was notified by letter dated May 13, 2014 that he had to attend an interview with MTO on June 5, 2014 because he had accumulated safety-related violations at an unacceptable rate. The Appellant asked for a new date to be set and a new date of June 16, 2014 was set. The purpose of the interview is to go over the safety records, maintenance records and to discuss how to improve these to avoid further sanctions. Typically MTO asks the operator to make an action plan to improve the safety rating. The letter dated May 13, 2014 requiring the interview states: “Failure to attend the meeting date may result in suspension and seizure proceedings to commence against your CVOR certificate and registered commercial MTO or vehicle plates and permits.” The Appellant did not attend the interview. The MTO thought the Appellant did not take his responsibilities seriously.

21A Suspension and Seizure Notice for a thirty day period was issued to the Appellant on June 19, 2014 due to the failure to attend the scheduled interview. He was notified of a “show cause” meeting on July 10, 2014 to show why the Suspension and Seizure Order should not be issued. The Appellant attended the show cause meeting held July 10, 2014 and a decision was made to set aside the Suspension and Seizure Notice and impose Notice Performance Conditions which provided that the Appellant’s CVOR will be subject to Cancellation and Seizure in the event of:

a) The overall safety violation rate exceeding 50% using a performance analysis period commencing on September 1, 2014.

b) The overall out of service rate exceeding 35% using a performance analysis period commencing on September 1, 2014.

c) The policies and procedures outlined in the company’s Safety and Maintenance Program Manual are not adhered to.

22Ms. Venier monitored the Appellant’s performance which continued to be poor. By letter dated December 21, 2015 the Appellant was notified by MTO that the Registrar has reason to believe that he may not operate vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety and as a result, the Appellant was notified, in accordance with s. 47.1(4), that he shall not transfer or lease any commercial MTO or vehicle or trailer for which a permit has been issued in Ontario or do anything that will result in a change of name on the vehicle portion or plate portion of the permit for any such vehicle or trailer without the consent of the Registrar.

23The Appellant’s CVOR abstract dated August 19, 2016 demonstrates the Appellant’s poor record. His overall violation rate for the preceding two years is 97.12% operating eleven commercial vehicles with sixteen drivers. The conviction rate was 187.80% of the set threshold and the inspection rate was 109.98% of the set threshold. Ms. Venier explained that the Appellant’s vehicle “out of service” which is the percentage of vehicles pulled off the road following inspection was 43.75% for nineteen vehicles which is very high.

24Ms. Venier explained that after September, 2014, the CVOR abstract shows details of multiple violations and convictions which included failures to produce trip inspection reports; T.K.G., a driver convicted in court for speeding and for driving without a licence or improper class of licence; failure to surrender inspection report or schedule; the Appellant as a driver, convicted for failing to display the annual inspection certificate on the vehicle and operating without a valid CVOR; drivers failing to wear seat belts and failing to maintain records; conviction for “insecure load”; failing inspection of MTO or coach or bus and defects on the truck and trailer. These all occurred after the performance conditions started September 1, 2014. Ms. Venier testified that a Performance Analysis for the period from September 1, 2014 to August 31, 2016 showed an overall violation rate of 136% which is very high. She stated that the violation rate was so high because of these convictions. The conviction rate was 103%. The total set threshold was 258.01% which Ms. Venier described as “very, very high”. The Appellant had 28 convictions with 75 points in total with the majority being safety issues. In this time period the overall out of service rate was 50% and the vehicle service rate was 52%. Roughly one half of the inspections led to vehicles being taken out of service upon inspection.

25Ms. Venier testified that the overall conclusion based on the CVOR abstract analysis was that the Appellant had failed to meet the performance conditions which had started September 1, 2014 and that a cancellation of the Appellant’s CVOR would be proper.

26The Appellant was notified in writing on August 22, 2016 that the Registrar proposed to cancel the Appellant’s CVOR certificate and cancel and seize the plate portion of his vehicle permits. The notice stated that a review of his CVOR safety record indicates unacceptable performance and gives the Registrar reason to believe that he may not operate vehicles safely or in accordance with the Act, the regulations or other laws relating to highway safety. Cited as a reason in this letter is the Appellant’s failure to meet specific performance conditions set August 13, 2014. The Appellant was notified that he could dispute the proposed Cancellation and Seizure by meeting with the Registrar on September 19, 2016.

27Ms. Venier said that the Appellant did attend the show cause meeting on September 19, 2016 at which she was also present. Ms. Venier referred to her notes of the meeting which verified that at the end of the meeting the Appellant committed to provide to MTO by October 28, 2016 an action plan, insurance policy, vehicle list, driver list and a written contract between himself and Safety Dawg Inc., the Appellant’s consultant. Most of this information was provided by the Appellant to MTO.

28Ms. Venier stated that the Registrar took into account that the Appellant had hired a consultant, had put forward an action plan, undertaken some training and other improvements to operations and business practices and decided to change the original Notice of Cancellation and Seizure to an actual Suspension and Seizure Order for 21 days.

29At the end of Lisa Venier’s testimony, the Appellant chose not to ask any questions of this witness.

Evidence of the Appellant

30The Appellant testified that he feels like a criminal but understands that his failures need to be pointed out. He explained that he operates a small concrete forming and excavation business. He stated that he operates a lot of trucks with low kilometers which helps to make his records look poor. The Appellant said he lost his office man which contributed to him not knowing what to give to the auditor and this is why his safety record went down. The auditor used the payroll records to come up with the hours of service because his other records had the start time on them but not the end of the day time. The hours of service his employee recorded related to working time, not driving time. The Appellant admitted that he did not keep maintenance records because of his ignorance. When something broke, they fixed it but he did not understand he had to keep paperwork.

