West Side Towing Recovery Inc. v. Registrar of Motor Vehicles, 2022 CanLII 98052

West Side Towing Recovery Inc. and 2229152 Ontario Limited o/a Twin Cycle Towing And Recovery v. Registrar of Motor Vehicles

Date: 2022-10-17

Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990 C.H.8 from a Suspension and Seizure Order of the Deputy Registrar of Motor Vehicles under sections 47 and 47.1 of the Act

Between:

West Side Towing Recovery Inc. and 2229152 Ontario Limited o/a Twin Cycle Towing And Recovery

Applicant

and

Registrar of Motor Vehicles

Respondent

Decision

ADJUDICATOR:

Laura Hodgson, Member

APPEARANCES:

For the Appellant:

Jason Bogle, Counsel

For the Respondent:

Adriana Nigro, Counsel

Heard by videoconference:

March 29, 30, June 30 and September 9, 2022

Overview

1West Side Towing and affiliate numbered company 2229152 (the appellants), operating as Twin Cycle Towing, appeal from the thirty-day Suspension and Seizure Order issued by the Registrar of Motor Vehicles (the respondent) on October 26, 2021. The respondent submits that the appellants are related entities, had poor safety records and incurred safety related events which indicate they will not operate commercial vehicles safely or in accordance with the relevant legislation.

2The appellants appeal the suspension order pursuant to s.50(1) of the Highway Traffic Act, R.S.O. 1990, c.H.8 (the Act). They submit that the two companies are not related and that the calculations of their safety records are inaccurate. Further, the appellants suggests that the proceedings are driven by the personal animus of a specific Ontario Provincial Police Officer.

3Based on all the evidence, I find the respondent has established there is reason to believe that the appellants are related and will not operate commercial vehicles safely or in accordance with laws relating to highway safety. For the reasons set out below I confirm the Suspension and Seizure order.

Issues

4The following issues are before the Tribunal:

i. Are West Side Towing and Twin Cycle Towing related entities pursuant to s.47 of the Act?

ii. Having regard to the appellants’ safety record and other relevant information is there reason to believe that they will not operate commercial motor vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety?

iii. What is the appropriate outcome?

Evidence and Analysis

Regulation of Towing in Ontario

5To operate a commercial vehicle, including a tow truck, in Ontario, carriers must hold a Commercial Vehicle Operator Registration (CVOR) certificate. Richard Borris, a senior program administrator with the Ministry of Transportation (MTO) testified for the respondent and explained the CVOR monitoring system. In his evidence, Mr. Borris pointed to the publicly available Commercial Vehicle Operator’s Safety Manual (the manual). He noted that the goal of the system is to promote the safe operation of commercial vehicles on Ontario roadways. The manual highlights that poor performance may result in the loss of privileges to operate commercial motor vehicles.

6In explaining the CVOR system Mr. Borris set out the following:

i. The MTO monitors operators and assigns each a safety rating or a “threshold” number of points, based on the number of kilometres they are expected to travel in one year.

ii. Data is collected from various sources (e.g., police reports, court documents) and points are assigned to events such as collisions, inspections and convictions.

iii. Based on the points assigned to infractions over the preceding 24 months, violation rates (“VRs”) are calculated as a percentage of the assigned threshold.

iv. Collisions, convictions, and inspections are assigned individual VRs.

v. The overall VR is calculated as a weighted average of the three individual VRs (collision (40%), conviction (40%), and inspection (20%)).

vi. A higher percentage denotes a worse safety record. Mr. Borris noted that the system is similar to the demerit point system for personal drivers’ licences.

7Mr. Borris indicated that, if an operator disagrees with the calculation of their VR, they can challenge it via an independent panel operating under the Infrastructure Health and Safety Organization. The manual makes no reference to this appeal process.

8Mr. Borris testified that there are various thresholds and events that can trigger intervention. A carrier with a 35% VR will automatically be flagged by the automated system for review. An analyst, working with a Senior Program Advisor, will assess and determine the appropriate intervention, if any. A VR of 85% will typically mandate an interview with the carrier. According to the manual, operators that exceed 100 percent of their overall VR threshold may receive notice of a sanction.

9The Registrar, at its discretion, may issue a Cancellation and Seizure Order, issue a Suspension notice, or take no action and give the operator the opportunity to improve its safety record. The Registrar may also invite an operator to a meeting to “show cause” why a sanction should not be issued.

