Appeal under subsection 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
RECONSIDERATION DECISION
Before: Jeanie Theoharis, Vice-Chair
Written Submissions By:
For the Appellant: Robert Riddell, Paralegal
For the Respondent: Patrick Moore, Counsel
Overview
1The appellant, Hartstein Swine Co. Ltd., requests reconsideration of the Licence Appeal Tribunal’s decision dated September 17, 2018 confirming the decision of the Registrar of Motor Vehicles (the “Registrar”), to cancel the appellant’s Commercial Vehicle Operator’s Registration (“CVOR”) certificate and seize the plate portion of permits and number plates for all commercial motor vehicles and trailers registered to the appellant’s CVOR.
2Michael Hartstein, the principal of the appellant, runs a farming business and uses the two trucks under the appellant’s CVOR to transport livestock to slaughter. The Registrar decided to cancel the appellant’s CVOR certificate due to the appellant’s high safety violation rate. The appellant failed a facility audit in 2017, had 10 convictions under the Highway Traffic Act (“HTA”) between 2015 and 2017, was found on three inspections to have defects in its trucks, and has been involved in two collisions in which Mr. Hartstein was driving.
3The Tribunal determined, based on the appellant’s safety record and other relevant information, that there was reason to believe that the appellant will not operate a commercial vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety. Accordingly, the Tribunal found that the Registrar had established the ground for cancelling the appellant’s CVOR certificate under s. 47(1)(f) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The Tribunal also found that it was not an appropriate situation to allow registration on conditions.
4For the reasons that follow, I dismiss the appellant’s request for reconsideration.
Analysis
5The Executive Chair or her delegate may reconsider a decision of the Tribunal based on the criteria in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). The Executive Chair has delegated to me the responsibility to decide this reconsideration request.
6In order to grant reconsideration, I must be satisfied of one of the following criteria:
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;
(c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
7The appellant has not specifically referred to any of the criteria in Rule 18.2. However, I have considered the appellant’s submissions in light of those requirements.
8The appellant makes the following main arguments in support of its request for reconsideration:
a. The Tribunal misapprehended the evidence regarding a collision on July 18, 2017 involving Mr. Hartstein;
b. The Tribunal failed to consider and apply the appropriate weight to the evidence of improved safety record and compliance with the HTA;
c. The appellant was not afforded due process at the Ministry of Transportation; and
d. The Tribunal erred in considering appropriate conditions.
9Many of these arguments relate to how the Tribunal weighed the evidence. It is not the Tribunal’s role on reconsideration to reweigh the evidence: Taylor v. Aviva Canada Inc., 2018 ONSC 4472 at para. 70 (Div. Ct.). The parties have the opportunity at the hearing to present evidence, challenge the other parties’ evidence through cross-examination, and make submissions. A reconsideration request is not an opportunity to restate the evidence in the hope of having the tribunal reach a different decision.
Evidence regarding the July 18, 2017 collision
10I am not satisfied that the Tribunal misapprehended the evidence regarding the collision on July 18, 2017.
11The appellant takes issue with the Tribunal’s statement that Mr. Hartstein pulled in front of an ebike, slammed on his brakes and was hit by the ebike because the appellant’s vehicle did not have working brake lights. In my view, it was open to the Tribunal to describe the collision as it did based on a consideration of all the evidence.
12The appellant refers to the fact that Mr. Hartstein was found not guilty of dangerous driving in his criminal trial in relation to that incident. However, the Tribunal’s reasons show that the Tribunal was aware of the criminal case and considered the fact that Mr. Hartstein was found not guilty in reaching its conclusion.
13The appellant also argues that there was no evidence that the brake lights were not working at the time of the collision and that this fact should not have been considered in the Tribunal’s decision. However, the reasons show that an MTO inspection revealed a defective lighting system. Although this inspection occurred after the collision, it is still probative of the state of the brake lights before the collision. Further, submissions by both parties note that the rider of the ebike stated that he did not observe brake lights. The Tribunal was entitled to rely on this evidence to conclude that the brake lights were not working. The appellant’s argument on this issue does not reveal a significant error of fact or law.
Weight assigned to the evidence of improved safety and compliance
14The appellant submits that the Tribunal failed to place appropriate weight on recent improvements in safety and compliance with the HTA. I am not satisfied that the Tribunal made an error of fact or law in this regard.
15The Tribunal’s reasons show that it accepted that the appellant’s safety record had recently improved and that the violation rate would decrease in the future when points are removed from the appellant’s record after a two-year period. The Tribunal took these facts into consideration and concluded that the efforts to improve were long overdue and the expiration of the points by virtue of time cannot be attributed to any changes the appellant has made. These findings were open to the Tribunal on the evidence.
16The appellant asks the Tribunal to consider new evidence – a CVOR abstract that postdates the Tribunal’s decision – which shows that the appellant’s CVOR violation rate has decreased significantly. I am not satisfied that the new evidence ought to be considered. Rule 18.2(d) allows me to consider new evidence only if it “could not have reasonably been obtained earlier and would have affected the result.” The appellant could have brought the contents of the CVOR abstract to the hearing, as the decrease in violation rate could have been projected based on the expiry of points. In any event, the Tribunal did take into consideration the fact that the violation rate would decrease in the future. Accordingly, the new evidence would not have changed the result.
17The appellant also submits that the Tribunal failed to consider certain collision-free periods of time and the fact that the collisions did not result in injuries. The Tribunal is not required to reiterate every piece of evidence it considered. There is nothing in the reasons to suggest that the Tribunal misunderstood the frequency of collisions or whether there were injuries.
18The appellant further submits that facts were misrepresented to the Tribunal; however, I am not satisfied based on the appellant’s submissions that this was the case. The fact that the Tribunal might received conflicting evidence does not mean that the evidence was misrepresented.
19None of the above arguments provide a basis for reconsideration.
Due process arguments
20The appellant argues that it was denied due process because the Registrar failed to engage in progressive sanctions short of issuing the Notice of Cancellation and Seizure. This argument does not provide a basis for reconsideration.
21The Registrar’s actions were not in issue before the Tribunal, nor was it within the Tribunal’s jurisdiction to determine if the Registrar utilized each of its possible interventions prior to ordering a CVOR cancellation. If the appellant had an issue with the process taken by the Registrar, that issue ought to have been addressed with the Registrar. It is not appealable to the Tribunal.
Consideration of conditions
22The appellant appears to take issue with the Tribunal’s consideration of the respondent’s position that the only appropriate condition would be if the appellant fired Mr. Hartstein.
23It is not an error for the Tribunal to consider the respondent’s submissions on conditions. The Tribunal also considered the appellant’s submissions on appropriate conditions and the fact that the appellant stated Mr. Hartstein would not fire himself. I find no error in the Tribunal’s analysis that conditions were not appropriate in this case.
ORDER
24For the reasons set out above, the reconsideration request is dismissed.
Jeanie Theoharis Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: October 18, 2019