Metrix Redi Mix Ltd. & Standard Ready Mix Inc. v. Registrar of Motor Vehicles, 2021 CanLII 124066

DECISION AND ORDER

Date: 2021-11-29

Appeal from a Cancellation and Seizure Order issued by the Registrar issued under s. 47 and 47.1 of the Highway Traffic Act

Between:

Metrix Redi Mix Ltd. & Standard Ready Mix Inc. Appellant

and

Registrar of Motor Vehicles Respondent

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Mark Reynolds, Counsel

For the Respondent: Patrick S. Moore, Counsel Adriana Nigro, Counsel

Heard by Videoconference: October 25, 26, 27 & 28, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1The appellants, Metrix Redi Mix Ltd. (“Metrix”) and Standard Ready Mix Inc. (“Standard”), are trucking companies which operate fleets of cement trucks in Ontario and hold Commercial Vehicle Operator Registration (“CVOR”) certificates that allow them to operate commercial vehicles on public roads.

2On November 20, 2020, the Registrar issued a Notice of Cancellation and Seizure (“Notice of Cancellation”) proposing to cancel the CVOR certificates and plate portions of permits, and to seize the plate portion of permits and number plates for all commercial motor vehicles and trailers registered to the appellants and three other related corporations. The Registrar’s proposal is based on the grounds that the Registrar has reason to believe that the appellants will not operate commercial vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety under s. 47(1)(f) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”).

3The appellants appeal the Notice of Cancellation to the Tribunal pursuant to s. 50(1) of the Act.

4Based on all the evidence, I find that there is reason to believe that the appellants will not operate commercial vehicles safely or in accordance with laws relating to highway safety and, for the reasons set out below, I confirm the Notice of Cancellation and direct the Registrar to carry out its proposal.

B. ISSUES

5The issue in this appeal is whether the Registrar has proven that there is reason to believe, having regard to the safety record of the appellants or of a person related to the appellants, and any other relevant information, that the appellants will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

C. LAW

6Under s. 47(1)(f) of the Act, the Registrar may suspend or cancel the plate portion of a permit and a CVOR certificate if the Registrar 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 the Act, the regulations and other laws relating to highway safety.

7Section 17(4) of the Act states that an applicant is related to a person if:

(a) the applicant and the person are related individuals:

(b) either the applicant or the person is a partner of the other or was a partner of the other or they have or have had partners in common;

(c) either the applicant or the person, directly or indirectly, controls or controlled or manages or managed the other; or

(d) the applicant and the person have or have had common officers or directors, or they are or have been controlled, directly or indirectly, by the same shareholders.

8Section 47(2.1) of the Act states that section 17(4), shown above, applies with the modifications as necessary for the determining “related persons” for the purposes of s. 47(1)(f).

9The parties agree, and the evidence demonstrates, that the appellants are “related” for the purpose of the Act. The companies run their operations out of the same address; they use the same telephone number, fax number, and email address; and they are managed by the same person, Stephen Della Fazia. The evidence is that trucks registered by Standard sometimes have Metrix signs on them and vice versa. For all intents and purposes, the two companies are run as if they are one organization.

10The Registrar and the Tribunal are required under s. 47(1)(f) to have regard to the safety record of both companies when determining whether each of the appellants’ CVOR certificates ought to be cancelled. The Tribunal owes no deference to the Registrar in arriving at its decision.

11With respect to the standard of proof, it is “reason to believe.” In applying similar wording in another regulatory statute, that is, “reasonable grounds for belief,” the Ontario Court of Appeal has stated as follows:

The standard of proof provided by s. 6(2)(d) of the Act is that of “reasonable grounds for belief”… As applied to this case, s. 6(2)(d) of the Act required the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct make it more likely than not that he will not carry on business as required.¹

12I find there is no meaningful difference between the words “reason to believe” and “reasonable grounds for belief.” The standard of proof must be more than “mere suspicion” and will be found to exist “where there is an objective basis for the belief which is based on compelling and credible information.”² Further, there must be a nexus between the appellants’ past safety record and their ability to operate a commercial vehicle safely.³

D. EVIDENCE AND ANALYSIS

Background

13As noted above, Standard and Metrix are related companies for the purposes of the Act. The evidence at the hearing was that they are both managed by Stephen Della Fazia and that Mr. Della Fazia has been primarily responsible for all aspects of the operations of both companies at all material times.

14The evidence at the hearing was that Metrix has been the primary operating company since 1998 and that Standard was organized later in case Metrix became unionized. At some point Metrix did become unionized and Standard began operating with respect to non-union jobs. Mr. Della Fazia ran the two companies as if they were one entity although the total extent of the co-mingling of the two companies is unclear. That there was significant co-mingling is, however, apparent from the evidence at the hearing. The appellants’ safety consultant, Mark Richardson, worked with both Metrix drivers and vehicles, as well as Standard drivers and vehicles, and did not know until recently that there were two different companies involved.