10Additionally, there may be triggering events, other than the VR, such as a “significant incident” that brings an operator to the attention of the Ministry. Mr. Borris stressed that decisions with respect to MTO interventions are made at the discretion of analysts and not by an automated system. He testified that he is aware of cancellations and suspensions of CVORs when the VR was below 35%.

Appellant companies and their safety history

11West Side Towing and Twin Cycle Towing are tow truck companies operating in the greater Toronto area. Corporate Profiles produced by Ministry of Government Services and accessed by the respondent on August 04, 2021, identify Michael Theuma as the sole director of West Side Towing. Both Michael Theuma and Genevieve Derose, are registered as directors of Twin Cycle Towing (numbered company 2229152).

12The appellants also produced Corporate Profile reports accessed on November 18, 2021. Those reports show Michael Theuma as director of West Side Towing and only Genevieve Derose as director of Twin Cycle as of that date. Ms. Kelly Hipel, the office administrator for both companies, testified that she retrieved these corporate reports. Ms. Hipel acknowledged that the Twin Cycle Corporate report produced was incomplete and that she was unsure if Mr. Theuma had previously been a director of Twin Cycle.

13West Side Towing received its first warning letter from the respondent in January 2018 when its VR rating was 114.86%. When there was no change in rating, the Ministry scheduled an interview with company representatives on June 19, 2018. David Smart attended that interview introducing himself as a corporate officer for West Side Towing. In the months following this intervention, West Side’s rating dropped below 50% indicating it had addressed numerous issues.

14West Side Towing came to the respondent’s attention again in 2021. Mr. Borris testified that the carrier’s overall VR had crossed the 35% threshold in April 2021 so was flagged by an analyst. Mr. Borris noted that this rating put West Side Towing in the top 4% of worst carriers in Ontario. He testified that their VR actually put them in the worst 1.5% of Ontario carriers at that time, but because COVID skewed these numbers, Mr. Borris relied on pre-COVID stats to categorize the VR. In cross examination, Mr. Borris agreed that this “worst” 4% includes carriers of all sizes and not only tow truck operators. In addition to the safety record, in April 2021, the Ministry was also in receipt of numerous OPP incident reports involving West Side Towing.

15Police Officer Tim Healy provided evidence with respect to police and tow operator interactions and OPP incident reports. Officer Healy is a member of the Burlington OPP, Highway Safety Division. He has been the Tow Liaison Officer since 2016 and indicated that he handles tow truck related complaints ranging from driver conduct to fraudulent operations. Officer Healy testified that under the Act solicitation of a tow truck is prohibited on the highway and tow operators must be called by the motorist. He noted that motorists involved in collisions are typically very vulnerable and easily taken advantage of. When operators attend a highway collision site, they must remain 200 meters away from the collision. Officer Healy explained that every collision is considered a “crime scene” and it is problematic when tow operators prematurely remove vehicles.

16Officer Healy also testified that roadside disputes between police and tow truck operators create a public safety issue. A secondary collision can result if other drivers are distracted. He noted that the OPP had issued directives to all GTA Tow operators, including West Side Towing, with respect to roadside behaviour. In his view, the OPP had continually attempted to address roadside issues via in-person discussions, email and “OPP enforcement action” of ticketing.

17Officer Healy testified that, in January of 2021, OPP officers started documenting all tow truck related incidents on a standardized report form - OPP Towing Vehicle Incident Reports (OPP report). Officers were mandated to complete the form after any interaction with a tow truck operator, even if the interaction was “unremarkable”. Officer Healy, who participated with other agencies in the development of the form, testified that it helped document police/tow truck interactions in a consistent manner.

18In his testimony, Officer Healy first reviewed OPP reports relating to West Side Towing that were generated between January and early June 2021. One OPP report (dated January 26, 2021) simply documents West Side Towing removing a vehicle from a specific collision site. Others document West Side Towing drivers remaining at a collision scene after being asked to leave by police and being issued tickets under s. 171(1)(a) of the Act.

