Date: 2022-02-25

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 from a Cancelation and Seizure Order issued by the Registrar of Motor vehicles pursuant to section 47 and 47.1 of that Act

Between:

2782141 Ontario Inc

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION & ORDER

ADJUDICATOR: Jennifer Friedland, Member

APPEARANCES:

For the Appellant Mark Reynolds, Paralegal

For the Respondent Patrick Moore, Counsel

HEARD BY VIDEO: December 1 and 9, 2021

Written submissions: December 17, 2021 respondent December 24, 2021 appellant January 4, 2022 reply Written Submissions Considered: January 19, 2022

A. OVERVIEW

1The appellant, 2872141 Ontario Inc, appeals to the Tribunal from a Cancellation and Seizure Order dated August 13, 2021 issued by the Deputy Registrar of Motor Vehicles pursuant to s. 47 and 47.1 of the Highway Traffic Act¹ (the Order).

2The appellant is a tow truck company operating as "401 Roadside". It is owned and operated by Ahmad Jarrar, who is its sole officer and director. The Order was also issued to two companies affiliated with Ahmad Jarrar: GTA Express Auto Repairs Inc., o/a GTA Towing and GTA Car Services Inc. Mr. Jarrar is the owner, operator and sole officer of those companies as well, neither of which appealed the Order.

3The Order was issued on the basis of the appellant's and/or the affiliated companies' safety records. It was the Registrar's view that these records provided reason to believe that the appellant would not operate a commercial vehicle safely or in accordance with the Act, the regulations, and any other laws relating to highway safety as provided for under s.47 of the Act.

B. ISSUES

4The issues before me are:

• Having regard to the safety record of the appellant, is there reason to believe that the appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulation and other laws relating to highway safety?
• If the answer to the first issue is yes, what is the appropriate outcome.

C. RESULT

5For the reasons given below, I am satisfied that the appellant's safety record provides reasonable grounds to believe that it will not operate a commercial motor vehicle safely.

6I am also satisfied that this is not an appropriate case for conditions. I therefore confirm the Registrar's order to cancel the appellant's CVOR certificate and the plate portion of permits and to seize the plate portion of permits and number plates for all commercial motor vehicles and trailers registered to 401 Roadside.

D. STATUTORY CONTEXT AND LAW

7Under s. 16(2) of the Act, a person or corporation who operates a commercial vehicle in Ontario is required to hold a valid CVOR certificate issued by the Registrar. A tow truck fits within the category of a commercial vehicle.

8The Registrar is required to keep a "safety record" of all CVOR operators as set out in s. 205(1)(c)(iii.1) of the Act.

9Under s. 47(1) of the Act, the Registrar may, by order, cancel a CVOR certificate and the plate portion of a permit on various grounds, including for grounds relating to the operator's safety record, as set out in s. 47(1)(f):

the Registrar having 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 vehicle safely or in accordance with this Act, the regulations, and any other laws relating to highway safety.

10A "related person" as defined under the Act includes corporations related to each other by virtue of having common managers or officers. It is not disputed that the three companies owned by Mr. Jaffar are related as defined under the Act.

11A CVOR certificate holder who is issued a cancellation and seizure order may appeal the Order to this Tribunal.

12Pursuant to s. 50(2) of the Act, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

Positions of the Parties

13The Registrar submits that the safety record of GTA Towing, one of the appellant's affiliated companies, shows an unacceptable overall safety violation rate with respect to collisions, convictions and inspections. It submits that the overall violation rate combined with other factors such as Mr. Jarrar's own personal driving record and an incident where Mr. Jaffar and two tow trucks from 401 Roadside engaged in racing or stunt driving, provide reasonable grounds for belief that the appellant will not operate a commercial motor vehicle safely.

14The appellant acknowledges the concerns raised by the Registrar but seeks an outcome short of cancelation of its CVOR certificate, which would impose a lifetime ban on the appellant from ever holding a CVOR certificate in Ontario again.

