Appeal from a Suspension and Seizure Order of the Registrar of Motor Vehicles under the Highway Traffic Act
Between:
Gervais Motors Limited
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Adjudicator: D. Gregory Flude, Vice-Chair
Appearances:
For the Appellant: Gerry Tutecky-McDougall, Counsel
For the Respondent: Patrick Moore, Counsel
Heard in Kingston: December 13 & 14, 2018
OVERVIEW
1The appellant, Gervais Motors Limited, holds Commercial Vehicle Operator’s Registration Certificate (“CVOR”) # 016-663-373, giving it the right to operate heavy vehicles and tow trucks on Ontario’s highways. The Registrar became concerned about the safety record of the appellant and issued a Suspension and Seizure Order (the “Order”) on August 20, 2018, pursuant to s. 47(1)(f) and (g) of the Highway Traffic Act, R.S.O. 1990 c. H.8 (the “Act”). The effect of the Order is to suspend the appellant’s right to operate trucks on Ontario highways for a period of 14 days. The appellant appeals that order to the Licence Appeal Tribunal pursuant to s. 50 of the Act.
2The Registrar alleges two areas of concern about the safe operation of the appellant: the appellant has maintained a poor safety record over an extended time period despite multiple interventions by the Registrar, including a previous suspension, and there have been a number of recent significant safety-related events that indicate to the Registrar that the appellant is not operating safely on the Ontario’s highways.
3In response to the Registrar’s position, the appellant submits that its safety record is below the level where the Registrar should impose a suspension and appears worse than it is because the Registrar has included events that should not be included. It also argues that it took action to address its on-road safety performance prior to the suspension and it needs time for the improvement in its safety record to take effect.
ISSUES:
4The issues before me are:
a. Having regard to the safety record of the appellant, is there reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety?
b. If the answer to the first issue is yes, what is the appropriate sanction?
RESULT
5I am satisfied that the appellant’s safety record provides reasonable grounds to believe that it will not operate a commercial motor vehicle safely. In my view, based on steps taken by the appellant to address its operations and enhance safety, the appropriate sanction is a 14-day suspension.
ANALYSIS
Documentary Evidence
6At the outset of the hearing, I entered the Registrar’s Exhibit Book as Exhibit 3, subject to identification. I advised the parties that I would not refer to any documents not either consented to or identified by a witness in arriving at my decision. The witness for the Registrar, Travis Donohue, identified the documents at each tab of the Registrar’s Exhibit Book.
The CVOR System
7Travis Donohue has been employed by the Ministry of Transportation of Ontario since 2000. For the first six years he worked as a Road Safety Officer. Thereafter, for eight years he was a Facility Auditor, conducting audits of CVOR holders to ensure compliance with the Act. He became a Carrier Safety Rating Administrator approximately 3½ years ago. In his evidence, he explained the CVOR safety rating process, the manner in which interventions are triggered by the program, and provided a detailed breakdown of the safety ratings of the appellant. His evidence disclosed a chronic poor safety record despite interventions by the Registrar. It also disclosed several serious recent incidents.
8Trucking companies in Ontario are assigned a safety rating, that is, a maximum number of infractions, or threshold. The rating is based on the number of kilometres the company will travel in a twelve month period in Ontario. Companies with higher mileage will be assigned a higher threshold and vice versa.
9Infractions in the form of moving and safety violations, at fault collisions and vehicle defect violations are tracked in a computer database. The information is entered from police and road safety officer reports. Infractions are assigned points, with more serious infractions being assigned more points. The total number of points, from time to time, is expressed as a percentage of the total permitted threshold. This number is expressed as a percentage violation rate (% VR). Points stay on a company’s record for two years so a % VR shows the company’s performance over the last two years.
10There are trigger points when the Registrar will take action. If a company’s % VR reaches 35%, the Registrar issues a letter pointing out the rising % VR and advising the company to take corrective action (Warning Letter). When it hits 50%, the Registrar may send an auditor to audit the company’s operation (“Facility Audit”). At 85% VR there may be an interview and at 100% the Registrar will consider sanctions ranging from suspension to cancellation.