15The Ministry of Transportation (“MTO”) did not become aware that Standard and Metrix were related companies until 2020. This is because the officers and directors listed in Standard’s Corporation Profile Report were different than those listed in the documents filed by Metrix. According to Mr. Della Fazia, another individual, Frank Affatato, was initially supposed to be involved with the Standard operation and so he was originally named as the Director and Officer of Standard. Mr. Della Fazia stated that he has been operating Standard on his own almost since its inception although his name never appeared on its corporate filings. Mr. Della Fazia described himself at the hearing as Standard’s president.

16Standard’s corporate registration was canceled in 2014 due to Corporate Tax Act non-compliance and is only now being revived according to Mr. Della Fazia. According to the record taken at the Show Cause Meeting for Standard on November 14, 2020, Mr. Della Fazia stated at that time that Standard was not an operating business and generated no revenue.

17This corporate arrangement is concerning. The evidence at the hearing demonstrates that Standard has, since 2014, been operating under a CVOR certificate even though its corporate status was cancelled. Contrary to Mr. Della Fazia’s representations that Standard was not an operating business up to 2020, there were as many as 60 vehicles that were in service and operating under the CVOR certificate issued to Standard. The evidence at the hearing showed that some of those vehicles had Metrix signs on their doors but were owned by Standard according to their certificates of registration. As will be discussed below, Standard was the subject of several interventions from 2008 to 2020 and was involved in a number of collisions during that time. It reported to the MTO that it was travelling a significant number of kilometers as part of its CVOR record. I find that Mr. Della Fazia was not being completely forthcoming with respect to the operations at the Show Cause Meeting when he represented that Standard was not an operating company.

18As will be discussed below, the safety record of Metrix appears to have improved somewhat after 2017 and at the same time, Standard’s safety record deteriorated. The appellants’ corporate organization makes it difficult to properly assess the safety records of the two companies separately or as a whole. It appears that Standard’s safety record, while not very good on its own even before 2018, was better than was Metrix’s, but it is difficult to assess what impact the intermingling of the two businesses might have had on that appearance or the relative improvement of Metrix’s safety record after 2018.

19Given that the assessment of a carrier’s statistical safety record is dependant on the accuracy of the data provided in respect of each carrier, such as kilometers traveled per year, the appellants’ corporate arrangement is concerning. The fact that Standard’s safety record was initially made to look significantly better than it was, because it had reported its kilometers travelled inaccurately, adds to that concern.

20Moreover, the appellants’ intermingling makes it difficult to determine whether Standard vehicles are being operated by Metrix drivers, or whether there is actually any differentiation of the two sets of drivers in their reporting. If Standard vehicles are being marked as Metrix trucks and may be driven by Metrix or Standard drivers, then it becomes impossible to properly assess the safety performance of each company on its own and whether the kilometers traveled by each company is being properly reported.

21By arranging the affairs of Metrix and Standard as he has, Mr. Della Fazia is effectively operating one company under two CVOR certificates. This is prohibited under s. 17(6) of the Act.

22I am also concerned that Mr. Della Fazia never advised the MTO of the fact that Metrix and Standard were operating as essentially one company. Mr. Della Fazia has had multiple interactions with the MTO with respect to the safety records of Metrix and Standard, including an interview in 2010, Show Cause Meetings in 2012 and 2017, the imposition of performance conditions in 2012, a fleet restriction in 2017, and five facility audits. Mr. Della Fazia should have made the MTO aware that he was operating the two companies and provided the MTO with sufficient information so that it could accurately assess their respective, or combined, safety records.

23The purpose of the CVOR system is to protect the public by monitoring whether persons are operating commercial vehicles safety. I find that by organizing Metrix and Standard as described, Mr. Della Fazia has either intentionally or unintentionally undermined the CVOR’s system’s effectiveness and that this undermines the MTO’s ability to effectively protect the public.

The CVOR System

24Lisa Venier gave evidence at the hearing. Ms. Venier has been employed in the carrier sanctions and investigations office of the MTO for 25 years and is currently a senior program administrator. In her evidence, she explained the CVOR monitoring system and the historical performance of the appellants in relation to that system.

25Ms. Venier said that the CVOR system is part of the carrier safety rating program whereby the MTO monitors operators and assigns each a safety rating based on several factors including collisions, inspections, and convictions.

26Ms. Venier explained that each operator is assigned a “threshold” number of points by which to assess the operator’s performance. The threshold is set based on the number of kilometers the operator is expected to travel in a twelve-month period. Infractions are tracked in a computer database which collects data from various sources including police reports and road safety officer reports. Infractions are assigned points which the computer system expresses as a percentage when compared with the assigned threshold.