E. FACTS

15The Registrar called two witnesses in this case, Sgt. Flink of the Ontario Provincial Police (OPP) who testified about an incident where a number of the appellant's vehicles were observed racing down an off ramp onto the 401 and then weaving in and out of traffic; and Travis Donahue, the Senior Program Administrator of the CVOR program who described the CVOR system and provided evidence of the appellant's safety record and that of the affiliated companies. A number of exhibits were entered through Mr. Donahue which included the various relevant CVOR reports and records.

16The appellant did not call any witnesses. It submitted one email showing that Mr. Jarrar had registered in a defensive driving course scheduled for April, 2022.

17From the above witnesses and documents, the relevant facts can be summarized as follows:

CVOR System

18The respondent aptly described the CVOR system in its written closing submissions as follows:

The Ministry assesses an operator's safety record using a system in which an operator's collision, inspection and conviction results are assigned points. Calculations compare accumulated point totals in the previous 24 months with thresholds adjusted for the distance travelled by the operator's fleet. In the case of inspections, the threshold is adjusted for the number of inspections conducted. The calculations result in a collision violation rate, a conviction violation rate, and an inspection violation rate, each in the form of a percentage. These three component violation rates are weighted and combined into an overall violation rate. A higher percentage signifies worse performance.

19Mr. Donahue referred to statistics kept by the Registrar which show that 98.39% of operators have a violation rate of 35% or less.

20The Registrar will generally issue a warning letter if a safety record reaches 60%. More significant action is taken if the violation rate continues to rise, particularly above 100%.

21Only .02% of operators have a violation of 100% or more.

22The concern as it relates to the appellant initially arose with respect to one of its affiliated companies, GTA Towing.

GTA TOWING

23GTA Towing is a towing company owned and operated by Amar Jaffar. Its original certificate was issued January 9, 2019. It had a declared fleet size of four commercial vehicles travelling approximately 20,000 km per year.

24In a two-year period from April 22, 2019 to April 21, 2021, the CVOR record for GTA showed an overall violation rate of 135.6%.

Collisions

25The collision rate of GTA Towing over the above 2-year period was 139.29%.

26Only collisions where there has been impropriety (vehicle defect, driver action or driver condition) result in points. The Registrar referred me to an "impropriety" chart that mandates how many points are assigned: 2 points for property damage, 4 for personal injury, 6 if there is a fatality.

27The Registrar relies on four such collisions where a driver from GTA Towing was involved. One of the four involved Ahmad Jarrar. The others involved three different drivers.

July 8, 2019

i. driver TJ - improper passing - 2 points

May 24, 2020

ii. driver AJ - exceeding the speed limit - 2 points

September 12, 2020

iii. driver MO - following too close - 2 points

October 2, 2020

iv. driver CST - too fast for conditions - 4 points

28Mr. Donahue reviewed the collision reports for the above incidents and others where no points were assigned. The above incidents all resulted in damage to the other driver's vehicle. One resulted in the other driver being injured and his vehicle being demolished in the accident.

Convictions

29Convictions for driving/safety related offences of a driver operating under a CVOR certificate are assigned points and get calculated into the overall violation rate.

30The conviction rate for GTA Towing as of May 21, 2021 included 11 convictions as follows:

May 30, 2019 event (conviction Oct 2, 2019):

i. Driver TJ - improper parking - 1 point

August 12, 2019 event (conviction Nov 29, 2019):

ii. Driver AKE - disobey legal sign - 2 points

October 4, 2019 event (conviction January 23, 2020):

iii. Driver AJ - drive CMV without inspection - 2 points

January 20, 2020 (conviction Nov 18, 2020):

iv. Driver MJD - obscure colour window - 1 point

v. Carrier - obscure colour window - 1 point

June 12, 2020 (conviction April 1, 2020):

vi. Driver CWT - fail to have proper trailer attachment - 3 points

vii. Driver CWT - defective/improper tires - 3 points

viii. Driver CWT - insecure load - 3 points

October 7, 2020 (conviction April 4, 2020):

ix. Driver SMF - operate vehicle left lane - 5 points

x. Driver SMF - defective brakes contrary to regulation - 3 points

xi. Carrier - defective brakes contrary to regulation - 3 points

31Additionally, as of June 8, 2021, GTA towing had 13 outstanding carrier charges and 17 outstanding driver charges against it.