11The trigger points are subject to the discretion of the Registrar. For instance, the Registrar may proceed to sanction at any % VR if he has ongoing concerns about the safety of a company’s operations. Similarly, if there appears to be no commitment to safety following a sanction, the Registrar may impose further sanctions notwithstanding that the company has not exceeded the 100% VR.
12Prior to imposing sanctions, it is the Registrar’s practice to invite the CVOR holder to a meeting to discuss its safety record and any remedial measures the company proposes to employ to correct its record. This meeting is called a Show Cause meeting and is conducted by the Deputy Registrar. Following that discussion the Registrar may issue a Cancellation and Seizure order, issue a Suspension and Seizure Order, as happened in this case, or take no immediate action, giving the operator an opportunity to improve its safety record based on the remedial measures the operator put forward at the meeting.
13It is indicative of the general commitment of the trucking industry to safety that, as of January 2018, of approximately 56,000 carriers operating in Ontario, 85.8% of carriers had a 15% or less VR and approximately 96% were below the first intervention level of 35% VR. Only 264 carriers exceeded 70% VR, which is 0.46% of the total. The appellant falls within the group over 70% and has done so for some time.
The Appellant’s Record
14According to the evidence of Cynthia Cameron, a co-owner of the appellant, the appellant has been in the trucking business for three generations. While there has been a historical focus on operating tow trucks, more recently the appellant has gotten into the business of moving modular homes and offices, such as the type of modular office that might be found on a construction site. She and her brother took over the running of the business from their father, with her brother having responsibility for on-road operation and trucks and drivers and Ms. Cameron having responsibility for office management, accounting and record keeping.
15Mr. Donohue prepared a history of the appellant’s operation for the Registrar’s consideration prior to the most recent action against the appellant. It shows that the appellant has held a CVOR since November 1986. After two years of operation it reached the first intervention point and received a warning letter. It received a second warning letter in 1990 and another in 1998. Further warning letters were issued in 2000, 2005, 2007 and 2014. There was no improvement to its record following the 2007 warning letter. In fact, its record deteriorated over the next two years to over 100% VR, resulting in a seven day suspension on July 16, 2009. The appellant failed a Facility Audit in 2008 and a subsequent Facility Audit in 2011. By 2012 the appellant’s safety rating had deteriorated again to around the 85% VR and it was called in for an interview.
16Starting with a Show Cause Meeting with Deputy-Registrar prior to the 2009 suspension and continuing through to the Show Cause Meeting on July 17, 2018 prior to the issuance of the current Order, the appellant hired safety consultants who assisted it in producing a number of action plans setting out the steps it intends to take to correct its safety record. The 2009 Action Plan promises, among other things:
a. The appellant will order drivers’ abstracts every six months for all of its existing drivers.
b. The appellant will review its own CVOR abstract every month.
c. New drivers will undergo a road test and existing drivers will be tested once a year.
d. The appellant will implement progressive discipline for drivers with repeat infractions.
17The appellant produced a “Safety Action Plan” for its 2012 interview. That plan contained the same provisions noted above from the 2009 plan with the annotation “Already in place” in the implementation column. In June 2018, the appellant hired a consultant, Robert Riddell, to help it address its safety record. In his evidence, Mr. Riddell talked about the Safety Action Plan he had produced. When asked if any the provisions listed above from the earlier action plans were being implemented, he stated that he found no evidence of that in his review of the company.
18Ms. Cameron testified that the essential difference between Mr. Riddell and the previous consultants is Mr. Riddell’s commitment to remain in his consulting role to implement his action plan. Of concern to me, was the implication in her evidence that the appellant was not responsible for its failure to implement the safety action plans because the previous consultants had not remained to guide them.
