Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2018-09-17

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

Between:

Hartstein Swine Co. Ltd.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avril A. Farlam, Vice-Chair

Joanne E. Foot, Member

Appearances:

For the Appellant: Robert Riddell, Paralegal

For the Respondent: Patrick Moore, Counsel

Heard in Toronto:

August 13, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant Hartstein Swine Co. Ltd. (“Hartstein”) appeals to this Tribunal under section 50 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a Notice of Cancellation and Seizure dated November 21, 2017 (“NCS”) made by the Deputy Registrar of Motor Vehicles (the “Registrar”) pursuant to sections 47 and 47.1 of the Act, proposing to cancel the Commercial Vehicle Operator’s Registration (“CVOR”) Certificate #163-762-572 issued to appellant Hartstein Swine Co. Ltd., Certificate #020-726-293 issued to Michael Hartstein and Certificate #171-254-798 issued to 2200523 Ontario Ltd. (“collectively appellant’s CVOR”) and to seize the plate portions of permits and number plates for all commercial motor vehicles and trailers registered to appellant’s CVOR based on the appellant’s safety record.

2The basis of the appellant’s appeal is that there has been improvement since the NCS was made and that the appellants need the CVOR to carry on the farming business and transport livestock.

3We are required to determine whether or not there are sufficient grounds for the NCS.

4We find that the Registrar has proven, based on the appellant’s safety record and other relevant information, that the Registrar has reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

5Accordingly, we confirm the NCS.

B. ISSUE:

6The issue before the Tribunal is whether or not the Registrar has proven, based on the appellant’s safety record and other relevant information, that the Registrar has reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

C: LAW:

7The 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 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 motor 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).

8Section 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 the proposed action.

9The 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.

C. EVIDENCE:

Has the Registrar proven based on the appellant’s safety record and other relevant information that the Registrar has reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety?

10Travis Donohue, Carrier Safety Rating Administrator, Ministry of Transportation (“MTO”) identified excerpts from MTO’s Commercial Vehicle Operators’ Safety Manual which explains to operators their requirements. Mr. Donohue explained that MTO has a computer system which tracks the safety record and performance of all 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. 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. Various interventions are used by MTO to engage with the operator and try and change behaviour. At a violation rate of 35% MTO typically sends a warning letter, at 50% there is a facility audit, at 85% an interview and at 100% sanction proceedings are considered unless there is a significant event in past history such as a wheel off, fatality or severe accident in which case MTO may proceed with sanctions at less than 100%. Mr. Donohue testified that as of January, 2018 out of some 55,000 CVOR holders in Ontario 0.11 of one percent have an overall safety violation rate higher than 100%.

11Mr. Donohue testified that Michael Hartstein is a director and officer of the appellant which operates two trucks and two trailers under a Commercial Vehicle Operator’s Registration Certificate (“CVOR”) issued by MTO around the end of 2008. Appellant’s Safety Record Review dated October, 2017 for the preceding twenty four month period shows an overall safety violation rate of 117.70%, and a 38.46% overall out of service rate with a vehicle out of service rate of 100% which means all of the appellant’s vehicles were placed out of service. On May 25, 2017 appellant failed a facility audit. Mr. Donohue said the appellant’s safety violation rate is based on collisions, convictions and inspections. The appellant’s 10 convictions from 2015 to 2017 were viewed by MTO as particularly problematic.

12Mr. Donohue said that the overall conclusion based on the CVOR was that a cancellation of the appellant’s CVOR would be appropriate in the interests of public safety. In all MTO records of inspections, violations and convictions Michael Hartstein is the driver of the truck.

13Appellant’s vehicles were involved in two collisions. On August 17, 2016 Mr. Hartstein was driving the appellant’s truck when the brakes failed and he hit another vehicle crossing railroad tracks in Zorra, Oxford County. On July 18, 2017 Mr. Hartstein was driving the appellant’s truck in Woolwich, Ontario when he pulled in front of an ebike, slammed on the brakes and was hit by the ebike because appellant’s vehicle did not have working brake lights.