19An OPP report, created by OPP Officer Sestric, dated April 12, 2021, documents a West Side driver parked immediately in front of a collision, “in live lane of traffic when directed not to, driver then began arguing with me advising the law is made up and he knows his rights. Causing a scene on the highway”. Another report documents a physical altercation between a West Side Towing operator and an OPP officer (not Officer Healy). According to the OPP report the operator would not leave when asked and the officer physically escorted the individual to the roadside. The driver had indicated to the officer that he was hurt in the interaction. Officer Healy testified that he believed the tow operator was charged with “obstruct justice” as a result of this incident.

2021 Warning letter and Meeting with Ministry

20On April 15, 2021, the respondent sent a warning letter to West Side Towing. Following this, an interview was scheduled with company representatives for June 1, 2021. According to Mr. Borris the purpose of the interview was to discuss West Side Towing’s VR and to “address driver behaviour”. The Ministry’s meeting summary states, “The carrier was brought to the Ministry’s attention because of 7 OPP incident reports that identified noncompliance to the direction of the officers to leave the scene of collisions. The safety record of the company was also a concern as the overall violation currently stood at 40.7% and was at 36% when the interview file was created.” Neither Officer Healy nor Mr. Borris accepted the appellant’s suggestion that this interview and the MTO intervention were specifically triggered by Officer Healy.

21Now retired MTO Senior Program Administrator Travis Donohue and West Side Towing representatives attended the June 1, 2021, meeting. According to the meeting summary, initially only Mr. Smart attended, again identifying himself as the corporate manger of West Side Towing. As corporate documents identified Mr. Theuma as an officer, he was asked to call into the meeting. Mr. Theuma did so briefly and indicated that Mr. Smart ran the business and had authority to speak on behalf of the company.

22The meeting summary notes that the parties discussed, among other things, reports of drivers arguing with OPP about their right to be on the site. Mr. Smart insisted his drivers had the right to be there. The summary notes that sections 171 and 177 of the Act were also reviewed. These sections delineate how and when tow trucks can stop and offer services at a collision scene. In his testimony, Mr. Borris noted that convictions pursuant to sections 171 and 177 of the Act don’t currently impact the calculation of an operator’s VR.

23According to the meeting summary, Mr. Smart indicated that his drivers were entitled to attend accident scenes and were being prevented from doing so by the OPP. Mr. Donohue documented his response to Mr. Smart as follows:

• I told Mr. Smart that not following the direction of the officers creates a dangerous situation for both the driver and the OPP officer as well as the motoring public. Drivers are distracted by the interaction on the side of the road, the OPP officer is diverting their time to the tow driver and not to other safety related issues such as traffic or the drivers of vehicles involved in the collision.

• I told Mr. Smart that he should instruct his drivers to follow the direction of the OPP officers for road safety. That if he had issues with the interpretation of the HTA he should contact his legal counsel and the OPP for clarity. Mr. Smart said he was already in contact with counsel and that the HTA 171 charges have been dismissed. He has tried to reach out to the OPP but has not had any response. Mr. Smart said he has case law that he was using to validate his position. Mr. Smart was adamant that his drivers had the right to be there.

• I told Mr. Smart that I was not going to get into a discussion about the HTA and that he had his opinion and the OPP had theirs, but ultimately, he must follow the direction of the officers. (emphasis in original)

24Additionally, the meeting summary notes that Mr. Smart was asked about the numbered company 2229152 operating as Twin Cycle Towing and “he said that it was his company”. The meeting summary concludes that the companies should be considered “affiliates”. Mr. Borris testified that the MTO will note affiliated companies, so it doesn’t sanction one company and then have vehicles and operations simply moved to another company.

Notice of Cancellation and Suspension

25Based on the evidence, there was no noted change in appellants’ behaviour following this meeting and, in fact, roadside tensions between parties appeared to escalate. The Ministry received five additional OPP reports of West Side drivers attending motor vehicle collisions without authority and five OPP reports of Twin Cycle drivers attending without authority. OPP reports noted aggressive roadside behaviour and disregard of police directives. According to the Ministry Carrier Safety Review Record dated August 10, 2021, “All incidences resulted with conflicts and arguments from the drivers with the OPP. Many drivers refused to comply with the direction of police and refused to leave the scene. Arrests resulted from some of the interactions.”

