1297486 Ontario Ltd. v. Registrar of Motor Vehicles, 2019 CanLII 32302

Licence Appeal Tribunal

Date: 2019-03-12

Appeal from a Cancellation and Seizure Order of the Registrar of Motor Vehicles under the Highway Traffic Act

Between:

1297486 Ontario Ltd.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Adjudicator: Sandeep Johal, Member

Appearances:

For the Appellant: Sukhwinder Gill, Agent

For the Respondent: Patrick Moore, Counsel

Interpreter: Darshan Banait

Heard in Toronto: September 26, 2018

OVERVIEW

1The appellant, 1297486 Ontario Inc. appeals the Cancellation and Seizure Order (the “Order”) of the Registrar of Motor Vehicles dated February 20, 2018. The effect of the Order is to terminate the appellant’s right to operate trucks on Ontario highways. The Registrar issued the Order because of concerns over the appellant’s safety record. The appellant does not deny that it has a poor safety record.

2The appellant filed a Notice of Appeal on March 29, 2018 and in its Notice of Appeal it asks me to take into account that it has passed a facility audit twice and once it received a failing grade. Furthermore, the appellant seeks to operate one truck going forward.

ISSUE

3The question I must decide is set out in s. 47(1)(f) of the Act:

a. Is there reason to believe, having regard to the safety and compliance record of the appellant, and any other relevant information, 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?

RESULT

4Based on the evidence, I find that there is reason to believe the appellant will not operate a commercial motor vehicle safely and accordingly, I confirm the Cancellation and Seizure Order.

THE SAFETY REGIME

5Sherry Werner has been a Carrier Safety Rating Administrator since 2001. She testified about the Commercial Vehicle Operator’s Registration (“CVOR”) safety rating process. She testified that the CVOR is an automated system that looks at the operators’ record over a 24-month period and it is used to monitor commercial operators in Ontario and assigns them a public safety rating. The goal of the CVOR system is to improve road safety for all users of Ontario highways by having an effective monitoring and intervention system for operators. Poor performance may result in the loss of privileges to operate commercial motor vehicles.¹

6Trucking companies in Ontario are assigned a safety rating, that is, a maximum number of infractions before the Registrar will seek to take action. The rating is based on the number of kilometres the company will travel in a twelve-month period in Ontario. It has an element of trust in as much as the Registrar relies on each company self-reporting the expected mileage. Companies with higher mileage will be permitted more infractions and vice versa.

7Infractions in the form of moving and safety violations, at-fault collisions and vehicle safety violations are tracked in a computer database. The information is entered from police and road safety officer reports. Infractions are assigned points and the total number of points, from time to time, is expressed as a percentage of the total permitted points. 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.

8There 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 advises the company to take corrective action. When it hits 50%, the Registrar may send an auditor out to audit the company’s operation. At 80% there is an interview by the Ministry to have the operator come to the Ministry’s office and present a viable action plan and at 100% the Registrar will consider sanctions ranging from suspension to cancellation.

9As of January 2018, of approximately 49,000 carriers operating in Ontario, 85.7% of carriers had a 15% or less % VR and approximately 97% were below the first intervention level of 35% VR. Only 60 or 0.11% of carriers fell within the 85.1-100% VR and only 62 carriers, 0.11% of the total number, exceeded 100% VR². The appellant fell within the group of 0.11% of carriers that has a VR in the range of over 100%.

APPELLANT’S RECORD

10The appellant began operations in 1998 and operated 7 vehicles. In September 2006, February 2012 and February 2014 it had passed the 35% VR trigger level and received a warning letter on each of those occasions. In December 2015 an audit was conducted which the appellant failed and by September 30, 2017 it had a 101.06% VR.³

11On October 11, 2017 the Registrar sent a letter by courier to the appellant’s address and requested an interview with the appellant to discuss the carrier’s safety record and for the appellant to propose steps to improve its safety operating procedures.⁴ The appellant did not attend on the scheduled interview date and the next day the Registrar issued a Notice of Cancellation and Seizure and invited the company once again to meet on November 28, 2017 to discuss its safety record. Sukhwinder Gill, president, attended on behalf of appellant company and H.D., a consultant retained by the appellant also attended.

12At the meeting, it was reported to the Registrar that the 7 commercial vehicles operated by the appellant were in fact not owned by the appellant’s company but were transferred to another company and A.P. was the director of that company. A.P. was also responsible for the drivers.⁵ However, the company that owns the commercial vehicles was not a CVOR registrant.⁶ As a result of this meeting it was unclear to the Registrar who was the operating the company. One of the requirements of having a CVOR is that the holder of the CVOR is responsible for all aspects of the company’s operations which include the drivers, the trucks and the goods.

