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
RECONSIDERATION DECISION
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: Jason Bogle, Counsel
For the Respondent: Adriana Nigro, Counsel
REASONS FOR DECISION
Overview
1The appellants, West Side Towing Recovery and 2229152 Ontario Limited o/a Twin Cycle Towing and Recovery (“Twin Cycle Towing”), seek a reconsideration of a decision made by this Tribunal dated October 17, 2022 (West Side Towing Recovery Inc. and 2229152 Ontario Limited v Registrar of Motor Vehicles, 2022 CanLII 98052 (ON LAT)).
2In that decision, I found that the respondent established the appellant companies were related entities pursuant to the Highway Traffic Act, RSO 1990, c. H.8 (“HTA”). I also found that the respondent had established there was reason to believe the appellants would not operate commercial vehicles safely or in accordance with laws relating to highway safety. As set out in the decision, this was based on the safety records and roadside behaviour of the appellant companies. The thirty-day Suspension and Seizure Order issued by the respondent on October 26, 2021, was confirmed.
3The appellants now request reconsideration of this decision, alleging procedural unfairness and factual and legal errors.
4The relief requested on this reconsideration is: an order setting aside the decision; a declaration that the appellants’ do not infringe section 171 of the HTA; an order restoring the appellants’ CVOR certificates and pre- and post-judgment interest in accordance with the Courts of Justice Act, RSO 1990, c. C.43. Much of the relief sought by the appellant is not within the Tribunal’s jurisdiction to grant.
5For the reasons set out below, I confirm the Tribunal’s decision. In my view, the appellants have not established any of the criteria necessary for reconsideration. They have not identified any violation of the rules of procedural fairness nor any legal or factual error that would have changed the result.
ANALYSIS
6The criteria for granting reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017). The appellants request reconsideration based on the following two criteria:
a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness; and
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.
7Pursuant to Rule 18.4, the remedies available on reconsideration are to dismiss the request, or after having considered the submissions of the responding parties, to confirm, vary, or cancel the decision, or to order a rehearing.
8Reconsideration under the Tribunal’s rules is not a hearing de novo or an appeal. It is “a corrective mechanism which allows an adjudicator to correct overriding errors or fundamental evidentiary concerns” (Warren v Licence Appeal Tribunal, 2022 ONSC 3741).
1) The Tribunal did not violate the rules of procedural fairness in its assessment of the appellants’ overall violation rates
9The appellants allege that “the decision violated the rules of natural justice and procedural fairness” as it “augmented the issues raised on appeal, particularly seeking a determination if West Side Towing CVOR rating should and ought to be considered provided that Ministry attention was directed to several errors in respect to the reported incidents”.
10To be clear, procedural fairness and natural justice include the following crucial rights:
a. to know the case to meet;
b. to disclosure of the evidence to be relied upon by all other parties;
c. to be heard;
d. to give evidence and cross-examine;
e. to receive the adjudicator’s decision and reasons; and
f. to have an impartial adjudicator hear and decide the matter.
11The procedural impropriety with respect to the Tribunal’s assessment of the appellants’ Commercial Vehicle Operator Registration (“CVOR”) ratings is not specified by the appellants. In my view, none of the above rights were violated at the hearing.
12The appellants appear to suggest that I erred when considering the evidence of appellants’ safety rating (i.e., the overall violation rate (VR) as calculated by the Ministry). I disagree. The CVOR system is fully explained at the outset of the decision. The decision notes at (paragraph 49,) that, according to the respondent’s evidence, at the time of the suspensions, both appellant companies had overall violation rates greater than 36% (placing them in the worst 4% of all carriers in Ontario). I also note the appellant’s’ evidence with respect to the VR, “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.” The findings, with respect to the appellant’s VR, were available on the evidence.
13I see no procedural unfairness or error of law in the Tribunal’s assessment.
2) No Error of Law or Fact Such that the Tribunal would have reached a different result had the error not been made
14The appellants allege numerous errors of law and or fact that impact the result. I find that the submissions do not point to any significant errors but reargue issues that were fully canvassed at the hearing and are addressed in the decision.