26In cross examination, Officer Healy acknowledged that in some incidences there were physical altercations between officers and drivers. Officer Healy, who has recently been on extended medical leave, testified that he was unaware that criminal charges against two West Side drivers had recently resulted in an acquittal or been withdrawn. Officer Healy agreed with counsel for the appellants that there exists a perception, among some, that tow companies connected to the police can operate with impunity while other companies are marginalized. Officer Healy was also aware that police officers in other jurisdictions have been charged for offences related to their interactions with the tow industry. Officer Healy agreed that the appellants had commenced a civil lawsuit against him (as well as the OPP and other officers). When asked if he had animus against the appellant companies, Officer Healy indicated that he only had animus towards “predatory” tow truck companies.

27During cross examination, Officer Healy was shown videos of interactions between drivers of the appellant companies and OPP officers (not Officer Healy). In the videos all parties are courteous. Drivers question the police authority to have them leave and officers advise them to speak to David Smart or to the OPP Staff Sargent if they have issues with their directions.

28Kelly Hipel, the office administrator for both tow companies testified that drivers believed they were being unfairly denied attendance at collision scenes and that police misapplied the legislation. She testified that in April 2021, David Smart wrote to the OPP Burlington Detachment inspector. He advised that a tow operator “required ambulatory services for medical attention” after an April 23, 2021, incident with an OPP officer (not Officer Healy) and that the company was conducting a “formal review”. The appellant tendered no other evidence with respect to this incident. Hipel also indicated that Smart had written the OPP requesting clarification of their interpretation of sections 171 and 177 of the Act.

29Ms. Hipel testified that the drivers had “grave concern” for their safety when interacting with Officer Healy. She stated that they felt threatened and intimidated by him. On June 24, 2021, David Smart wrote the OPP Burlington Staff Sargent indicating that the company was also conducting a “formal review” with respect to a roadside incident between a West Side driver and Police Officer Healy on June 20, 2021. The letter states that Officer Healy used physical force on the driver and the driver required medical attention.

30Acting Chief Superintendent of the OPP Highway Safety Division responded to this letter on July 2, 2021. He noted that the OPP will continue to take enforcement action in accordance with the law and public safety. With respect to allegations of threatening incidents, Mr. Smart was directed to report complaints to the Office of the Independent Police Review Director (OIPRD), the agency responsible for public complaints about police. The appellant provided no further evidence about this incident, results of the company review or any formal complaints to OIPRD.

31On July 7, 2021, Police Officer Healy sent a letter to West Side Towing driver Ian Belle indicating that, because of escalating behaviour issues, they would not be using his services until his criminal charges were resolved. Additionally, on this same date, the OPP Burlington detachment issued this driver a No Trespass notice. It indicted that, for the duration of one year, he was not permitted to attend any OPP detachment except for personal emergencies or in relation to a release document.

32West Side Towing and Twin Cycle company were issued a Notice of Cancellation and Seizure from the respondent on August 10, 2021. It proposed, pursuant to s. 47 and 47.1 of the Act, to cancel the CVOR certificates and seize plates for all commercial vehicles related to the two companies. The Notice listed the following reasons:

i. Safety record review dated August 2021.

ii. CVOR records.

iii. Inspection and collision reports.

iv. Unsafe road behaviour by both companies.

33Mr. Borris testified that the Notice was issued to both companies because the Ministry considered Twin Cycle to be an affiliate of West Side Towing. David Smart managed both companies and Michael Theuma was the corporate officer of both. The Notice indicated that the appellants had the right to dispute the proposed Cancellation and Seizure. A meeting between the appellants and the Deputy Registrar of Motor Vehicles was scheduled for September 2, 2021, and appellants were invited to “show cause” as to why the order should not be issued.

Show Cause Meeting, Subsequent Behaviour and Suspension and Seizure Order

34Office administrator Kelly Hipel and operations manager David Smart attended the show cause meeting on behalf of the appellant companies on September 2, 2021. Ministry officials in attendance included the Deputy Registrar of Motor Vehicles, Sean Doussept and Senior Program Administrator Travis Donohue. According to the Ministry Show Cause meeting notes, the Deputy Registrar expressed concern with proceeding without the corporate officer present. Mr. Smart indicated that he had authorization to speak on behalf of both companies and that he ran both companies. He indicated that each company has its own drivers, but Ricardo Smart oversees drivers for both companies.

