Licence Appeal Tribunal
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, (Act) from a decision of the Registrar of Motor Vehicles pursuant to Section 47 and 47.1 of the Act to cancel the CVOR certificate(s) and the plate portion of permits for commercial vehicles and trailers.
Between:
Franklin Haulage Excavating Inc. Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION and ORDER
ADJUDICATOR: Luisa Ritacca, Member
APPEARANCES:
For the Appellant: John Tomasone, Legal representative for the Appellant Franklin Urgiles, President and Owner of Appellant
For the Respondent: Patrick Moore, Counsel
Heard: September 24, 2020 by Videoconference
Overview
1The Deputy Registrar of Motor Vehicles, by order dated January 16th, 2020, ordered the cancellation of Commercial Vehicle Operator’s Registration (“CVOR”) certificate, 137-426-138, issued to Franklin Haulage Excavating Inc., and that the plate portion of permits and the number plates be seized. The Order (the “Cancellation and Seizure Order” or the “Order”) was made pursuant to section 47 and 47.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The appellant, Franklin Haulage Excavating Inc. appealed the Order to the Tribunal by Notice of Appeal dated January 28, 2020.
2Pursuant to section 47 of the Act, the Registrar may cancel a CVOR certificate and seize the plates if the appellant’s safety record creates a reason to believe the appellant will not operate a commercial vehicle safely or in accordance with the law. On appeal, the Tribunal may confirm, modify or set aside such a decision.
3The issue before the Tribunal is whether the appellant’s safety record provides reason the 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?
Result
4The appellant’s safety record does provide reason to believe that it will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety. There is nothing in the evidence to suggest that the appellant is about to change its behaviour. I confirm the decision of the Registrar.
Evidence
5The Tribunal heard from two witnesses and received a number of documents from the parties. On its behalf, the Registrar called Sherry Werner, a Carrier Safety Rating Administrator at the Ministry of Transportation (“MTO”). Ms. Werner provided information with respect to the CVOR system generally, as well as evidence regarding the safety history of the appellant. Ms. Werner confirmed that she has been involved with the appellant’s file for several years.
6Ms. Werner explained that the purpose of the CVOR system is to identify safety concerns and address them, either by operator action or sanction by the Registrar before they become a major road safety concern. To do this the CVOR system tracks operator on-road performance. In Ontario, carriers must hold a CVOR to operate vehicles in excess of a certain weight threshold. Based on the size of a carrier’s fleet and the estimated kilometers of travel per year, a CVOR operator is assigned a violation rate. The goal is for the operator to maintain a low violation rate (below 30%). Operators’ violation rates are subject to increase when their vehicles are involved in at fault collisions, out-of-service safety defects identified on inspections, and highway traffic violations, resulting in convictions.
7Ms. Werner testified that the CVOR system automatically generates the violation rate for each operator based on data is collects from collision reports, inspections and conviction records. She said that operators with a 35% violation rate receive a warning letter from the MTO and those with a rate at 50% receive a facility audit. Operators with a 75% violation rate are invited to an interview, in addition to the audit. The MTO typically initiates sanction for those with a 100% or more violation rate.
8Ms. Werner explained that in her experience, early interventions typically result in successful rehabilitation of an operator. She also explained that about 97% of operators do not even come to the attention of the Registrar given their low violation rates.
9Ms. Werner testified that the appellant originally received a CVOR in December 2000 and that there have been ongoing issues with its safety status from at least 2009. Ms. Werner explained that the appellant’s overall violation rating in June 2018 had increased to 95.75%, resulting in the Registrar inviting the appellant to a show cause meeting with the appellant to discuss an action plan and possible sanctions. The appellant’s violation rating resulted from a number of at-fault collisions, out-of-service safety defects identified during inspections and a number of highway traffic violations. For example, Ms. Werner explained that as of August 2018, the appellant’s fleet had been involved in four at-fault collisions in a 24-month period. Further, as of that date, the appellant had an extremely high inspection violation rate (167.50%).
10The show cause meeting was held on August 27, 2018. This was the second such meeting with the appellant since 2016. Ms. Werner was present, together with the Deputy Registrar and the Program Standards Manager. Franklin Urgiles was there on behalf of the carrier, together with Zaf Iqbal, a safety consultant. Ms. Werner testified that Mr. Urgiles explained that he was dealing with personal issues at the time and that a majority of the safety issues identified by the MTO were as a result of problems with his drivers. He also suggested that he was not aware of all of the events set out in the CVOR records, but that in future he would make sure that his drivers bring him the records. Mr. Urgiles provided the Deputy Registrar with an action plan, which involved pre-trip inspection training for his drivers, defensive driver training and more frequent fleet inspections.
11Despite the action plan, the MTO proceeded with a cancellation proposal. On September 17, 2018, the Deputy Registrar issued a Cancellation and Seizure Order on the appellant. The appellant appealed the order to the Tribunal and following settlement discussions, the Deputy Registrar converted the Cancellation and Seizure Order into a Suspension and Seizure Order, dated December 7, 2018. (the “December 2018 Order”).
12Ms. Werner explained that the December 2018 Order suspended the appellant’s CVOR certificate for a period of 30-days, after which time the appellant would be subject to a number of specific performance conditions for a one-year period starting in January 2019. In particular, the appellant was not to:
a. Exceed an overall safety violation rate of 50% for a one year performance analysis period commencing January 2019;
b. Exceed an inspection violation rate of 50% for a one year performance analysis period commencing January 2019; and
c. Fail a facility audit conducted by the Ministry of Transportation.