Hiring of Mr. Riddell
19Due to health issues, both her own and her father’s, Ms. Cameron was not involved in the day to day operation of the appellant for several years. She came back to work in April 2018. She reviewed the appellant’s CVOR abstract and noted a high % VR. She decided that action was necessary improve the safety record. She met with a consultant recommended by her insurance company but did not feel comfortable. She then asked around and was referred to Mr. Riddell in early May, 2018. Mr. Riddell started his review of the company in June 2018. Almost as soon as he had completed his review of the appellant, the Registrar served a Notice of Cancellation and Seizure. The focus of the company then shifted to addressing the Registrar’s concerns.
20Mr. Riddell has an impressive background in the CVOR system. He is a licensed mechanic. He joined the MTO in 1980 as a transportation enforcement officer, ultimately becoming a facility auditor in 2000 until his retirement in 2010. In 1995 he qualified as an instructor for the MTO and teaches both MTO employees and police officers on the workings of the CVOR system. It is clear from both the results of the Show Cause meeting after Mr. Riddell was hired and from the submission at the hearing, that Mr. Riddell is highly respected by the Registrar.
21In his evidence, Mr. Riddell outlined the remedial steps he has taken and his proposed course of action. His first step was to review the appellant’s CVOR abstract. He then conducted the equivalent of a Facility Audit, applying the same standards. He found that the appellant’s paperwork was in reasonably good shape but had some gaps. In particular there were no records relating to road tests or driver abstracts and no progressive discipline policy – all things the appellant had undertaken to implement in previous meetings with the Registrar.
22Following his review, Mr. Riddell designed forms and policies for the appellant. He improved its recording of collisions, both at fault and not at fault. He developed forms to record convictions and roadside inspections, again with driver comments or room to review driver action. The focus of the forms was to ensure that drivers understood their actions as part of an improvement plan.
23Mr. Riddell developed a 23 point pre-trip inspection form. He then provided driver training sessions with a PowerPoint presentation outlining the CVOR system and a practical component to educate drivers on how to do daily trip inspections. He trained the drivers to do their trip inspections in a sequential manner proceeding from each check to the next check item logically. He trained drivers to conduct visual vehicle checks at each stop to ensure that there had been no change to the vehicle from the daily trip inspection. Drivers were shown how to check brake travel and determine if the brakes are out of adjustment. They were also given a handy rule of thumb to assess the severity of a leak in the air brake system. As of the date of the hearing, all driver training and road checks had been completed.
Recent Significant Events
24The Registrar points to several recent events that cause concern about the safe operation of the appellant. These consist of several accidents causing extensive property damage and injuries, and two incidents where wheels came off vehicles towed by the appellant’s tractor units.
25In January 2018 and again in June of 2018, two vehicles being towed by tractor units owned by the appellant suffered wheel separation incidents. The first incident, on January 3rd, involved a vehicle travelling north on Highway 400. A motorist drew the driver’s attention to the fact that the towed vehicle had lost a wheel on the left rear axle. The driver exited Highway 400 onto Highway 89 and travelled a further seventeen kilometres before pulling into a motel parking lot. A complainant had called the police about the incident. When the police officer arrived, the second wheel on the left rear axle had separated and the vehicle was resting on the brake drum. The driver justified driving seventeen kilometres with a missing wheel by saying there was nowhere safe to pull off. The officer pointed out that the driver had passed several parking lots along his route.
26In preparing the Wheel Separation Report, the officer noted the operator as “Gervais Towing & Recovery.” A conviction was apparently registered in the name of Gervais Towing & Recovery. The report records the appellant’s CVOR number and the appellant did not deny that it owned the tractor unit and employed the driver. Despite this, Mr. Riddell took the position that this incident had nothing to do with his client, the appellant, Gervais Motors Limited, and that this incident should not be recorded on the appellant’s record.
27It is clear from the record that the appellant operated under the name “Gervais Towing & Recovery.” In its submissions to the Registrar prior to the June 2009 suspension, the appellant included a written submission. This submission contained financial and other data, including five invoices, each one having as its header, “Gervais Towing & Recovery Division of Gervais Motors Ltd.” In light of these invoices, the appellant cannot disown the name Gervais Towing & Recovery.