32One such charge was resolved on August 16, 2021 but the rest were still outstanding as of the date of this hearing. The conviction on August 16, 2021 was against Ahmad Jarrar for speeding. The offence date was September 4, 2020.

Inspections

33Vehicle defects and driver defects discovered during an inspection will result in points if they are "out-of-service defects." The inspection violation rate for GTA Towing during the period assessed was 37.89%.

34Of the nine inspections reviewed during the hearing for GTA Towing, three were assigned one point for vehicle out-of-service defects. One had a driver out-of-service defect.

35Other inspections revealed mechanical issues. In one for example, though none of the defects were out-of-service defects, there were nonetheless sufficient mechanical defects discovered that the truck was branded unfit and its plates were taken.

401 Roadside

36401 Roadside was issued a CVOR certificate on January 25, 2021. It did not receive any points for violations up to the period of May 21, 2021 – the date of the records relied on by the Registrar against GTA Towing.

37401 Roadside did acquire one violation point for an out-of-service defect following an inspection on September 14, 2021. And it was involved in an incident of concern that will be outlined below that involved speeding, weaving in and out of traffic, and alleged stunt driving on July 31, 2021.

Interventions

Warning letter, November 9, 2020

38The Registrar issued a warning letter to GTA Towing on November 9, 2020 referring to the company's "unacceptable performance." The letter was addressed to Ahmad Jarrar's attention. It warned that further events "may result in a change to your safety rating, a facility audit being conducted at your premises, and/or a requirement to attend an interview with an official of the Ministry. In addition, you may have your privileges of operating commercial vehicles suspended or canceled."

39There was no evidence that Mr. Jarrar took any specific action to address the growing concerns following receipt of that letter.

40On March 13, 2021, GTA Towing was issued a conditional safety rating.

Notice of Proposal to Issue Cancellation & Seizure Order, June 10, 2021

41On June 10, 2021 the Registrar issued a Notice of Proposal to cancel the CVOR certificate and plate portions of permits issued to GTA Towing and its affiliated companies and to seize the plate portion of permits and number plates for all CMVs and trailers assigned to those companies.

42Mr. Donohue explained that a leap in violation rates could result in the Registrar moving straight to the intervention of cancellation and seizure. In this case, he described how GTA Towing's record had deteriorated rapidly going from 62% at the time of the warning letter to 130% at the time the Registrar proposed to issue the cancellation and seizure order.

43One reason for the sudden uptick in overall violation rate was the increase in convictions following the warning letter. As one can see from the convictions described above, at the time of the warning letter GTA Towing had five convictions since April 2019 amounting to seven points in total. Since the warning letter, six further convictions had been entered together with 20 additional points.

44As of the date of the proposal, GTA Towing also had outstanding charges against it. As indicated above, as of June 8, 2021, the company had 13 carrier charges and 17 driver charges still outstanding.

Show Cause Meeting

45The Notice of Proposal provided the appellant the opportunity to show cause why the cancellation and seizure order should not be carried out. Mr. Jarrar attended a show cause meeting on June 28, 2021. The Notice urged him to come prepared to that meeting with an action plan for how he would address the safety concerns. Mr. Jarrar did not arrive with a plan other than to say he would get a colleague to train his drivers.

46At the meeting, Mr. Jarrar was asked to provide specific information to Mr. Donahue by July 12, 2021, including answers to specific questions regarding how he would gain the knowledge necessary to operate commercial vehicles safely with specifics of course locations and proof of enrolment among other details. He was also asked how his drivers would be trained and by whom, again with specifics. He was further asked how he would manage fatigue of his drivers and monitor their on-road behaviour; and how he would ensure that his vehicles were maintained to HTA standards.

