Appeal under section 50.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a commercial motor vehicle under section 82.1 of the Act
Between:
K Mulrooney Trucking Ltd.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Gerry Tutecky-McDougall, Counsel
For the Respondent:
Ryan DeFaria, Counsel
Heard by Teleconference:
March 4, 2021
REASONS FOR DECISION AND ORDER
BACKGROUND
1This is an appeal by K. Mulrooney Trucking Ltd. (the “appellant”) of the 15-day impoundment of a commercial motor vehicle with trailer on July 22, 2020. The impoundment followed from an inspection at the Ministry of Transportation truck inspection station off Highway 401 east at Whitby. The provincial offences officer found what they assert to be a “critical defect” under s. 82.1 of the Highway Traffic Act (the “Act”); specifically, that more than 50% of the brakes (four of the six) on the trailer were inoperative.
2The owner of a motor vehicle which has been impounded because of a critical defect pursuant to s. 82.1 of the Act may appeal the impoundment on one of two grounds set out in s. 50.3(3) of the Act – that the commercial vehicle or trailer was stolen at the time it was detained or that it had no critical defects at the time of the inspection under s. 82.1. In this case, the appellant asserts that the truck did not have a critical defect when it was impounded. The onus is on the appellant to establish this on a balance of probabilities.
3Pursuant to s. 50.3(5) of the Act, I may either confirm the impoundment or order the Registrar to release the vehicle.
RESULT
4After carefully considering the evidence and submissions, and for the reasons set out below, I find that the vehicle had a critical defect, as defined under the Act and therefore the impoundment is confirmed.
EVIDENCE AND ANALYSIS
5The vehicle in question is a four-axle straight truck with a three- axle “pup trailer” which at the time of the inspection was carrying a load of ‘fly ash’. James Manwell, the driver, started work on July 22nd at 3 a.m. Before heading out for his first trip, he completed a pre-trip inspection of the vehicle. Though this was his first time driving this vehicle, Mr. Manwell is an experienced driver of approximately 39 years.
6Mr. Manwell drove from Kingston to Whitby where he dropped his first load, disconnecting the trailer to do so. At this time, he testified that he did another vehicle inspection. He then picked up the load of fly ash and was heading to Bath when he pulled into the Highway 401 east Whitby inspection station at approximately 12 noon. He stated that at no time did he have any indication that the brakes were not working.
7Officer James Gray was operating the truck scale when Mr. Manwell’s vehicle pulled in. Officer Gray testified that as the vehicle came to a stop at the scale, it appeared to him that the push rods on the trailer axles were not moving, which suggested to him that the brakes were not working properly. He asked Mr. Manwell to park the vehicle in an inspection lane. Officer Gray did an inspection of the vehicle, as indicated on the Commercial Vehicle Inspection Report (the “Report”). With regard to the inspection of the air brakes on the vehicle, Officer Gray followed the procedure as set out in s. 7(1) of Regulation 512/97 (the “Regulation”) under the Act: to do a critical defect inspection of the airbrakes, the measurement of travel of the out of the service brake chamber is taken with the vehicle engine turned off, an initial air system pressure between 90 and 100 psi, park brakes released and service brake actuator was fully applied by the driver. I do note, however, that the evidence was that the air system pressure was set at 100 psi, with which the appellant takes issue. This point will be addressed later in this decision.
8The Regulation sets out required measurements for push rod travel, and the permitted variations. Officer Gray measured the push rod travel at each axle and found one push rod at the truck axle to be out of adjustment, but two of the three axles on the trailer (four of the six brakes) had no movement at all on the push rods. It was this latter finding that led to the determination of a critical defect. Officer Gray did note that there was movement of the push rods on the first axle of the trailer. He also noted that the drums in the second two trailer axles were cool to the touch. Normally these would be warm, if not hot, because the friction heat created by braking.
9Because the determination of a critical defect in the air brakes requires careful measurement, the practice of officers at the inspection station is to have another officer verify the measurements and confirm the findings. In this instance, Officer Pat Nassis conducted measurements as well, also at an air pressure of 100 psi, and confirmed the critical defect. Officer Gray estimated that the entire physical inspection of the vehicle lasted 35-40 minutes.
10Officer Gray testified that he then advised Mr. Manwell of their findings and that the vehicle would be impounded for a critical defect. Mr. Manwell was then permitted to offload the fly ash in the trailer and was directed to a different area to do so. Mr. Manwell called his boss, Paul Reid, to tell him about the impoundment. Mr. Reid then contacted a mechanic to fix the defects noted. Mr. Manwell moved the vehicle to a different inspection lane to wait for the mechanic. The defects are required to be fixed prior to the tow to the impound facility.