35Ministry officials advised company representatives that “the notice of cancellation was based on the safety record of West Side Towing & recovery inc. and 2229152 Ontario limited. Both companies had an overall violation rate greater than 36% which put them into worst 4% of all carriers. There were reports of unacceptable roadside behaviour of their drivers which put the public at risk, speeding was an issue.” According to Ministry notes, the 2018 and 2021 warning letters and subsequent meeting notes were reviewed, and the Representatives were told the following:

The interview in June 2021 focused on the driver behaviour and how those behaviours created unsafe conditions for the drivers, the public and the police. Those behaviors continued after the interview and have not changed, this is your opportunity to show cause why the Ministry should go forward with the proposed cancellation.

36At this meeting, Mr. Smart indicated that police harassed his operators on the highways, and they require clarity with respect to the interpretation of sections 177 and 171 of the Act. The Registrar inquired as to why the companies continued to attend collisions unauthorized after specifically receiving Ministry direction to stop. Mr. Smart indicated that, in his view, his drivers had the right to be present at collision scenes. The Show Cause meeting notes indicate that the Deputy Registrar repeatedly emphasised that the appellant tow operators must follow direction of the police.

37According to meeting notes, Mr. Smart presented a video of a motorist walking around a collision scene and a tow operator (not one of the appellant companies) being asked by police to leave. It appears that Mr. Smart wanted to demonstrate that there was a motorist in need of a tow and an available operator not permitted to provide one. The notes document the Deputy Registrar as responding as follows:

I saw the officer tell the driver to leave the scene 6 times and did not comply. The officer is taken away from his scene management but dealing with the tow driver and this allows the woman to wonder (sic) on the highway. This creates a greater distraction for passing traffic and makes the scene more unsafe than it should be. Permission holders must understand that they must follow the direction of the police if you disagree with this direction, they can take that up another time, but they must follow it at the time so as to allow the officer to manage the scene.

38Mr. Smart indicated that he didn’t agree that drivers could not argue with police on the scene. The Deputy Registrar responded that drivers need to leave “whether they feel they are being wronged or not” and that the conversation should not happen roadside. He indicated that drivers could obtain the police name and number but must leave if asked. The Deputy Registrar agreed to forward contact information for the Officer in charge of the Greater Toronto Area as Mr. Smart indicated he was receiving insufficient answers from police.

39At this meeting, Ministry officials requested follow up information from Mr. Smart including driver and vehicle lists, insurance information and “policy of dealing with police roadside.” Kelly Hipel testified that, following the meeting, the companies complied with all requests for additional information.

40In the weeks following this meeting there was an on-road interaction between two motorists and David Smart, who was driving a West Side vehicle at the time. Another motorist, Norbert Schlichting, recorded some of the interactions and gave testimony before this Tribunal. Mr. Schlichting had observed a tow truck driving quickly and making multiple lane changes before ultimately stopping in front of him and blocking an on ramp to the QEW highway. After blocking the ramp Mr. Smart got out of his vehicle and addressed two motorists in a vehicle behind him who had exited their vehicle. Mr. Schlichting indicated the motorists looked distressed and the interaction was escalating so he called 911 and started recording the interaction. The brief video shows a tow truck blocking the ramp, the tow operator and other motorists out of their vehicle and a driver of a large transport truck appearing to ask Smart to move his vehicle. In cross examination, Mr. Schlichting acknowledged that he had testified at a criminal proceeding with respect to this incident and had remained in court to hear other evidence. Counsel for the appellant showed Mr. Schlichting a video taken prior to the incident that shows the motorists taking their vehicle from a parking lot and an individual (later identified as Mr. Smart) running after them and following them in a tow truck. It was alleged that the motorists improperly took their vehicle from the West Side lot. In another video, made an exhibit by the respondent, the motorists can be heard asking David Smart, who has blocked the ramp and is out of his vehicle, to stay away from them.

41On September 21, 2001, following this incident Staff Sargant Houser wrote to David Smart. He indicated that the OPP would not be utilizing West Side or Twin Cycle towing services until Smart’s criminal charges were disposed of in court. The letter pointed to abusive language, defiance of police direction and criminal charges against two employees. On that same date a No Trespass notice was issued preventing West Side Towing and Twin Cycle Towing from attending any OPP detachment. Officer Healy testified that both this and the July trespass notice were issued on the advice of the OPP legal branch and were unrelated to the MTO proceedings. Mr. Smart was charged with dangerous driving with respect to the September 2021 incident but was acquitted at trial.