28I find Mr. Riddell’s reasoning that this incident should be excluded from the appellant’s record to be fundamentally unsound. The standard I have to apply in finding facts is on a balance of probabilities. Even if I were to apply the higher criminal standard to this incident, I would have no hesitation in finding that the appellant must carry the responsibility for the incident and that it is properly part of its record. The appellant appears to agree. At a Show Cause meeting on July 17, 2018, Ms. Cameron advised the Deputy-Registrar that the driver had been given a one week suspension for the incident.
29The second wheel separation incident occurred on June 22, 2018. In this incident, one of the appellant’s trucks was towing a flatbed trailer westbound on Highway 417 in Ottawa. A police officer observed a wheel off incident and reported it. The responding officer exited the highway at exit 88 and saw the tractor-trailer unit missing two right rear wheels. One detached wheel remained in the vicinity of the vehicle and one was found about 100 feet away. Mr. Gervais, the other co-owner of the appellant, was on the scene with the driver. The officer filed a Wheel Separation Report.
30The appellant took the position that there is no evidence that the truck was operating on the highway when the wheels detached. It urged on me that I should not make any findings as the charges arising out of the incident are still before the courts. I find there is ample evidence that the tractor-trailer was operating on the highway at the time of the accident. Firstly there is the observation of the reporting officer. Secondly, there is the driver’s admission, after being cautioned, that he had been driving westbound on the highway at the time of the incident. Finally, there is the fact that when the investigating officer arrived at the scene, one wheel was found some distance away from the parked rig.
31In his evidence, Mr. Donohue testified that wheel separations are rare events. In his view, to have two wheel separations within approximately six months is an extremely rare occurrence. It raises safety concerns as there have been instances where wheel separations have caused deaths.
32The Registrar also pointed to recent accidents. One accident, dated June 22, 2018, the same date as the wheel separation, involved five vehicles, two of which were demolished, resulting in serious injuries to the occupants. From the police accident report, it appears that the appellant’s driver rear ended a stopped or slow moving vehicle driving it forward into other stopped vehicles and out of the trucks line of travel. The truck then hit a stopped vehicle further forward in the queue, driving it into the first vehicle. The two vehicles hit by the truck were demolished and their occupants suffered serious injuries.
33The appellant takes the position that the charges arising out of this incident are still before the courts and I should not make a finding that fault should be assigned to the appellant arising out of this accident. Whether as a result of Mr. Riddell’s intervention or on its own initiative, the appellant conducted an internal investigation. The driver alleged that the brakes had failed. The appellant had the brakes tested and found them operative. The driver was suspended for two days. On these facts, I find that this accident was properly recorded in the CVOR record as an at fault accident on the part of the appellant.
34On February 22, 2018, the appellant’s truck swung left out of the right lane to make a right turn. It struck a vehicle in the left lane. The accident was recorded as an at fault accident against the appellant on the basis of an improper lane change. The appellant points to s. 141(9) of the Act for the proposition that long vehicles, such as the one involved in this accident, may swing into the left lane to facilitate a right turn and, as a result, the turn in this case was not improper and no fault should attach to the appellant. I accept that s. 141 (9) provides that long vehicles may need to cross lane markings to negotiate right turns, but I reject the suggestion that this subsection relieves the driver of all of the other obligations inherent in making a proper lane change, and, in particular, to check for vehicles in the lane into which the long vehicle intends to swing. The subsection does not give long vehicles the right to barge other vehicles out of the way because they are making a right turn. Crossing the lane markings is not an offence, but crossing the lane markings and barging into a vehicle already in the lane is.
35Two accidents occurred on private property: one on January 22, 2017 and one on September 27, 2017. The appellant argues that accidents on private property should not be recorded on its CVOR record as they do not involve safe operation on the highway. The Registrar points to the fact that accidents on private property are reportable under the Act pursuant to s. 199(1). The Registrar drew my attention to a decision of the Ontario Court of Appeal in this regard, R. v. Hajivasilis, 2013 ONCA 27, for this proposition. The Registrar further relies on s. 5(1) 8 of O. Reg. 424/97 which mandates that all accidents form part of a CVOR holders safety record.