31The Appellant stated that he has taken steps to improve which include hiring a consultant, Chris Harris of Safety Dawg Inc. The consultant has done some training and the Appellant has given Certificates of Training to MTO dated September 27, 2016 to show that his employees have received training for load securement. He also testified that he has hired a mechanic to do maintenance and repairs in house and has created a file for each vehicle in order to keep track of annual inspections. The Appellant stated that he has spent a lot of money with BSM, a company which has installed electronic equipment in each vehicle to keep reports on speeds, inspection dates and daily inspections sheets in conjunction with Bell Mobility. The Appellant predicts that his violation rate will drop drastically in the future.

32The Appellant testified that a 21-day suspension will create a tremendous financial burden on his business because of contracted work and on the employees who rely on their employment to feed their families. Summer is busy for his business. The Appellant said he feels guilty to have heard all his negligence but now his business is much safer. The suspension will not make his company safer.

33In cross examination the Appellant admitted that he knew when his trucks were stopped and when the drivers got tickets because they told him about it. The Appellant admitted that he knew things had to be fixed. However, until the consultant came in, he did nothing to improve. He said that he knew “dire” consequences would happen if he did not improve but did not know the extent of it until the consultant told him. He admitted that the training done by the consultant was four years after his problems with MTO first arose. He also admitted that the consultant is not coming to his business monthly as suggested by the documents he has provided to MTO.

D: LAW:

34The 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”). The Registrar may suspend or cancel the plate portion of a permit or a CVOR certificate on the following grounds:

“(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a MTO or vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(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 MTO or vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

35Section 47.1(1) states that before suspending or cancelling a plate portion of a permit or a CVOR certificate under s. 47(1), the Registrar must provide notice of his or her proposed action.

36The decision of the Registrar may be appealed to the Tribunal pursuant to section 50(1) of the Act. Following a hearing, under s. 50(2) of the Act, the Tribunal may confirm, modify or set aside the decision of the Registrar.

E: ANALYSIS:

37I must determine whether the Registrar had grounds for the Suspension and Seizure Order under s. 47(1) of the Act. The Registrar relies on the ground in s. 47(1)(f), that the Registrar has “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 MTO or vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety.”

38The facts regarding the Appellant’s safety record and how he has operated his business are not substantially in dispute. The Appellant did not significantly challenge the Registrar’s evidence.

39The safety record, as demonstrated by Officer Wootton and Ms. Venier, is very poor. The CVOR abstract, the audit in 2015 and the other performance indicia show numerous violations, convictions and failure to maintain records as required. The legal obligations are available to operators online. The Appellant has had warnings and notices from MTO, been invited to an interview and attended show cause meetings. The Appellant has had a conditional safety rating since 2013. The MTO has escalated its interventions with the Appellant in an effort to bring him into compliance, all to no avail until the late summer of 2016. Until then, the Appellant has operated his business in a manner that demonstrated disregard for the Act, the regulations and other laws relating to highway safety.

40The basis of the Appellant’s appeal is that he has taken steps to improve, that he has work scheduled and that he has employees who will suffer as a result of closing his shop for three weeks.

41The evidence is clear that the Appellant has recently taken steps to improve. However, these efforts follow a period of some years during which the Appellant allowed his excellent safety record to decline despite repeated warnings and interventions by MTO. The Appellant failed to respond to the MTO invitation to an interview, failed to abide by the 2014 performance conditions and delayed taking any concrete steps to improve until he received the Notice of Cancellation and Seizure dated August 22, 2016. The Appellant stated that he has hired a consultant to help with improvements. The letter from the consultant is dated October 16, 2016. The consultant did not testify at the hearing.

42Ms. Venier stated that the Registrar took into account that the Appellant had hired a consultant, had put forward an action plan, and undertaken some training and other improvements to operations and business practices in deciding to change the original Notice of Cancellation and Seizure to a Suspension and Seizure Order for 21 days. I accept this evidence and that the leniency of the Registrar is in recognition of the Appellant’s recent efforts to improve.

43I also accept the Appellant’s evidence that he has recently made some efforts to improve. However, those efforts are long overdue and clearly have come about as a result of the Registrar’s decision to cancel the Appellant’s CVOR and seize the plate portions of permits for all commercial MTO or vehicles and trailers dated August 22, 2016 and sent to the Appellant. When faced with the loss of the Appellant’s CVOR, he finally made some concrete effort to comply with his legal obligations. The consultant was hired in the fall of 2016, after the Registrar had already sent the Notice of Cancellation and Seizure dated August 22, 2016.

44I understand the Appellant’s concern about the effect on his business and his employees by the twenty one day suspension of the Appellant’s CVOR. While this is unfortunate, it is a consequence of the Appellant choosing to fail to respond appropriately to the corrective measures of the Registrar over a period of several years and failing to operate his business in a responsible manner and in accordance with the Act, regulations and other laws relating to highway safety. Responsibility for any effect on the Appellant’s business and his employees as a result of the twenty one day suspension falls on the Appellant.

45I accept the Registrar’s submission that the Registrar has 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 MTO or vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

ORDER:

46For the reasons set out above, pursuant to subsection 50 (2) of the Act, I confirm the Registrar’s Suspension and Seizure Order dated December 7, 2016.