42The respondent issued a Suspension and Seizure Order on October 26, 2021. It indicated that the Deputy Registrar carefully considered submissions made at the show cause meeting and “remains concerned for highway safety.” The cancellation order dated August 19, 2021, was changed to a thirty-day Suspension and Seizure order with conditions. Mr. Borris could not state exactly why the order had been changed from cancellation to suspension but suggested it may have been a result of information received at the show cause meeting.

Law and Analysis

The Law

43Under section 47(1)(f) of the Act the Registrar may suspend a CVOR on the grounds that:

(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. (emphasis added).

44An order under section 47 may be appealed to this Tribunal and, on an appeal, the Tribunal may confirm, modify or set aside the order of the Registrar (see section 50 of the Act). The onus is on the respondent to establish that the appellants’ CVORs should be suspended. The Ontario Court of Appeal has held that as a standard of proof, ‘reasonable grounds for belief’ is lower than ‘balance of probabilities.’ It requires more than mere suspicion and an objective basis for the belief which is based on compelling and credible information (see Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at paras 18-19). The Court of Appeal emphasized that any and all past or present conduct can and should be considered.

45The Act (see sections s.47(1), 47(2.1), 17(4)) provides that one entity is related to another if,

i. the entities are related individuals;

ii. either entity is a partner of the other or was a partner of the other or they have or have had partners in common;

iii. either entity directly or indirectly, controls or controlled or manages or managed the other; or

iv. the entities have or have had common officers or directors, or they are or have been controlled, directly or indirectly, by the same shareholders.

Are West Side Towing and Twin Cycle Towing “related entities”?

46I find that the companies are related entities pursuant to the Act. The evidence clearly established that David Smart controlled and managed both companies. At all meetings with the respondent, in communications with police and before this Tribunal, Smart presented himself as manager of both companies. The evidence also establishes that the companies have or had a common director, Michael Thuema. The companies are therefore considered “related” pursuant to sections 17(4)(c) and 17(4)(d) of the Act.

47As a result, the safety records and other relevant information with respect to one company may be taken into account when considering whether the other company will not operate a commercial motor vehicle safely and the CVOR certificates or plate portions of the permits may be suspended for both companies.

Is there reason to believe that the appellants will not operate a commercial motor vehicle safely or in accordance with laws relating to highway safety?

48It is important, at the outset, to note what issues are and are not before me. While they provide important context, I am not interpreting sections 171 and 177 of the Act, I am not determining any allegations of criminal wrongdoing or civil malfeasance, nor the propriety of the OPP No Trespass notices. Similarly, I am not addressing the larger, more complex issue of tow truck “turf wars” in Ontario. I am confined to the narrow issue of whether the respondent has established that that there is reason to believe, having regard to the appellants’ safety records and other relevant information, that they will not operate a commercial vehicle safely or in accordance with the law. Based on all the evidence, I find that this has been established.

49Near or around the time of the CVOR suspensions both appellant companies had overall violation rates greater than 36%. Based on the evidence, this placed them in the worst 4% of all carriers in Ontario. In her evidence, Ms. Hipel disputed these calculations. The appellant did not, however, call evidence that seriously challenged the facts and data upon which the respondent’s calculations were based.

50Admittedly, the appellant companies’ VR numbers at this time were not extraordinarily high. Previously, when West Side Towing was subject to a Ministry intervention in 2018, it had a VR of 114%. The manual and case law indicate that interventions often occur at VR levels well beyond 36%. In the current circumstances, however, the raw VR numbers do not tell the complete story. Under section 47(1)(f) of the Act, consideration is given to both the safety record and “any other information that the Registrar considers relevant.” It is clearly open to the Ministry, after assessing other relevant information, to impose sanctions when a VR is below 100% (see Metrix Redi-Mix Ltd. v. Registrar of Motor Vehicles, 2022 ONSC 2496 (Div. Ct.) at par 10).

51In the circumstances here, numerous OPP reports detail West Side and Twin Cycle operators not following police direction, arguing with police at the roadside and removing vehicles without authorization. As explained by both Officer Healy and Mr. Borris, roadside disputes create a public safety issue and removing a vehicle without authorization impacts a police investigation.