47Mr. Jarrar did provide answers within the time frame requested and while Mr. Donohue described his explanations as vague and non-specific, I find they were at least a start – and a legitimate attempt to respond to the concerns raised at the show cause. While I agree that Mr. Jarrar's answers were not as specific as the questions called for, for the purposes of this decision I am not weighing Mr. Jarrar's responses against him.

Events subsequent to the Show Cause

48Evidence was provided by Sgt Flink of the OPP about an incident he observed just weeks after the show cause involving four tow trucks – two of which were owned by 401 Roadside. A third was owned by Legacy Towing, a company run by Mr. Jarrar's brother.

49Sgt Flink is a shift supervisor for the OPP Highway Enforcement Team, responsible for traffic enforcement throughout the GTA. At approximately 5:21 pm on Saturday July 31, 2021 (which was a long weekend), he was travelling westbound on the 401 toward the Martin Street overpass in Milton. His partner was in a separate car. They were travelling in tandem and communicating by radio. The speed limit had been reduced from 100 km/h down to 80 km/h along the 401 at that point due to construction.

50Sgt. Flink described observing four tow trucks travelling together down the offramp and then merging with traffic in front of him. He estimated their speed as they came off the ramp and merged with traffic to be about 120km. He described that as a radar and lidar operator he is trained to estimate travel speed to within 10km/hour.

51Sgt Flink further described seeing the vehicles continue at a high speed and weave in and out of traffic, which was fairly heavy given that it was a long weekend. He did not see any of the drivers signalling.

52Sgt Flink testified that he assumed the tow trucks were responding to a call and were racing to arrive first. However, he testified that he never did learn of an accident in the direction the trucks were travelling.

53Sgt Flink and his partner activated their lights and pulled ahead of all the tow trucks. They straddled the three lanes in order to slow traffic down until it stopped. Then they siphoned through the traffic until they could pull all four tow trucks over.

54Two of the four trucks were 401 Roadside vehicles. Ahmad Jarrar was one of the drivers.

55The officers charged all four drivers with stunt/race driving under s.172 of the HTA which resulted in an immediate 7-day driver's licence suspension for each driver and the impoundment of each of their vehicles for 14 days.

56The Registrar asks me to rely on certain behaviours of the drivers at roadside to further argue that Mr. Jarrar's companies should not maintain their certification. For example, the drivers were asked to stay in their vehicles but got out. When it came time to have the tow trucks towed, another of 401 Roadside's trucks showed up to do the towing, which the OPP determined was inappropriate. That other 401 Roadside driver also did not leave the scene as quickly as Sgt. Flink would have liked and was apparently somewhat obnoxious. Additionally, there was some suggestion that Mr. Jarrar and his colleagues purposely tried to delay their detention and the impoundment of their vehicles.

57Mr. Donohue expressed that holders of a CVOR certification are expected to be professional and polite when pulled over by the police. This may be. Nonetheless, I was not persuaded that Mr. Jarrar's roadside behaviour or that of the other drivers amounted to much more than them being upset that they had been pulled over. Their behaviour with the officer is not a persuasive factor in my decision; though the stunt racing/speeding certainly is.

Ahmad Jarrar's Driving Record

58The last piece of information relied on by the Registrar is Mr. Jarrar's personal driving record. The abstract put into evidence was for the past 5-years. It showed that Mr. Jarrar had been stopped for racing contest/stunt driving on four occasions since June 2019, each resulting in a 7-day license suspension and 14-day vehicle suspension.

59Although Mr. Jarrar did not testify, it is apparent from the record, and was acknowledged in the appellant's closing submissions, that two of those racing contest/stunt driving charges were pleaded down to speeding. The record shows two such convictions with the same offence date as the original charge:

• June 13, 2019 – racing contest/stunt driving suspension – convicted July 21, 2021 for speeding 129 km/h in a 100 km/h zone – offence date June 13, 2019
• September 4, 2020 – racing contest/stunt driving suspension – convicted August 16, 2021 for speeding 129 km/h in a 100 km/h zone – offence date September 4, 2020

60The charge of racing contest/stunt driving laid on July 31, 2021 by Sgt Flink or his partner was still outstanding at the time of this hearing.