27Violation rates (“VRs”) are maintained with respect to the three safety factors noted above – collisions, inspections, and convictions – using the assigned threshold and the violation record for the previous two years. The CVOR system keeps track of the violation rates with respect to the three safety factors both individually and combined as an overall violation rate (“OVR”). The OVR is calculated based on a weighted average of the three safety factors with the collision VR contributing 40% toward the OVR, the conviction VR contributing 40%, and the inspection VR contributing 20% of the total.

28Infraction points remain on an operator’s record for two years resulting in a rolling average which is accessible to the Registrar and the operator at any given time. Operators can obtain CVOR Abstracts which provide detailed information with respect to its VRs and OVR, and the Registrar recommends that operators review the abstracts at least twice a year so that they can determine whether there are any problem areas which need attention.

29Ms. Venier testified that, when an operator’s OVR reaches certain trigger points, the system will flag that as an issue which may need the Registrar’s attention. Generally, when an operator’s OVR reaches 35%, the Registrar will issue a warning letter advising the operator that it needs to take corrective action. When the OVR reaches 50%, a facility audit may take place. At 85%, there may be an interview and at 100% the Registrar will consider sanctions ranging from suspension to cancellation. Ms. Venier stressed that these actions are not automatic and the action taken by the Registrar depends on the overall history of the operator, the circumstances surrounding the violations in question, the significance of the events of concern, and any other factors relevant to the operator’s safety record.

30Prior to imposing sanctions, it is the Registrar’s practice to invite the operator to a meeting to discuss its safety record and any remedial measures the operator proposes to employ to improve its performance. This meeting is called a Show Cause Meeting and is conducted by the Deputy Registrar. Following that meeting, the Registrar may issue a Cancellation and Seizure Order, issue a suspension notice, or take no action, giving the operator an opportunity to improve its safety record based on the remedial measures the operator puts forward.

31According to Ms. Venier, interventions such as warning letters and facility audits are usually very successful, with about 80% of subject operators improving their violation rates to acceptable levels and never needing another intervention. The Registrar is concerned when an operator is chronically non-compliant and continues to demonstrate poor safety performance despite multiple interventions. Depending on the circumstances, the Registrar will propose sanctions, including cancellation and seizure, where there is chronic non-compliance even where VRs and OVR are not over 100%.

32Ms. Venier presented industry averages for all operators in Ontario. As of February 1, 2020, there were 60,541 registered operators in Ontario. 86.93% of those had a OVR of less than 15% and 96.83% had an OVR of less than 35%. Only 3.7% of operators had an OVR over 35%. As of January 25, 2021, 98.39% of operators had OVRs under 35%.

Metrix’s Record

33The evidence presented at the hearing shows that Metrix has held a CVOR certificate since January 1, 1998.

34Since it commenced operations, Metrix has been subject to several interventions and sanctions including four warning letters, five audits, one interview, and one fleet limitation. The Registrar has proposed to cancel Metrix’s CVOR certificate on two previous occasions. Metrix’s safety rating has been downgraded to conditional three times. These actions span the years 1999 through 2019.

35On October 10, 2010, the Registrar conducted an interview. Prior to that time, there had been three warning letters issued, three facility audits, and a conditional safety rating was assigned on one occasion. According to Ms. Venier, it is rare that an operator will come to the attention of the Registrar again after being the subject of a single intervention, and so the fact that Metrix had been the subject of six in a ten-year period is concerning. It indicates that the operator may be either incapable of, or insufficiently motivated to, operate its motor vehicles safely.

36At the October 10, 2010 interview, it was noted that Metrix’s OVR for the period ending November 2, 2009 was 111.1%. The OVR at the time of the interview was 82.3%. By that time there had been six interventions, and this did not appear to be having any appreciable impact on improving the safety performance of Metrix. The interviewer noted that, after a 2008 facility audit, Metrix made commitments to implement a driver training program with the possible inclusion of an outside consultant, as well as a written collision reporting policy, but Metrix never followed through with those measures.

37Throughout the interview, Mr. Della Fazia was stated to demonstrate an unconcerned demeanor and the attitude that the interview was of no consequence to him or his company. Mr. Della Fazia blamed driver behaviour for the high number of convictions the company was experiencing and indicated it was impossible to be watching over the drivers constantly. He also stated that, in terms of poor driver behaviour, he cannot terminate drivers because it is hard to find replacement drivers.

38The Interview Report stated that Metrix was not reviewing CVOR driver abstracts after a driver is hired and that this would be a useful tool for identifying problem drivers if done on a regular basis.

39As the result of the interview, Metrix submitted an Action Plan in which it undertook to require drivers to submit CVOR driver abstracts on a yearly basis, hold regular safety meetings with drivers (tool-box talks), suspend drivers who fail to report changes in their CVOR abstracts or infractions that take place while they are on duty, and randomly request CVOR driver abstracts to ensure compliance.