36I am persuaded by the Registrar’s arguments. It is an integral part of the operation of commercial vehicles that they are operated on private property to conduct business, for example, to make deliveries. The CVOR system is designed to ensure that commercial vehicles are operated safely and it would be a false distinction to allow unsafe operation in the vicinity of other vehicles simply because they are on private property, but record shortcomings on the highway. Accidents on private property are reportable and the Registrar is obliged to record them on the CVOR record.
Proposed Exclusions from the CVOR Record
37Mr. Riddell reviewed the appellant’s CVOR abstract and the record of two recent incidents where towed vehicles had lost wheels. The first thing he noted was that for a crucial period of time, the CVOR record substantially understated the actual mileage operated by the appellant. Following discussions with the Mr. Donohue and Mr. Moore, the parties agreed that the mileage was understated and that applying the new mileage figure, the % VR for the period from May 2016 to May 2018 would be 82.91% not the 91.44% the Registrar had based his initial decision on. As of December 10, 2018, the record is now 85.7%.
38In reviewing the rest of the CVOR abstract, Mr. Riddell took the position that there are a number of events that should not have been included in the record. He focussed on the wording of the Commercial Vehicle Operators’ Safety Manual (the “Manual”), a document outlining the CVOR system and the duties an obligations of operators. In the “Overview” section of the manual, its scope is defined in the following terms:
This guide applies to Ontario operators of commercial motor vehicles that are:
Trucks, tractors or trailers, or a combination of these vehicles, that have a registered gross vehicle weight or actual weight of more than 4,500 kilograms
Tow trucks, regardless of registered gross weight or actual weight
Buses with a manufactured seating capacity of 10 persons or more, excluding the driver
Accessible vehicles and school-purposes vehicles, depending upon use
39Taking a strict interpretation of the wording of the guideline, Mr. Riddell reviewed the reports relating to vehicle defects, particularly defects placing vehicles out of service which counted against the %VR. In his evidence, he took the position that if a vehicle is found with a defect, but it is not a truck, tractor or trailer as those terms are defined in the legislation, then the defect should not be counted in the appellant’s CVOR rating. He characterized towed vehicles which do not fall within the definition of “trailer” as “devices” and argued that towing defective devices, while possibly constituting an offence under the Act, should not be recorded on the CVOR abstract. He identified devices on the roadside inspection reports as “Vehicle Type – Other” and bearing the plate designation of “000” or with no entry for the plate number. At least two devices carried Quebec plates, Quebec requiring that anything towed on the highway be plated.
40For the most part, the towed vehicles Mr. Riddell referred to have been given a vehicle type designation of “MD,” “Mobi,” or “Offi.” He testified that these terms refer to modular or mobile homes or construction site office trailers. Where the vehicle type designation is blank, the narrative in the “Remarks” box indicates that what is being towed is a mobile office or modular home. Mr. Riddell relied on the definition of “trailer” in the Act, which excludes a “mobile home.” The term “mobile home” is defined as a vehicle: “that is designed and used as a residence or working accommodation unit and exceeds 2.6 metres in width or eleven metres in length.”
41The Registrar points to the elements that he is mandated to record on the CVOR record by virtue of O. Reg. 424/97. These elements are delineated in s. 5(1) and point 9 states: ‘The results of any inspection under section 82 or 82.1 of the Act or any similar inspection of a commercial motor vehicle operated by the operator, or a vehicle drawn by it.” The word “vehicle” is defined in the Act to include “a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car.” The Registrar submits that those units identified by Mr. Riddell as devices still fall within the definition of vehicle and, by virtue of the regulation, on-road defects are properly recorded on the appellant’s CVOR record.
42I am persuaded by the Registrar’s arguments, both from the perspective of the plain and ordinary meaning of legislation, and from the broader perspective of the goal of the Act and the CVOR system to promote highway safety.
43Mr. Riddell’s interpretation, and by extension the appellant’s submission, turns solely on the wording of the Manual and its overview stating that it applies to “trucks, tractors or trailers.” The Manual does not have the force of regulation. It is a guideline for CVOR operators. It is the legislation, particularly in this context O. Reg. 424/97, that dictates the parameters of the CVOR system. Any discrepancy between the Manual and the legislation is resolved by the wording of the legislation. That wording is clear. A deficiency in any vehicle operated by a CVOR holder is to be recorded on the CVOR record, regardless of whether the vehicle is a trailer or a device.