14MTO has inspected appellant’s vehicles three times. All three times the vehicles were placed out of service. Defects included:

a) July 18, 2017: Defective lighting system (stop lamp, turn signal); insecure load, brakes adjustment, air supply lines damaged; electrical cable dragging on ground from trailer, no stop lights or signal lights on trailer, broken wire under trailer dragging on ground. A vehicle maintenance charge was issued.

b) August 17, 2016: Brakes inoperative, air supply lines leaking, no insurance, no registration permit, no annual inspection sticker on truck and no annual inspection sticker on trailer. On this occasion Mr. Hartstein removed the trailer from the scene despite the OPP officer’s order not to do so. He would not disclose where the trailer was taken or who took it. Mr. Hartstein refused to cooperate with the inspection. The plates were removed from the vehicles due to brake defects and no insurance and the truck and trailer placed out of service. An unsafe vehicle charge was issued.

c) January 6, 2016: No right turn signal, no trip inspection, tire defects (flat/leaking), stop lamp defect. Vehicle was placed out of service and Mr. Hartstein was told by OPP not to drive the vehicle until the defects are repaired. When OPP and MTO left the scene, Mr. Hartstein proceeded up Culloden Road approximately 800 meters from the original location to where MTO was parked waiting. Charges were laid, including failing to comply with direction of officer, trip inspection and vehicle maintenance.

15The appellant has had nine convictions that resulted in points deducted and one conviction without points including:

a) March 16, 2017: failure to share road

b) July 19, 2017: fail to assist examine vehicle; drive/operate unsafe vehicle

c) March 16, 2017: fail to have insurance card

d) June 2, 2016: drive commercial vehicle with defect; fail to carry daily report

e) July 6, 2016: disobey legal sign; fail to carry daily report

f) January 1, 2011: drive commercial vehicle with defect; drive commercial vehicle with defect

i) May 7 & 26, 2014: speeding

16On July 18, 2017, MTO changed the appellant’s safety rating to “conditional”. Mr. Donohue explained there was no warning letter sent in this case because of the serious lack of compliance, especially driving a vehicle when the plates had been removed, refusing to say where the trailer was and failing to have an annual inspection on the truck and trailer. Mr. Donohue agreed on cross examination that on August 17, 2018 fifteen points on the appellant’s record will expire and this will significantly lower the overall violation rate resulting in an improvement in appellant’s record.

17Dan Armstrong conducted an MTO facility audit on May 25, 2017, which the appellant failed. Mr. Donohue, Deputy Registrar of Motor Vehicles Sean Doussept and Sherry Werner, Carrier Safety Rating Administrator were all present at the show cause meeting Mr. Hartstein attended on November 8, 2017. Mr. Donohue, who made the notes of the meeting recorded that Mr. Doussept asked Mr. Hartstein to present an action plan by November 22, 2017 that “…will address the issues and show changes in his behaviour.” Mr. Hartstein submitted an action plan which the MTO felt did not address the MTO concerns and it then issued the NCS, dated November 21, 2017, which is the subject of this appeal.

18Mr. Hartstein testified that he has a farming business and the appellant has two trucks and trailers which are only used to transport his own livestock to slaughter. Together the two trucks drive approximately 16,000 kilometers a year. The appellant stated that he has taken steps to improve, which include hiring Mr. Riddell, his legal representative at the hearing, as a consultant to provide the action plan because he understood after the show cause meeting that MTO expected him to provide one, although he said MTO would not tell him what an action plan is and he had to find this out himself. The appellant testified that the NSC would make it impossible for him to haul his livestock. Mr. Hartstein said the trucking business is much safer now than it used to be. He denied ever being told not to drive his truck when it was inspected. He admitted nothing had been done to implement the action plan. He also admitted that the consultant has not come to inspect his trucking business yet and has done no training as suggested in the action plan. Mr. Hartstein explained that a dangerous driving charge was dismissed by the Ontario Court of Justice and there have been no further inspections, violations or convictions since 2017.

E: ANALYSIS:

19We find that the Registrar has proven under s. 47(1) (f) of the Act 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 motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety because the safety record of the appellant’s trucking business is poor and demonstrates a pattern of trucks being on the road with defects, some of them major; non-compliance with MTO requirements; and numerous breaches of the law resulting in convictions.

20The facts regarding the appellant’s safety record are not substantially in dispute. The appellant did not significantly challenge the Registrar’s evidence but did provide evidence that a dangerous driving charge was dismissed by the Ontario Court of Justice and that there have been no further inspections, violations or convictions since 2017.