40At the hearing before the Tribunal, Mr. Della Fazia agreed that the measures promised in the Action Plan were not implemented and Metrix’s OVR for the period ending December 23, 2011 rose to 103.88%. This included a collision VR of 152.97%. This resulted in the Registrar issuing a Notice of Cancellation and Seizure on March 26, 2012.

41A Show Cause Meeting was held on April 10, 2012. At the Show Cause Meeting, Mr. Della Fazia brought with him a transportation consultant, Tariq Mahmud. Mr. Della Fazia and Mr. Mahmud presented a new Action Plan which contained undertakings to enact management training, driver training, and discipline procedures, as well as policies to ensure the proper maintenance of the company’s fleet. It was represented to the Registrar that Mr. Mahmud would be in charge of implementing the new policies and procedures.

42The Registrar agreed to set aside the Notice of Cancellation and Seizure on Metrix’s undertaking to implement its Action Plan and to keep its OVR lower than 50% in the future. Metrix’s safety performance improved, and the Notice of Cancellation and Seizure was rescinded on June 18, 2013.

43At the hearing, Mr. Della Fazia testified that Mr. Mahmud ended his involvement with Metrix about a year after the Show Cause Meeting, which was about when the Notice of Cancellation and Seizure was rescinded, and the policies and procedures contained in Metrix’s Action Plan were either never implemented or discontinued when the Notice of Cancellation and Seizure was rescinded. Metrix’s performance deteriorated. A facility audit was required on March 25, 2015, and its OVR at April 22, 2017 was 87.29% including a collision VR of 100.34%.

44A Notice of Cancellation and Seizure was issued to Metrix on February 28, 2017, and a Show Cause Meeting was held on March 28, 2017. This meeting was attended by, among others, Mr. Della Fazia and Mr. Mahmud. At the Show Cause Meeting, Mr. Della Fazia undertook to require drivers to hand in their CVOR driver abstracts in order to analyze high risk drivers for remedial training and disciplinary action. Mr. Della Fazia stated at the meeting that Mr. Mahmud had been hired again in 2017 to implement the promised changes. He stated that, if Mr. Mahmud should no longer work for Metrix in the future, Mr. Della Fazia would look for a new consultant. In the meantime, Mr. Mahmud would be responsible for, among other things, monitoring driver safety performance, hiring and training drivers, implementing an accident review committee, and determining remedial measures to be taken with respect to driver concerns. Metrix submitted a detailed Action Plan following the 2017 Show Cause Meeting.

45At the hearing, Mr. Della Fazia said that he lost touch with Mr. Mahmud a month or two after the 2017 Show Cause Meeting. He said that he does not know why he lost touch with Mr. Mahmud but that he simply could not get in contact with him. After losing touch with Mr. Mahmud, Mr. Della Fazia did not hire another safety consultant. Mr. Della Fazia said that the commitments made at the 2017 Show Cause Meeting and in the associated Action Plan were never implemented. He admitted that between 2017 and January 2021, there was no proper driver training being done.

46A Fleet Limitation Order was made for the period April 25, 2017 to April 24, 2018. I suspect that such an order would likely be less impactful to Mr. Della Fazia’s overall operations given that the order would not apply to Standard since he had not made the MTO aware that he was operating the two fleets in combination. I also note that the number of trucks being operated by Standard went from 53 in 2016 to 60 in 2017 and that the kilometers reported with respect to Standard rose from 2,169,019 in 2016 to 2,700,000 in 2017. This raises the concern that, in response to the Fleet Limitation Order, Mr. Della Fazia simply moved business operations from Metrix to Standard.

47A warning letter was issued to Metrix on August 1, 2019, indicating an OVR of over 35%, but by 2020 its OVR was calculated to be 22.26% with a collision VR of 41.50%. However, the evidence presented at the hearing shows that, while the number of trucks in Metrix’s fleet stayed the same, the kilometers upon which the OVR was based rose from 1,984,562 in 2017 to 2,656,697 in 2020. The evidence at the hearing was that Mr. Della Fazia had significantly overstated the kilometers travelled in 2020 with respect to Standard and that this resulted in an artificially low OVR for that company. In fact, the kilometers-travelled reported by Metrix as of October 19, 2021, was 987,386, a little more than a third of what was reported in 2020. This was not explained by Mr. Della Fazia at the hearing. If the kilometers travelled by Metrix were overstated by as much as three times the actual kilometers travelled, then this may have resulted in a significant understatement of the OVR for 2020.

48In the circumstances, it is difficult to assess the significance of Metrix’s relatively low OVR recorded in 2020 given the admitted overreporting of kilometers with respect to Standard that year, the unexplained variances in kilometers reported from 2017 to 2021, and the intermingling of the two operators over time.

49The OVR reported for Metrix for the period ending October 19, 2021, was 12.26% with a collision VR of 25.15%. However, according to the CVOR record for that period, Metrix’s fleet of trucks had been reduced to 43 and its kilometers travelled was only 987,386. The reduced OVR may be the result of the retention of Mark Richardson as Metrix’s safety consultant in January 2021, or it may be due to the manner in which the Metrix fleet is used as part of the intermingled operation, or as a combination of both factors.