52Of significant concern is the fact that the appellants remained noncompliant after police and Ministry warnings and interventions. At his meeting with the respondent in June 2021, David Smart was told by a Ministry official to instruct his drivers to follow the direction of the OPP officers for road safety. After this meeting, OPP tow reports continued to accumulate. Both West Side and Twin Cycle attended collisions without authorization and disregarded police direction. At the show cause meeting in September 2021 Mr. Smart continued to insist that his drivers had the right to be present at collision scenes regardless of police direction. At that meeting, Mr. Smart was specifically told by the Deputy Registrar that drivers need to leave the collision scene when asked “whether they feel they are being wronged or not” and that the broader issue over whether they can attend should not be argued at the roadside.

53Just weeks after the show cause meeting, David Smart, driving a West Side vehicle, engaged in unsafe, aggressive roadside behaviour. The witness and video evidence established that on September 21, 2021, Mr. Smart blocked a highway onramp and exited his vehicle to confront motorists. He was ultimately acquitted of the criminal charge in relation to this incident. However, a court not being satisfied of the appellant’s guilt on the criminal standard of beyond a reasonable doubt does not preclude this Tribunal’s consideration of whether his actions that day were, on a balance of probabilities, unsafe or dangerous. I find that they were, and I consider his behaviour as the manager of the appellant companies to be relevant to an assessment of whether the appellants can operate safely and in accordance with the law.

54The only witness called by the appellant was the office administrator for the appellant companies. She testified that drivers had concern for their safety when interacting with police. In a letter dated July 2, 2021, Chief Superintendent of the OPP Highway Safety Division directed Mr. Smart to report complaints of use of force to the Office of the Independent Police Review Director (OIPRD). There is no evidence that this was done. At the hearing, the appellant tendered recordings of roadside interactions between drivers and OPP officers (none of whom were Officer Healy). In these recordings, police officers were civil and simply directed drivers where to take their concerns. While there are allegations of police impropriety and inequitable treatment of operators, I had no direct evidence of that before me. I accept, based on the evidence of Officer Healy, who was present at several of the interactions and the numerous other OPP reports, that the appellants engaged in unsafe roadside behaviour.

55The appellant suggested that these proceedings are driven by the personal animus of Police Officer Healy. The evidence does not support this submission. While Officer Healy authored a number of OPP reports with respect to appellants’ roadside interactions, many reports were authored by other officers. As Officer Healy testified, he alone does not have the authority to prompt an MTO intervention. Mr. Borris was repeatedly asked and repeatedly denied that this MTO process was driven by Officer Healy. The interventions were based on a VR that exceeded an acceptable level and multiple OPP reports of unsafe roadside incidents.

56In all the circumstances, I find that there are reasonable grounds to believe that the appellants will not operate a commercial vehicle safely or in accordance with the laws relating to highway safety. I appreciate the appellants’ frustration with what they perceive to be unfair police treatment. The appellants clearly disagree with the police interpretation of the Act relating to tow operators’ rights at collision sites (i.e., sections 171 and 177). They have, however, been repeatedly advised by police officers and MTO officials including the Deputy Registrar, that the roadside is not the forum for disputing the law. By continuing to do so they have created a significant safety issue. Ontario highways would be unsafe places if every motorist was permitted to dispute police direction at the roadside. There exists reason to believe, having regard to the appellants’ safety records and their escalating highway safety incidents, that they will not operate a commercial vehicle safely or in accordance with the law.

What is the appropriate outcome?

57I am not bound to accept the outcome imposed by the respondent. I find however, that it is appropriate in the circumstances. The appellants have not established that other sanctions such as a “probationary period” would sufficiently protect public safety.

58I do not accept the appellants’ characterization of the proposed outcome as too severe or in error because there was no progressive sanctioning. The appellant company West Side Towing received a warning letter and attended a Ministry interview in 2018. They were again warned and given an opportunity for improvement after another Ministry interview in June 2021. Notably, the sanction was reduced from a cancellation to a suspension following the show cause meeting in September 2021. In any event, the Registrar’s discretion to impose sanctions under section 47 of the act is not fettered by any regulated progression scheme. In all the circumstances, I find that the suspension and seizure order is appropriate.

Order

59Based on the evidence and further to s. 50(2) of the Act, the Tribunal confirms the Suspension and Seizure Order, dated October 26th, 2021.