44Mr. Riddell’s interpretation also defies common sense. In his evidence, Mr. Donohue addressed the purpose of the CVOR system. He characterized it as a predictive model for anticipating unsafe on-road performance and defining stages for regulatory intervention to assist CVOR holders is ensuring their operations are safe. If we are to accept Mr. Riddell’s interpretation, a whole section of the trucking industry, the section focussed on towing “devices,” would be exempt from the requirement to operate safely because there would be no record of their unsafe operation. Thus, unsafe operators would not come to the attention of the Registrar and the intervention stages would be rendered ineffective. There would be no warning letters, no Facility Audits, no interviews and no sanctions for permitting unsafe vehicles to operate on the highway. In my view, this outcome is inconsistent with the purpose of the Act and regulations which is to ensure highway safety.
Suspension below 100% VR
45The appellant submits that its true % VR at the time of Mr. Donohue’s review of its record was 82.91% and not the figure relied on by the Registrar, 91.44%. It points out that this number is below the intervention level for an interview such that, had the true number been known at the time, the Registrar would not have issued the Notice of Cancellation and Seizure. It points to the Manual setting intervention levels at 35%, 50%, 85% and 100% VR. I do not agree that the intervention levels are so rigid.
46The authority of the Registrar to suspend or revoke a CVOR Certificate is set out in s. 47 of the Act. Of particular note is s. 47(1)(f) which states that the Registrar may act if he 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 this Act, the regulations and other laws relating to highway safety.
47In the Manual, the Registrar has set out the parameters that will be applied when interpreting s. 47(1)(f). It states that the Deputy-Registrar may apply triggering parameters, other than the % VR levels referred to, in applying a sanction. In particular, the Manual cites significant events such as impoundments, wheel separations, unpaid fines, or chronic non-compliance as triggering factors for a sanction. In my view, such language is appropriate. It sets a policy for the application of a broad discretion given to the Registrar to consider “any other information that the Registrar considers relevant.” It does not limit or extend the scope of the legislation.
48The Registrar submits that the appellant has had a number of recent significant events and a history of chronic non-compliance. I agree. Even taking into account Ms. Cameron’s objections regarding warning letters and audits over 20 years ago, its recent record shows that, despite a 2009 suspension and a 2012 interview, its ongoing VR since 2016 has given it the distinction of being one of the worst 0.4% of trucking operators in Ontario. In addition, it has had two recent wheel separations, not to mention a serious multi-vehicle accident in June 2018.
49It would appear that that the 2009 suspension and the 2012 interview failed to bring home to the appellant the fact that it needs to undergo a major change in its approach to on-road safety. I am of the view that a further sanction is warranted. I note that the initial approach of the Registrar was to cancel the appellant’s CVOR. Following the Show Cause meeting on July 17, 2018, with the action plan prepared by Mr. Riddell and the proof that Mr. Riddell was on a long-term retainer, the Registrar decided that a fourteen day suspension was appropriate.
50While I am not bound by the sanction imposed by the Registrar and may impose a greater or lesser sanction, I note Ms. Cameron’s evidence that she recognized the need for improvement prior to the Registrar’s intervention and had taken steps to address it. In doing so, she hired a respected safety consultant and was in the process of making the necessary adjustments to the appellant’s culture to promote safety. Notwithstanding that there has been a recent increase in the %VR to 85.7% by December 10, 2018, it appears the first steps have been taken. I find that a 14 days suspension is appropriate.
ORDER
51Pursuant to s. 50(2) of the Act, I find that there is reason to believe that the appellant will not operate a motor vehicle safely on the highway. I confirm the decision of the Registrar to suspend the CVOR Certificate and the plate portions of permits for all commercial motor vehicles and trailers issued to the appellant for a period of fourteen days.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: February 4, 2019