The Record of Standard

50Mr. Della Fazia testified that Standard started operating in 2008 in order to continue doing non-union work in the event Metrix ever became unionized. Standard operates using some of the same vehicles as Metrix, and the two companies operate out of the same premises. Mark Richardson, the appellants’ current safety consultant, does not differentiate between the two companies and he sees them as the same operation.

51Prior to the circumstances leading to the current proceedings, Standard was subject to two interventions by the Registrar. These consisted of warning letters sent to Standard in 2008 and 2018. In addition, Standard was subject to a safety rating downgrade to conditional in 2014.

52According to a Review Summary attached to the present Notice of Cancellation and Seizure, Standard was brought to the attention of the Registrar as the result of a fatal collision that occurred on September 10, 2019. A second fatal collision occurred November 13, 2019, and Standard’s OVR was 49% at that time. A third fatal collision took place November 4, 2020, and there was a wheel-off incident on November 5, 2020. Standard’s OVR for the period ending March 23, 2021 was 57.87% with a collision VR of 130.97%. The CVOR record for Standard for the period ending November 17, 2020, showed an OVR of 25.46% but it was determined that the kilometers travelled that had been reported by Standard was significantly overreported resulting in an artificially low OVR.

53The most recent CVOR record for Standard presented in evidence is dated June 1, 2021 and shows an OVR of 54.62% with a collision VR of 122.85%. The appellant’s evidence is that its performance has continued to improve since Mr. Richardson started working with the company, and that its current OVR is approximately 40%.

54Although the most recent CVOR record includes violation points with respect to three fatal collisions, the Registrar presented evidence with respect to a fourth fatal collision which occurred in 2018 and which is outside of the 2-year assessment period. That collision is part of Standard’s safety history and is relevant to this appeal even though it does not appear on the appellants’ current CVOR records.

55The appellant argues that all, or some, of the fatal collisions should not appear on Standard’s CVOR record at all because its drivers were not at fault for those collisions.

56Before reviewing the circumstances surrounding the four fatal collisions in question, I will discuss the appropriate criteria as to when points will be applied with respect to collisions. Sections 5(1)7 and 5(1)8 of Regulation 424/97 require that the safety record of an operator include convictions and particulars of any accidents involving the operator’s vehicles. There is no requirement in the Regulation that accidents are only to be considered when they are the fault of the operator or when they result in a conviction.

57The MTO has published a Commercial Vehicle Operators’ Safety Manual (“Safety Manual”) as a guide to assist commercial operators in understanding the legislative requirements they must meet in order to be safe and compliant on Ontario highways. The Safety Manual describes when collisions, convictions, and inspections will appear on the operator’s CVOR record. With respect to collisions, the Safety Manual states that collisions are assigned points based on the severity of the collision and other information on the motor vehicle accident report and that collisions where no “improprieties” or vehicle defects are noted on the police report, appear on the operator’s CVOR record but do not incur points. Where there are driver improprieties or vehicle defects, points are assigned based on whether the collision resulted in property damage (2 points), personal injury (4 points), or fatal injury (6 points).

58The application of points with respect to collisions may be disputed to the CVOR Collision Point Review Panel of the Infrastructure Health & Safety Association (“CPRP”). The CPRP may remove points where the collision was not preventable based on the evidence presented. This means that, even where the driver has committed no significant impropriety, points may be considered to be properly assigned unless the driver can show that he or she could not have prevented the collision from occurring. This implies a positive obligation on the driver to prevent accidents if possible, and the application of points where a driver has failed to do so. The appellants did not dispute the application of points with respect to any of the collisions involving their drivers to the CPRP.

59Ms. Venier testified that points are automatically assigned where there has been a driver impropriety or vehicle defect identified on the MVCR relating to the incident. The Registrar can investigate a collision further by interviewing investigating police officers or witnesses and this may result in the removal of points from an operator’s CVOR record where it is shown that there has been no impropriety and the collision was not preventable.

60I find that points are properly applied to an operator’s CVOR record where there has been a collision which has resulted in property damage, personal injury, or death and the investigating police officer has reasonably reported that the driver of the operator’s vehicle has committed a driving impropriety or there is an identified vehicle defect. The driving impropriety does not have to rise to the level of criminal or Highway Traffic Act offences and does not have to be the only cause of the accident in order to justify the assignment of points. If the operator can show that the driver has not committed a driving impropriety and the collision was not preventable, then removal of the points may be considered.