11Officer Gray testified that, after leaving Mr. Manwell to wait for the mechanic, he returned to the inspection kiosk to complete the paperwork, the Report, which is usually handed to the driver when they leave. Prior to Officer Gray’s completion of the Report, approximately one hour after the inspection, Mr. Manwell asked Officer Gray to come out and look at the brakes because, he stated, the mechanic was there and noted that the push rods were moving and all brakes were operative at that point. Officer Gray went out to look and agreed that the brakes were working, but he advised Mr. Manwell that the impoundment would nevertheless proceed based on the original inspection, and the Report would be provided shortly. The Report indicates that the inspection began at 12:02 and finished at 13:13. The Notice to Registrar of Critical Defect was issued at 13:16.
12When asked on cross examination whether he could explain why the brakes appeared to be working when the mechanic checked them, Officer Gray stated that the only reason he could think of for the change (if one assumes as alleged by the appellant that the mechanic did not make an adjustment) was that a piece of dirt may have been in the air valve line which was then dislodged when the trailer was raised to off load the fly ash.
13Mr. Manwell and Officer Gray are in substantial agreement about the sequence of events described above. The appellant’s representative challenged the officers’ measurements which lead to the critical defect finding, suggesting that this was not properly done as per a requirement of the Regulation; specifically, that the test be done at an air pressure of between 90 and 100 psi. He submitted that the test, having been done at 100 psi, which he asserts is not between 90 and 100 psi, was invalid. When questioned about this in cross examination, Officer Nassis stated that there would likely be more movement of the push rods at a higher air pressure; however, here there was no movement at all. In any event, the mere suggestion that the measurements carried out at 100 psi as opposed to 98 psi, for example, were improper or disadvantageous to the appellant without supporting evidence is not persuasive.
14To reiterate, the onus is on the appellant to establish, on a balance of probabilities that there was no critical defect at the time of the inspection. The appellant asserts that the inspection comprised the entirety of the time on the report, that is, between 12:02 and 13:13., and in that period of time, Officer Gray ‘”inspected” the vehicle again, at the request of Mr. Manwell, after the mechanic found the brakes to be working. The appellant submits that the investigation for a critical defect continued, and by the time the Report was issued, there was no critical defect.
15There are two problems with this reasoning. The first is that while the evidence from Mr. Manwell is that the mechanic did nothing to the brakes, and the invoice for the service call1 on the vehicle makes no mention of repair to the rear two axles though it does show a lift axle brake adjustment, the mechanic was not called as a witness. His evidence, on the facts of this case, would have been highly probative. The appellant provided no explanation, other than the test being conducted at 100 psi, for the discrepancy between the officers’ inspection and that of the mechanic. Further, there is no evidence regarding the air pressure when the mechanic did his test in order to assess whether that may have led to a different result. Though the cause of the critical defect is not relevant to the determination of the fact of a critical defect existing, it is probable, based on the evidence before me, that Officer Gray’s explanation of dirt in the air valve line which caused the brakes not to work dislodged only when the trailer was raised and the fly ash offloaded. And as a result, the brakes were found to be working when he subsequently looked at the vehicle at Mr. Manwell’s request.
16The second problem with the appellant’s position arises from a wording of the s. 50.3 (3) (b) of the Act - the appellant must establish “that the commercial vehicle or trailer had no critical defects at the time of the inspection under section 82.1.” (emphasis added). The evidence before me was clear. The inspection was completed, and a critical defect was found. Officer Gray advised Mr. Manwell that the vehicle would be impounded and that he would be completing the paperwork. It was not, as the appellant submits, an investigation that continued until the paperwork was completed, nor was it incumbent upon Officer Gray to ask the mechanic what he did or did not do when he made the observation that the brakes were working.
17A similar argument was made in the case of Sunrise Equipment Auction Inc. v. Registrar of Motor Vehicles2 (“Sunrise”). In that case, the appellant argued that because the order to impound was actually received after the mechanic adjusted the brakes, the order should not have been made, since the critical defect was repaired at the time the order was received no defect existed at the time of receipt of the order. The Tribunal rejected that argument, stating that the relevant time is the time of the inspection, not when the order was received. Again, on the facts before me, the inspection by the officers was completed, prior to the mechanic’s arrival, and at that time, a critical defect had been determined to exist.
18In reaching this conclusion, I recognize that there may seem to be some inherent unfairness in that at the time the Report was issued, there may have been no critical defect; however, this is very likely often the case given that a mechanic must attend and fix the defect, which may be quickly and easily done before a report and order to impound is issued and the vehicle towed to the impound facility. As was stated by the Tribunal in Sunrise, the fact that a defect can be fixed with little or no effort after an inspection does not relieve the owner from the consequences of operating an unsafe vehicle on the highway.
19The purpose of the provisions of s.82.1 of the Act is to promote compliance with safety standards and to safeguard the public as they drive on Ontario’s highways. Without the inspection that occurred here, it is likely that Mr. Manwell would have continued to drive with four of the six brakes on the trailer not working, posing a risk to himself and others. The fact that both Mr. Manwell and the appellant appear to have good safety records is noted but does not alter the finding of a critical defect at the time of the inspection on July 22, 2020.
ORDER
20Pursuant to s. 50.3(5) of the Act, the Tribunal denies the appeal and confirms the impoundment.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: March 23, 2021