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Court File and Parties
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**Date:** 2019-03-25
Appeal from a Suspension and Seizure Order of the Registrar of Motor Vehicles under the [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) R.S.O 1990 c. H.8
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**Between:**
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Malyon Excavation Ltd.
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: Douglas Lee, Counsel
**Court Reporter:** Aimee Van Vlack
**Heard in Kingston:** January 31, 2019
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OVERVIEW
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[1] The appellant, Malyon Excavation Ltd., holds Commercial Vehicle Operator’s Registration Certificate (“CVOR”) # 060-025-839, giving it the right to operate heavy vehicles 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 22, 2018, pursuant to [s. 47(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec47subsec1_smooth)(f) and (g) of the [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html), 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 7 days. The appellant appeals that order to the Licence Appeal Tribunal pursuant to [s. 50](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50_smooth) of the Act.
[2] The Order is not the first time the Registrar has proposed to sanction the appellant for a poor safety record. On October 5, 2015 the Registrar issued a Notice of Cancellation and Seizure and invited the appellant to a Show Cause meeting to discuss its poor safety record. At that time, the appellant had exceeded its on-road safety infractions limit and the Registrar proposed to cancel its CVOR. Based on submissions the appellant made at the meeting, the Registrar decided to permit the appellant to continue operation subject to performance conditions for a period of one year, from November 3, 2015 to November 2, 2016.
[3] The Registrar initially determined that the appellant had complied with the imposed conditions, but a file review in June 2018, triggered by a rise in the appellant’s %VR to 85%, showed that it had not met the imposed conditions. The discrepancy was the result of a lag in the manner in which events are recorded, especially convictions. The Registrar relies on the appellant’s failure to abide by the imposed conditions as grounds to suspend the appellant’s licence.
[4] The Registrar also relies on a generally poor safety record over a long period of time, which he referred to as a chronically poor safety record. Starting in 1989 to present, the appellant has been issued five warning letters regarding a deteriorating safety record, has attended an interview in January 2015, has been subject to conditions in November 2015 but has generally failed to improve its safety rating significantly.
[5] The appellant asserts that it has made a serious commitment to safety. Starting in 2014 it hired a respected safety consultant; it has amended its practises to focus on vehicle maintenance; and it has hired an outside company to inspect its trucks to ensure that no safety related defect is overlooked before a truck takes to the road. The appellant points to a recent significant improvement in its safety rating showing that the measures it now has in place are taking effect. The appellant also points to the fact that it has passed two Facility Audits conducted by the Registrar. On the first audit, in 2009 it achieved an excellent rating and in the second in 2014 it achieved a pass.
# ISSUES
[6] The 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](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html), 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
[7] I 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 7 day suspension.
# ANALYSIS
## Documentary Evidence
[8] At 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.
[9] During the hearing, the appellant produced an abstract of its CVOR record pulled from the Registrar’s database the day before the hearing. It showed a marked improvement in its safety rating. The Registrar objected to the admission of the document into evidence. He submitted that producing the document at the last minute was in breach of s. 9.2 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”) requiring disclosure ten days before the hearing and he was taken by surprise. The appellant argued that the document was relevant to the issues in dispute and was information from the Registrar’s records so he could hardly be taken by surprise.
[10] I decided to admit the document. While the Rules set a default position of ten days before a hearing for disclosure of documents to be used at the hearing they go on to give me discretion to order other disclosure dates. I note that this particular document was not in existence 10 days ago. It is relevant to the issue in dispute as evidence that the appellant’s remedial measures may be taking effect. Given the serious economic impact of a suspension on the appellant, it is in the interests of a just resolution of the matter that all relevant evidence be admitted provided there is no prejudice to the Registrar. I gave the Registrar time to review the document to be able to respond to it in a meaningful way.
minicounsel