13Ms. Werner testified that in the period following the 30-day suspension, the appellant’s overall safety violation rate did not improve and that upon completion a further safety record review in November 2019, the MTO concluded that the appellant had failed to adhere to the safety conditions imposed by the December 2018 Order, and that in particular, the appellant’s violation rate had increased in the 9-month period following its suspension.
14Ms. Werner indicated that the appellant’s violation rate had gone up to 146%, which was worse than at the time of 2018 assessment and imposition of sanctions. She testified that the violation rate increase was as a result of six at-fault collisions, several HTA violations and a number of poor inspection results for the 9-month period.
15Ms. Werner explained that from the Registrar’s perspective, the failure to conduct pre-trip inspections, the number of HTA violations, as well as the number of collisions was very concerning. At least two of the collisions reported for this period involved personal injury and several others involved driver misconduct like speeding or driving too close. Further, the poor inspection results were clearly as a result of drivers failing to conduct proper pre-trip inspections.
16Ms. Werner also explained that as of November 2019, the appellant had fines owing of more than $1,300.00. While the fines did not in and of themselves impact the appellant’s violation rating, they were factored into the decision to proceed with a Notice of Cancellation in November 2019.
17On behalf of the appellant, Mr. Urgiles was invited to a further show cause meeting in December 2019. He was advised of the unpaid fines and of the appellant’s violation rating. According to Ms. Werner, Mr. Urgiles noted that he had undergone a number of personal issues, but that those matters had settled and that he was now in a better position to address the safety concerns with respect to the appellant’s fleet and drivers. Mr. Urgiles did not present a new action plan at the meeting, however he was given an opportunity to provide one later. Ms. Werner reviewed the action plan with the Tribunal and noted that it was virtually the same plan Mr. Urgiles had put forth in 2018.
18Ms. Werner explained that in the circumstances, the Registrar chose the proceed with the Cancellation and Seizure Order, at issue on this appeal. Ms. Werner testified that ultimately the Registrar was not satisfied that there had been any real change between 2016 and 2019 in the appellant’s management of its fleet or drivers. The safety issues got worse overtime and it appeared that the appellant had taken no real steps to correct the issues.
19Mr. Urgiles testified on behalf of the appellant. While he did question whether some of the at-fault collisions had been reported fairly by the police, he did not challenge the MTO’s overall position regarding the ongoing safety issues with the appellant and its fleet. Mr. Urgiles testified that as a result of his personal issues, he was not in full control of the building in which he operates the appellant’s operations and as such had been unable to address the safety issues in 2018 and 2019.
20Mr. Urgiles explained that, at present, he is in a much better place personally and professionally. He is able to attend to his fleet, personally ensuring it is roadworthy and safe. He also explained that he now has cameras on the trucks so that he can have better control over his drivers’ conduct.
21Mr. Urgiles testified that he has spent a lot of time and money ensuring that his fleet is now in a safe condition and that while he was not aware of the outstanding fines at the time of the show cause meeting, he has made efforts to pay them off. Mr. Urgiles urged the Tribunal to give the appellant another chance.
22In cross examination, Mr. Urgiles admitted that the appellant has had a history of safety problems, predating his personal issues in 2016. He explained that the earlier problems arose as a result of financial issues he had with a customer, as well as issues with hiring experienced drivers. He said that each year the demand for drivers increases and so it is sometimes difficult to hire the right staff.
Analysis
23The documentary evidence reveals that the appellant has been dealing with a problematic safety record since at least 2009. The appellant has had amply opportunity to address its record, which it has not been able to do to date. The evidence revealed that the appellant received warning letters, attended meetings with the MTO and was provided time to correct its deficiencies. Unfortunately, direction from the MTO and time did not result in any real progress or improvement.
24While Mr. Urgiles explained the various extenuating circumstances, which made it difficult for him to decrease the appellant’s overall violation rate in 2018 and 2019, the rate is such that I am satisfied that the Registrar had good reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with the governing legislation.
25It is important to note that over 97% of the CVOR carriers in the province do not even come to the attention of the Registrar, which means that their overall violation rate is below 35%. In contrast, the evidence demonstrated that for most of the time that it held its CVOR certificate, the appellant had a overall violation rate well in excess of 35% and well over 100% in the three most recent years. This includes a time following the appellant’s suspension in late 2018.
26I appreciate that the loss of a CVOR certificate will likely result in significant financial consequences for the appellant, but the purpose of the legislative scheme is to promote and protect safe roadways. It is the Registrar’s responsibility to ensure that only safe carriers are allowed to operated heavy trucks on the road. Unfortunately, given the appellant’s safety history and its failure to demonstrate that it has implemented real and significant remedial measures, especially after having been given a second chance in 2018, I find there is reason to believe that the appellant will not operate a commercial vehicle on the highway safely or in accordance with this Act, the regulations and other laws relating to highway safety.
Order
27Based on the evidence and further to s. 50(2) of the Act, the Tribunal confirms the Cancellation and Seizure Order, dated January 16th, 2020.
LICENCE APPEAL TRIBUNAL
Luisa Ritacca, Member
Released: October 14, 2020