61Mr. Jarrar then incurred another charge for racing contest/stunt driving on September 6, 2021 resulting in another 7-day licence suspension and 14-day impoundment.²

F. ANALYSIS

62The evidence in this case persuades me that the appellant should not maintain its CVOR certification.

63The CVOR system exists for a good reason – to promote road safety. I accept Mr. Donohue's testimony of what the system showed with respect to Mr. Jarrar's various tow truck companies. GTA Towing in particular had a hugely concerning violation rate. The fact that GTA Towing did not appeal the cancellation and seizure order issued against that company does not impact my analysis with respect to the safety record of 401 Roadside. I am satisfied they are affiliated companies and further satisfied that Mr. Jarrar sits at the helm of both. It was his responsibility to ensure that his operators were trained and could drive a commercial motor vehicle safely. It was further his responsibility to ensure that his trucks were well-maintained and operating safely. He clearly failed to do this.

64I do recognize that there is some doubling up of the point system – for example, both the carrier and the driver were convicted for the truck having defective brakes on October 7, 2020 (3 points each). The driver (not Mr. Jarrar) was also convicted for driving in the left lane that day (5 points), which is presumably what led to the inspection and subsequent charges. The inspection on that day also resulted in one violation point against the company. In all, there were 12 points earned from one event.

65I also recognize that the CVOR points system may impact a small operator more significantly than a larger one or one that has a high rate of kilometric travel. Nonetheless, this is the system that applies to commercial vehicles in Ontario.

66The simple statistic that as of January 25, 2021 there were 53,501 CVOR holders in Ontario and 90.52% had an overall violation rate of less than 15% – suggests that the system works. Meanwhile, only .02% of all CVOR operators had an overall violation rate over 100%.

67Mr. Donahue pulled the overall violation rate for GTA towing as of the last day of this hearing which was December 9, 2021. It was 140.9%.

68This overall violation rate of 140.9% was before any convictions that may ultimately result from the more than 20 outstanding charges facing GTA Towing as of the time of this hearing. I appreciate that the appellant and its drivers are all presumed innocent of those charges at present. That only means that the overall violation at best will not increase even more.

69With respect to the multiple charges for racing/stunt driving that Mr. Jarrar has personally faced, Mr. Reynolds submitted that since two of these resulted in a conviction of the lesser charge of speeding on a guilty plea, that I might infer there was insufficient evidence to have proven the offence of racing/stunt driving.

70I agree that I ought not look behind the conviction that was entered which was for speeding. However, I note that neither party provided the facts upon which the plea was based and certainly the driving record of Mr. Jarrar shows that on each of those two occasions, the officer who detained the vehicle also suspended Mr. Jarrar's licence and impounded the vehicle for 14-days, which is an outcome that could only have been pursued on reasonable grounds to believe the offence had been committed.

71With respect to the incident I heard direct evidence about from Sgt. Flink, I am satisfied that, on that occasion, Mr. Jarrar and one of his other 401 Roadside drivers were racing their trucks at a high speed with two other tow trucks down a ramp and in and out of traffic along the 401 on a holiday weekend in the middle of the day. Mr. Jarrar is not on trial for that charge today and I need not be satisfied that it happened beyond a reasonable doubt. But even if Mr. Jarrar is not convicted I am satisfied on a balance of probabilities that the events of that day unfolded the way Sgt Flink described them and that Mr. Jarrar and the other 401 Roadside driver were engaged in racing/stunt driving that day. By doing so they compromised road safety and put others at risk.

72Mr. Jarrar was then charged with another racing/stunt driving offence on September 6, 2021 after the cancellation and seizure order was issued and after the appellant had appealed that Order.