61I also find that, if an appellant wishes to challenge the accuracy of its OVR at the Tribunal on the basis that infraction points were improperly attributed to it, then the appellant must present evidence which demonstrates that to have occurred. The CVOR system is a tool which is used to assist the Registrar in assessing the safety performance of operators and the Registrar cannot be expected to investigate every collision for the over 60,000 operators it monitors in Ontario to ensure that the points in each collision were properly applied. If the appellants wish to argue that points ought not to have been applied, then it is their obligation to demonstrate that to the Tribunal by leading evidence which establishes that allegation on a balance of probabilities.

62I will now consider the four fatal collisions for which evidence was presented at the hearing.

June 26, 2018 Collision

63The Motor Vehicle Collision Report (“MVCR”) with respect to this accident states that the appellants’ driver was travelling on Highway 401 near Mississauga when it rear-ended a transport truck which had stopped for traffic. The appellants’ driver was killed in the collision. The MVCR states that the appellants’ driver’s action was “following too close”. The appellants argue that there was some evidence that another vehicle may have contributed to this accident by moving in front of the appellants’ driver and then stopping quickly.

64Officer Ryan Myette was assigned to investigate this accident. As the result of his investigation, Officer Myette concluded that the vehicle directly ahead of the appellants’ driver stopped quickly as the result of traffic ahead of it and came to a complete stop before being rear-ended by the appellant’s driver. There was no evidence that the appellants’ driver tried to slow down or stop before the collision and the evidence showed that the collision occurred at high speed.

65In the Agreed Statement of Facts submitted by the parties, the appellants admit that the collision was caused by the Standard driver either following too closely, not paying proper attention, or being impaired by alcohol or drugs.

66I find that the identified driving impropriety was reasonably reported on the MVCR and that the appellant has presented no evidence to suggest that the collision was not preventable. I find that points were properly assigned with respect to this collision.

September 10, 2019 Collision

67This collision occurred when the appellants’ driver was turning right from Yonge Street onto Erskine Avenue in Toronto and struck a pedestrian. The driver action attributed to the appellants’ driver was “improper turn”. The appellant argues that the pedestrian should have seen the appellants’ truck approaching and avoided the collision. The appellant also argues that the appellants’ truck was justified in turning right from the left lane of Yonge Street because the length of the appellants’ truck made turning from the right lane impossible.

68Officer Harjeet Bhathal was qualified as an expert in accident reconstruction and gave evidence about this accident at the hearing. He stated that Erskine Avenue in that area is designated a pedestrian safety zone and a senior safety zone. There are signs posted prohibiting heavy trucks from driving on Erskine Avenue. The evidence presented at the hearing, including a video showing the events leading up to the collision, shows that the involved pedestrian was within the crosswalk area and was crossing the street with a green light when she was struck.

69I find that the identified impropriety was reasonably reported on the MVCR and that the collision was preventable. I find that points were properly assigned with respect to this collision.

November 13, 2019 Collision

70In this collision the appellants’ driver was turning right from Keele Street onto Lawrence Avenue West in Toronto when it struck and killed a pedestrian. The reporting police officer indicated that the appellants’ driver’s action was “fail to yield the right of way”. The Registrar called Officer Mark Chin to give evidence with respect to that accident. Officer Chin was qualified to give expert evidence in the area of accident reconstruction. He testified that the turning lane used by the appellants’ driver was governed by a yield sign and that the pedestrian had the right of way at the time of the accident. Officer Chin testified that his investigation indicated that the appellants’ truck did not slow down before the accident and did not properly yield the right of way. In Officer Chin’s view, the truck should have seen the pedestrian approaching and stopped to allow the pedestrian to cross before proceeding. This was an impropriety and properly reported on the MVCR.

71The appellant argues that the pedestrian caused the accident by stepping in front of a cement truck, giving it no time to stop in time to avoid the collision. The evidence does not establish this to be true but, even if it was, that does not change the fact that the appellants’ driver committed an impropriety and that a fatal collision took place. It was the obligation of the driver of the truck to yield to the pedestrian and he failed to do so. The fact that the pedestrian may have erred in asserting his right of way in the circumstances does not mean that the driver’s actions were not improper.

72I find that the identified impropriety was reasonably reported on the MVCR and that the collision was preventable. I find that points were properly assigned with respect to this collision.

November 4, 2020 Collision

73This collision took place as the appellant driver was turning right from Cherry Street onto Mill Street in Toronto. The MVCR lists the appellant driver’s action as “fail to yield the right of way”. Officer Harjit Bhathal gave evidence with respect to this collision. Officer Bhathal testified that, in his opinion, the appellant driver was not moving too fast for the conditions. He said that the pedestrian stepped onto the roadway when the truck was too close to come to a complete stop before striking her. He said that the driver would have needed 2.89 seconds to come to a complete stop once the pedestrian stepped onto the roadway and that he only had 2.5 seconds before striking the pedestrian. Officer Bhathal also testified that the pedestrian was about a meter from the pedestrian crosswalk when she stepped onto the road and that the “Don’t Walk” hand was probably flashing when she did so. The appellant argues that the appellants’ driver was not at fault for this accident and that the points assessed should be removed.