21The appellant’s safety record, as explained by Mr. Donohue, is very poor. There are numerous violations, ten convictions and failure to maintain vehicles and records as required. Most importantly, Mr. Hartstein is the only driver who has been involved in the inspections and collisions and convictions. It is clear from the OPP and MTO records that Mr. Hartstein failed to co-operate with an inspection, drove a vehicle when the plates had been removed and refused to disclose the whereabouts of a trailer that he knew had safety defects. It was the appellant’s legal obligation to co-operate with the MTO and the OPP and the refusal to do so is troubling, as is the refusal or inability to maintain the vehicles and the trailers in a safe mechanical condition. Given that the appellant’s vehicles must share the road with other vehicles, we find that the MTO’s concern about public safety is well-founded, and we find that the respondent has proven its case. The appellant has operated its business in a manner that demonstrated disregard for the Act, the regulations and other laws relating to highway safety.

22The basis of the appellant’s appeal is that there has been improvement in the safety record and more improvement is expected when 15 points will expire on August 17, 2018 because this will significantly lower the overall violation rate resulting in an improvement in appellant’s record.

23The evidence is clear that there has been some recent improvement. The charge of dangerous driving pending before this hearing was held has been dismissed by the Ontario Court of Justice, which means that the appellant has avoided having one more criminal conviction on its record. Because points expire after a two year period, on August 17, 2018, points will be removed from the appellant’s record which is expected to result in an improvement in the record, presuming the record stays the same as it was at the time of the hearing. However, the expiration of the points by virtue of time cannot be attributed to any changes the appellant has made. There have been several years during which the appellant allowed its safety record to decline. Appellant delayed taking any concrete steps to improve until the show cause meeting. The Appellant hired a consultant to develop an action plan and help with improvements. However, Mr. Hartstein admitted that the consultant had not done any training for the appellant or visited appellant’s business at the time of the hearing. The consultant did not testify at the hearing.

24We also accept the appellant’s evidence that recently some improvement has occurred. However, those efforts are long overdue and have come about as a result of the MTO’s request that the appellant attend a show cause meeting. When faced with the possibility of loss of the appellant’s CVOR, some concrete effort to comply with the appellant’s legal obligations was made. We understand the appellant’s concern about the effect on the farming business of the proposed cancellation of appellant’s CVOR. While this is unfortunate, it is a consequence of the appellant failing to respond appropriately to the show cause meeting and failing to operate the trucking business in a responsible manner and in accordance with the Act, regulations and other laws relating to highway safety. Responsibility for any effect on appellant’s business or the farming business falls on the appellant.

25We 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 motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

26With respect to conditions that might be attached to the appellant’s CVOR if the Tribunal decided the NCS should not be implemented, respondent’s counsel submitted that the only appropriate condition would be that the appellant fire Mr. Hartstein as he is the only driver who has been involved in the inspections, violations and convictions which negatively impact the appellant’s safety record and that in any other trucking business a driver who was involved in so many negative safety incidents would have been fired long since. Appellant’s legal representative submitted that appellant is deserving of another chance to operate the trucking business in a safe manner and that although Mr. Hartstein will not fire himself, appellant would:

1. Undertake to have a violation rate of zero to 15% no later than one year from August 13, 2018;

2. Submit to a voluntary facility audit no later than six months from August 13, 2018;

3. Implement current action plan on the record within one month of receipt of Tribunal’s decision on this appeal; and

4. Mr. Hartstein will take an anger management course.

27In reply, Registrar’s counsel submitted that the appellant’s proposed conditions are not appropriate because no one can guarantee a future violation rate, the appellant must submit to a facility audit any time the MTO wishes to conduct one, ample opportunity has already been given for the current action plan to be implemented and there has been no concrete effort to implement the plan.

28The Tribunal finds that this is not a situation where registration subject to conditions is appropriate. We considered the submissions of the appellant’s legal representative and are of view that, given the appellant’s past safety record, the conditions suggested by appellant’s legal representative do not adequately address the respondent’s concerns about public safety and are inadequate to ensure that the appellant acts in accordance with the law. The weight of the evidence has demonstrated that the appellant has been willing to put the public’s safety at risk. Also, we are not convinced that the appellant can be monitored closely enough that such misconduct could be prevented, especially given Mr. Hartstein’s refusal to cooperate with MTO and OPP and to accept that vehicles cannot be driven when the plates are removed.

ORDER:

29For the reasons set out above, pursuant to subsection 50 (2) of the Act, we confirm the Registrar’s Notice of Cancellation and Seizure issued by the Deputy Registrar dated November 21, 2017.

Avril A. Farlam, Vice-Chair

Joanne E. Foot, Member