73I am satisfied that Mr. Jarrar's personal driving record, his driving behaviour as described by Sgt. Flink along with one of his other drivers, and the outstanding charges still pending against his company and its drivers is all "relevant information" that the Registrar was entitled to consider in issuing this cancellation and seizure order and which I am entitled to consider in determining whether to confirm that decision.

74Even without considering the additional factors, I find that the CVOR record of GTA Towing is itself a sufficient basis for confirming the Registrar's order.

75I am mindful that the cancellation of a CVOR certificate is for life.

76I also do not owe deference to the Registrar's decision. This is a hearing de novo and I must assess the evidence for myself to determine if there is reason to believe that, having regard to the safety record of the holder, or of a person related to the holder, and any other relevant information, that the holder will not operate a commercial vehicle safely or in accordance with the HTA, the regulations, and any other laws relating to highway safety.

77I find that there is reason to believe that the appellant company will not operate a commercial vehicle safely in accordance with the HTA, the regulation and any other laws relating to highway safety.

78The appellant drew my attention to Metrix Redi Mix Ltd & Standard Ready Mix Inc.³ – to suggest that it was unfair for the Registrar to leap from one warning letter to a notice of cancellation and seizure. In that case, multiple interventions were tried before the Registrar proposed to issue a cancelation and seizure order.

79I am cognizant of the fact that Mr. Jarrar has not been given much of an opportunity to improve his companies' safety record through interventions. But I do not find this determinative. The issue is road safety. The Commercial Vehicle Operator's Safety Manual – an excerpt of which was put into evidence at this hearing – shows a multitude of responsibilities placed on the operator to ensure road safety. These are responsibilities that are not triggered only after an intervention. They are there to be complied with from the start and the Ministry statistics show that 98.39% of commercial vehicle operators manage to generally comply with these requirements.

80The collisions, convictions and inspections described in detail by Mr. Donohue at this hearing illustrate the legitimacy of the safety concerns. Defective brakes are a worry. Improper attachments and insecure loads are a concern. The record of collisions for GTA Towing showed drivers (one of whom was Mr. Jarrar) improperly passing, speeding, following too close, or going too fast for conditions resulting in damage to other vehicles and in one instance injury to a person. Combined with the mechanical defects discovered during inspections including those that did not result in out-of-service violation points, there appears to be a lack of vehicle maintenance and care.

81Above all, I find the driving on the 401 as described by Sgt. Flink to be indicative of an operator who is not interested in performing more safely. If you cannot reign in your unsafe practices just weeks after a show cause meeting, it is difficult to see how a further chance would make a difference.

82Finally, I heard no evidence or information from Mr. Jarrar himself that would serve to undermine the evidence of Mr. Donahue and his description of the various violations. Mr. Jarrar chose not to testify. I have no basis to conclude that conditions on the appellant's CVOR certification would assuage the concerns raised at this hearing.

83I did have one exhibit entered on the appellant's behalf. This was proof of enrolment in a 1-day Defensive Driving Commercial training course to take place in April 2022. The appellant is encouraged to take this course notwithstanding that I am upholding the Registrar's decision to cancel his CVOR certificate.

84Mr. Jarrar is not prohibited from driving a tow truck or other commercial vehicle as a result of this decision. He just cannot be the operator who holds the CVOR certificate himself. If he stays in the industry he hopefully will join a company that does takes its safety obligations seriously. From the statistics provided, that is the overwhelming majority of all companies.

ORDER

85Pursuant to s. 50(2) of the HTA, the Tribunal confirms the Registrar's decision to cancel the appellant's CVOR certificate and the plate portion of permits and to seize the plate portion of permits and number plates for all commercial motor vehicles and trailers registered to the appellant.

Licence Appeal Tribunal

________________________

Jennifer Friedland, Member

Footnotes

1. 1R.S.O. 1990, c. H.8 (the HTA or Act)
2. 2The administrative suspension following a charge of stunt/race driving under 172 of the HTA was changed on September 12, 2021 and is now 30-days.
3. 32021 CanLII 124066 (ONLAT)