74However, the evidence shows that the appellants’ driver did not begin to slow the truck until after it had struck the pedestrian. Had he done so sooner, the truck would have been going very slowly when the pedestrian was struck, and the collision may not have resulted in a fatality. While the driver may not have committed a chargeable offence in this incident, and the pedestrian may have been a cause of the accident, that does not mean that the driver did not commit an impropriety.

75I find that the evidence demonstrated that the appellants’ driver committed an impropriety and, although the collision may not have been preventable, the fatal result may have been. I find that points were properly assigned with respect to this collision.

Other Collisions

76The Registrar filed the MVCRs with respect to the other collisions which resulted in points being applied to Standard’s CVOR. The appellant argues that some of the other collisions for which points were attributed may not have been the fault of the appellants’ drivers. No evidence was presented at the hearing with respect to those incidents and I am not prepared to find that the points were not properly applied. The appellant invited the Tribunal to find that police officers are not always correct when noting driver improprieties on MVCRs. I find that to be speculative and unsupported by the evidence presented at the hearing.

77The Registrar presented evidence of “wheel-off” incidents involving Standard vehicles. Wheel-off incidents are incidents where a wheel comes off a vehicle while it is in motion and are dangerous occurrences when they happen. The appellant alleges that the wheel-off events occurred as a result of improper manufacture of the bearing on the subject vehicles and that points should not have been assessed for those events. Other than the evidence of Mark Richardson, who was not qualified as an expert on the subject, the appellant presented no evidence to support this allegation. Moreover, it is the operator’s responsibility to ensure that the vehicles that it is operating are mechanically sound and, even if there were merit to the appellant’s allegation regarding improper manufacture, that would not be sufficient basis to adjust the appellants’ safety record.

78The appellants presented no other evidence to the Tribunal which proved on a balance of probabilities that infraction points were improperly applied with respect to either Metrix or Standard.

Mark Richardson

79After the fatal collision which took place November 4, 2020, the insurance broker acting for Metrix and Standard recommended that the companies hire a safety consultant. Mr. Della Fazia admitted at the hearing that the insurance broker told him that, if he did not hire a safety consultant, and specifically Mark Richardson who was recommended by the insurer, he would not be able to find an insurer willing to issue the companies a policy in the future. The companies would be uninsurable and would have to cease operating.

80A Show Cause Meeting was held November 14, 2020. As noted above, it was at that time that the Registrar became aware that Standard and Metrix were related companies. On November 20, 2020, the Registrar issued the Notice of Cancellation and Seizure currently under consideration.

81I find that as a result of his conversation with his insurance broker, or the receipt of the Notice of Cancellation and Seizure, or probably both, Mr. Della Fazia retained Mark Richardson as a safety consultant to work with the two companies starting January 1, 2021.

82At the 2020 Show Cause Meeting, an Action Plan was presented with the commitment that Mr. Richardson would be implementing that plan. Mr. Richardson has a long history of working in the trucking and insurance industry as a safety consultant. He was retained by Mr. Della Fazia in November or December 2020 to prepare and implement a safety training plan to reduce the number of accidents that were occurring. I must add that Mr. Della Fazia also has a long history of working in the trucking industry and has participated in the drafting of action plans in the past. It is not clear why Mr. Della Fazia was unable to prepare and, more importantly, implement successfully any significant safety procedures in the more than 20 years he was operating Standard and Metrix before Mr. Richardson was retained.

83Mr. Richardson gave evidence with respect to the policies and procedures he has implemented, particularly with respect to driver training and monitoring, and says that the measures he has taken have improved the operations at Metrix and Standard with respect to safety.

84Mr. Richardson’s actions have included, among other things, the creation of an accident review committee, regular meetings to discuss defensive driving, regular driver evaluations, regular review of CVOR driver abstracts, regular tool-box talks, and unscheduled reviews of drivers’ pre-trip inspection procedures. These are sensible practices, most of which Mr. Della Fazia had been promising to implement for many years. Some of these practices were implemented by Mr. Mahmud in 2012-13 to good effect before his retention was ended and the practices were abandoned.

85Mr. Richardson testified that he has a one-year contract with Metrix which he expects will be renewed. However, the terms of the contract are such that Mr. Richardson is only compensated when he is asked by Metrix to provide services and there is no contractual commitment by Metrix to a minimum amount of service to be provided by Mr. Richardson. He is currently attending to Metrix and Standard about one day per month. Mr. Richardson stated that at any time Metrix could simply stop asking him to come in or he could stop providing services. Mr. Della Fazia says that he plans to continue using Mr. Richardson’s services, and has no idea what he would do if Mr. Richardson was no longer available.

86According to Mr. Richardson and Mr. Della Fazia, the policies and procedures which have been implemented since January 2021 have had a significant positive impact on the driving and safety practices of Metrix and Standard. The VR and OVR percentages have been reduced and the companies’ drivers are cooperating with the new procedures.

