Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act
Between:
Gavin W. Galbraith
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dawn Kershaw
Appearances:
For the Appellant: Gavin W. Galbraith, Self-represented
For the Respondent: Patrick S. Moore, Counsel
Hearing held in person on: August 8, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1An in-person hearing was held on August 8, 2019 to consider the appellant, Gavin W. Galbraith’s, appeal of the June 28, 2019 15-day impoundment of his 3 axle 1994 Kenworth commercial truck (the “truck”) after a routine inspection found what the Registrar of Motor Vehicles (“Registrar”) asserted was a “critical defect”. The truck was due to be released on July 13, 2019.
LAW
2A commercial vehicle may be impounded if on inspection it is found to have a “critical defect”, as defined under section 82.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (“Act”) and section 7(2) 4. of O. Reg. 512/97 (“Regulation”). In this case, the Registrar impounded the truck, alleging that there was a critical defect because when inspected, more than 50% of the brakes’ push rods travelled more than ¼” beyond the allowable measurement.
3The owner of a vehicle which has been impounded because of a critical defect, pursuant to s. 82.1 of the Act may, pursuant to s. 50.3, appeal the impoundment only on one of the two grounds set out in s. 50.3(3) of the Act. In this case, the appellant asserts, pursuant to section 50.3(3) that the truck did not have a critical defect when it was impounded. The onus is on the appellant to establish this.
4Pursuant to subsection 50.3(5) of the Act, I may either confirm the impoundment or order the Registrar to release the motor vehicle.
ISSUES
5The issue to be determined is whether:
a. the truck had no critical defects at the time of the inspection under section 82.1.
CONCLUSION
6On the evidence before me at the hearing, I find that under section 82.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (“Act”) and section 7(2) 4. of O. Reg. 512/97 (“Regulation”), the truck had a critical defect, as defined in the Regulation, and therefore the impoundment is confirmed.
EVIDENCE AND ANALYSIS
7On the afternoon of June 28, 2019, Inspector Sean Stephens from the Ministry of Transportation was conducting routine inspections at the Putnam inspection station off Highway 401. The truck in question was being driven by the appellant’s employee, Christopher Hulme, and was subject to a critical defect inspection as a commercial vehicle because of its weight.
8As part of that inspection, Inspector Stephens inspected the truck’s brakes. He explained that when brakes are applied, one thing that happens is that air moves through the brake chamber and pushes out a push rod. The Regulation mandates that to assess whether the brakes are compliant with the safety requirements, one must measure the travel distance of the push rods.
9To determine the permissible distance the push rods can travel, Inspector Stephens testified he had to first figure out the clamp size on each of the three axle’s brakes. He testified that for a clamp type 20, the maximum distance the push rod is permitted to travel is 1 ¾ inches, and for clamp type 30, the limit is 2 inches. The undisputed evidence is that in this case the steer (first) axle was a 20 clamp, and the second and third axles were 30 clamp.
10Inspector Stephens testified that to conduct the inspection he gave instructions to Mr. Hulme. He had him release the parking brakes and ensured that the air pressure was between 90 and 100 psi on the supply gauge. In this case, he measured it at 96 psi. He then went under the truck and marked the location of the push rods at the base of the air brake chamber with soapstone. He then told Mr. Hulme to apply the brakes as hard as he could. He went back under the truck and, using a Ministry-issued Lufkin tape measure, he measured the distance the push rods travelled or, in other words, how far the mark he had made moved from the base of the chamber.
11Inspector Stephen’s measurements of the distance the push rod travelled, and the permitted distances, were as follows:
First (steer) axle
measured
permitted
right side 2”
1 ¾”
left side 1 ¾”
1 ¾”
Second axle
right side 2 ¼”
2”
left side 2 ½”
2”
Third axle
Right side 2 3/8”
2”
left side 1 ½”
2”
12Inspector Stephens testified that a critical defect is defined as more than 50% of the brakes being ¼” or more beyond the permitted maximum. The above measurements meant that on the first axle where the limit is 1 ¾”, the right side was out by ¼” and the left side was at the maximum. On the second axle, on the right it was out by ¼” and on the left it was out by ½”. Finally, on the third axle, it was 3/8” out and on the left it was below the permissible limit. He testified that because 4 of 6 brakes were ¼” or more out, he thought there was a critical defect.
13To verify his findings, Inspector Stephens then did fixed point measurements. With the pressure at 99 psi, he measured from the face of the brake chamber to the squared off part of the yoke end at the end of the push rod, both with the brakes released and with them fully engaged. He testified that some people measure to the clevis pin, but he does not because it moves and has a thickness to it, whereas the squared off end is a fixed point. The appellant asked Inspector Stephens if any rust or debris could interfere with the measurements and he agreed those could, but he testified that if there is any he cleans it off.
14Once Inspector Stephens both measured with the brakes released and with them fully engaged, he then did the math between the two measurements for each side of all three axles and found that the resulting numbers were the same as those he had taken using the chalk mark. All the measurements were recorded in the notes he took at the time of the inspection, which were introduced as evidence.
15After taking his second set of measurements, because he continued to think there was a critical defect, Inspector Stephens had another inspector, Officer Untch, go under the truck with him to verify his measurements. Officer Untch testified that the two of them went underneath the truck on their backs head to head, each on a “creeper” (a wheeled platform). He watched Inspector Stephens measure, and testified that he agreed with his numbers.
16I find that there was a critical defect as defined by the Act and Regulation. The measurements showing that more than 50% of the brakes were ¼” or more beyond the permissible limit were not only confirmed by Inspector Stephens measuring more than once, but they were also confirmed by Officer Untch who has been doing inspections for more than 20 years and who has been an enforcement supervisor since 1998.
17While Mr. Hulme testified that a truck driver never engages the brakes fully as he was requested to do at the inspection, Officer Untch testified that the intent is to ensure that the brakes will work as required in an emergency situation. While Mr. Hulme testified that he and the appellant did their own testing of the brakes after the impoundment and there was a ½” difference in the measurements when 60 pounds of pressure was applied versus pushing the brakes as hard as Mr. Hulme could, Officer Untch testified it is standard practice to have a driver push the brakes as hard as he or she can to simulate an emergency situation. Even Mr. Hulme agreed that if, for example, a child walked out in front of his truck, he would apply the brakes as hard as he could.
18While Mr. Hulme testified that he did a pre-trip inspection on the morning of this inspection, his inspection was visual. There was nothing to suggest that Mr. Hulme did not do his pre-trip inspection as he was used to doing it. However, his brakes inspection was visual, and he did not take any measurements.
19Mr. Hulme testified that there is a brake stroke indicator bolted to the brake chamber bracket tree, which shows when the brakes are or are not applied. The yoke is a flat piece of metal with two indicator pins on it that shows the space between the two pins. Mr. Hulme testified that if something is not correct, the clevis will be beyond the pin, which he said was not the case when he did his pre-trip inspection. He testified that he visually looked at all the brakes, shoes and drums and with the spring brakes applied, he looked to see where the clevises were and found them to all be where they should be.
20While there is nothing to discount Mr. Hulme’s evidence with respect to his visual findings on his pre-trip inspection, not only was his visual inspection done without the brakes fully engaged, but I also find no evidence to discount the measurements that were done at the routine inspection several hours later with the brakes fully engaged. As such, I find there was a critical defect as defined by the Act and Regulation, and the appellant has not satisfied his onus to prove that there was no critical defect.
21The 15-day impoundment is confirmed.
ORDER
22Pursuant to subsection 50.3(5) of the Act, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Dawn Kershaw, Vice-Chair
Released: August 15, 2019