13The appellant testified that he was having financial problems in 2015 and entered into a partnership with another company to operate under his CVOR and the other company would supply the trucks and take care of operations and maintenance. The appellant would receive a 5% commission for finding gravel loads for the trucks to haul. During this time the appellant did not keep any records with respect to logs, repairs or inspections and he had no control over any of the drivers.

14At the meeting with the Registrar, the appellant produced a written action plan that included scheduling a safety training meeting on December 3, 2017, downsizing the fleet to one truck effective January 1, 2018 and revising its disciplinary action plan for its drivers.⁷

15After considering Mr. Gill’s submissions and the written action plan, the Registrar decided that he was not prepared to consider a reduction of operations to one truck until there was an understanding of who is responsible for the safety record. The Registrar advised that further information would be required, namely the contract documents between the appellant and the company that owned the trucks and a list of all drivers and insurance. Once that information was provided a decision would be forthcoming.

16After reviewing the information provided by the appellant the Registrar issued a Cancellation and Seizure Order dated February 20, 2018 to the appellant for the cancellation of the CVOR and the plate portion permits for all commercial vehicles operated by the appellant.⁸

17In reaching its decision, the Registrar considered the appellant’s safety rating over a 24-month period from October 2015 to October 2017 which indicates the problem areas were high rates of collisions, convictions and inspections. Safety ratings are broken down into subcategories: Collisions, Convictions and Inspections. These categories are then weighted and combined to give a final VR – 40% for collisions and convictions and 20% for inspections. The appellant scored 93.23% in the collision category, 85.02% in the convictions category and 118.61% in the inspections category. It had six collisions and five of them since June 2017. A total of twelve convictions in a 24-month period related to moving and safety violations.

ANALYSIS

18The Registrar has the onus to prove on a balance of probabilities or that it is more likely than not, 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.

19It is my finding that the Registrar has done so for the following reasons.

20The appellant has received several warning letters once its % VR score surpassed 35% which would have allowed for the appellant to make changes to its business practices in operating its company and to take remedial measures to bring its % VR score into a more acceptable level. It did not do so.

21In December 2015, an audit was conducted which resulted in a failed score. In the 21 months following the failed audit to September 2017 the appellant’s overall violation rate soared to 101.06%. A total of 12 convictions were recorded in a 24 month period since the failed audit and there were 5 collisions involving the appellant’s trucks since June 2017 alone.

22The appellant submits that it made mistakes in the past and these mistakes will not be made again. Furthermore, the appellant plans to get help with safety measures and wants to operate one truck under his CVOR.

23At the interview with the Registrar the appellant presented an action plan to address the safety concerns and the high % VR rate. However I am not persuaded that the action plan as presented addresses the safety concerns presented by the Registrar.

24The appellant’s safety plan does not address how the previous safety violations will be addressed going forward. The plan⁹ does not address the violations it has recorded in the previous 24 months during which its % VR rating exceeded 100% and how those violations will be reduced. Nor has the appellant addressed in its plan how it will ensure the trucks are to receive timely maintenance to address its safety violations and nor has It has addressed how it will train its drivers to reduce the high number of collisions. All of which are a serious safety concern to other road users.

25The appellant’s plan proposes to reduce the operation of its company to one truck, however I am not provided with any submissions or evidence on how the operation of only one truck will address the safety concerns raised by the Registrar or how the operation of one truck would minimize the risk to other road users.

CONCLUSION AND ORDER

26Having considered all of the evidence, I find that there are reasonable grounds 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. Based on the appellant’s % VR score, high number of collisions and its action plan that lacks the details to address these concerns I confirm the Cancellation and Seizure Order of the Registrar dated February 20, 2018.

LICENCE APPEAL TRIBUNAL

________________________

Sandeep Johal, Adjudicator

Footnotes

1. 1Commercial Vehicle Operators’ Safety Manual, Respondent’s Exhibit Book Tab 14 at page 187.
2. 2Statistics – 2018, Respondent’s Exhibit Book at page 274.
3. 3Safety Record Review, Respondent’s Exhibit Book at page 1.
4. 4Interview Letter dated October 11, 2017, Respondent’s Exhibit Book at page 94.
5. 5Show Cause Meeting of November 28, 2017. Respondent’s Exhibit Book at page 123.
6. 6Carrier Safety Record as of November 29, 2017. Respondent’s Exhibit Book at page 148.
7. 7Supra Note 5, at page 125.
8. 8Respondent’s Exhibit Book at page 146.
9. 9Respondent’s Exhibit Book at page 125.