Positions of the parties

87The Registrar argues that the CVOR system is designed to bring operators with unsatisfactory safety performance to the attention of the Registrar. Once an operator has been identified, various interventions are imposed in order to encourage operators to improve their safety records. The evidence presented shows that this system is normally quite successful and there are few operators who need interventions to take place more than once in order for their safety records to improve significantly.

88The Registrar argues that Metrix has a very long history of poor performance in terms of safety. That poor record goes back to 1999 and includes the many interventions discussed above. Metrix has a history of making commitments designed to improve its safety record particularly when threatened with serious penalties including cancellation. It has invariably failed to live up to its past commitments once the threat of cancellation has passed.

89The Registrar’s characterization of Metrix’s safety record is borne out by the evidence presented at the hearing. The appellant did not present evidence which seriously countered this characterization. Rather, the appellant argues that Mr. Della Fazia was unable to find the appropriate safety consultant to help him address the safety concerns that were arising and that, now that he has done so, the concerns have resolved. The appellant points to Metrix’s currently low OVR, and Standard’s declining OVR, as evidence of that.

90I find that Metrix’s safety record provides ample reason to believe that it, and Standard, will not operate commercial vehicles safely. Mr. Della Fazia, the person responsible for the operations of both operators, has shown limited interest in implementing policies and procedures which would foster the safe operation of the vehicles in the appellants’ fleets. He has been involved in the commercial trucking business since 1998 and has failed to educate himself on the practices necessary to ensure safe operation. He has consistently taken action to that end only when forced to do so by either the Registrar or his insurer.

91While it may be that Metrix’s CVOR has improved over the last year or so, I find that to be an insufficient sample size when compared with Standard’s and Metrix’s history to conclude that it represents anything more than another instance where Mr. Della Fazia takes operational safety seriously only when forced to do so, and that there is every reason to believe this will end when there is no more imminent threat of cancellation.

92Just as Metrix appears to have improved its OVR ratings in 2018, the safety record of Standard began deteriorating. It was issued a warning in 2018. There was one fatal collision involving a vehicle owned by it in 2018. There were two fatal collisions in 2019 and another in 2020. In addition, there were a number of other collisions of various severity as well as convictions during that time, the combination of which resulted in poor VRs and in particular collision VRs.

93Officer Bhathal gave evidence that there were approximately 105 fatal collisions in the city of Toronto between 2019 and 2020. Standard accounted for three of them. It is frankly incomprehensible that after four fatal collisions involving its drivers, it took the demands of the appellants’ insurer and the threat of cancellation by the Registrar for the appellants to take action to make their operations safer. This demonstrates a complete disregard for the safety of the motoring public.

94Standard’s OVR in 2021 was 57%. This is high considering that 98% of the operators on Ontario had OVRs of less than 35% that year. The Registrar says that, while the OVR rates are not as high as many cases which appear before the Tribunal, cancellation is justified given the severity of the recent incidents and the appellants’ long history of safety problems. As Ms. Venier said during her evidence, the Registrar had concerns about the appellants’ safety record for many years and undertook many interventions to have the appellants address those concerns - the appellants failed to do so and this failure manifested itself in the tragic events of 2018-2020.

95Standard’s collision VR was 130.97% in March 2021. This is extremely high and reflects the fact that driver safety had been practically ignored in the past. The fact that Standard’s OVR was “only” 57% at that time does not present the full picture and, as the high collision VR shows, does not fully represent Standard’s safety record. And while Standard’s OVR improved to 54.62% by June 2021, it still had a collision VR of 122.85% which is indicative of its inability to, or disinterest in, operating safely in the past.

96The relative improvements that the appellant has made to the safety records of Metrix and Standard are not sufficient to mitigate the safety concerns the Tribunal has when reviewing their history of poor safety performance. I am not satisfied that the recent safety measures taken by the appellants, including the retainer of Mark Richardson, are either permanent or sufficient to overcome the appellants’ past actions or to alter my finding that there is reason to believe that the appellants will not operate commercial motor vehicles safely.

Remedy

97While I am not bound by the sanction imposed by the Registrar, I find that it is appropriate in the circumstances. I find that the appellants have demonstrated that alternate sanctions are unlikely to change their actions or attitudes when it comes to operational safety and that the only sanction which would adequately protect the public interest is cancellation and seizure.

E. Conclusion

98I find that the Registrar has proven that there is reason to believe, having regard to the safety record of the appellants, and other relevant information, that the appellants will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

F. ORDER

99The Tribunal directs the Registrar to carry out its Notice of Cancellation and Seizure dated November 20, 2020.

LICENCE APPEAL TRIBUNAL

_____________________________

Colin Osterberg Member

Footnotes

1. 1Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at 18-19.
2. 2Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114
3. 3CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 at para. 32