Alleged Bias of Officer Healy
15The appellants assert that the decision fails to “opine on the credibility conduct of Officer Healy who was alleged to have issued sanctions and tickets for an improper purpose” and made no finding with respect to the “inherent bias” issue relating to this officer.
16This issue of alleged bias of this officer was fully canvassed in the decision. At the very outset of the reasons, I note the appellants’ position: “the appellants suggest that the proceedings are driven by the personal animus of a specific Ontario Provincial Police Officer.” At paragraph 20, I note that neither Officer Healy nor the Ministry representative agreed that the Ministry interventions were specifically triggered by this officer. Paragraph 29 of the decision does note evidence that drivers of the appellant companies had concern for their safety when dealing with this specific officer. At paragraphs 54 and 55, I ultimately concluded, however, that the appellants’ submission that the Ministry proceedings were driven by the personal animus of Officer Healy was not supported by the evidence. As noted, the Ministry interventions were based on a VR that exceeded an acceptable level and on multiple OPP reports, from various police officers, of unsafe roadside incidents involving the appellant companies. There are no errors of law or fact in the assessment of this evidence that would materially affect the decision.
Sections 171 and 177 of the HTA
17The appellants indicate that the decision fails to interpret sections 171 and 177 of the HTA and their implication. In my view, the reasons for decision appropriately address these provisions and their relevance leaving no basis for reconsideration. I noted at paragraph 22 of my decision that these relatively new HTA provisions delineate how and when tow trucks can offer services at a collision scene. I also noted that these specific provisions were discussed at a June 2021 interview between the Ministry and appellants. More specifically, the Ministry repeatedly advised the appellants that, regardless of their interpretation of these provisions, they were required to follow the roadside directions of the police. To not do so and to argue with police at accident scenes created safety issues.
18The decision clearly sets out that, while they provide important context, the correct interpretation of sections 171 and 177 of the HTA was not at issue in the circumstances of this case. What was at issue was the behaviour of the appellants when stopped by police (pursuant to these and any other highway legislation) and if this provided reasonable grounds to believe that the appellants would not operate a commercial vehicle safely and in accordance with the highway-related law. As noted in the decision, there was evidence of the appellants not following police direction, arguing with police at the roadside and removing vehicles without police authorisation. This behaviour continued even after police and Ministry warnings and interventions. I find there is no error in how these sections of the HTA were addressed in the decision.
“Related Entities”
19The appellants also appear to take issue with the conclusion that West Side Towing and Twin Cycle Towing are “related entities”. Paragraphs 46 and 47 of the decision fully detail why I found the appellants to be “related” pursuant to the HTA. The appellants point to general procedural irregularities (i.e., Twin Cycle Towing not receiving appropriate notice from the respondent) that are irrelevant to the legal test set out in sections 47(1), 47(2.1) and 17(4) of the HTA.
Incident involving the manager of appellant companies, David Smart
20Lastly, the appellants submit that it was an error to consider an incident involving David Smart, manager of both appellant companies. As noted in the decision, there was video and testimonial evidence that, subsequent to multiple meetings with the Ministry about roadside behaviour, Mr. Smart had a significant on-road dispute with two motorists. As noted in the decision, Mr. Smart was acquitted of dangerous driving with respect to this incident.
21The appellant states that I erred in relying on section 47(1)(e) of the HTA, which deals with convictions, in considering this evidence. I find the appellants’ argument is misplaced. There is no reliance or reference to section 47(1)(e) in the decision. Rather, this incident was considered under section 47(1)(f) of the Act. As the decision notes, under this section the Registrar may suspend a CVOR on the grounds that:
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.]
22It was open to the Tribunal to consider Mr. Smart’s behaviour as the manager of the appellant companies when assessing whether the appellants will operate commercial vehicles safely and in accordance with the law. As noted in the decision, a criminal court not being satisfied of Mr. Smart’s guilt beyond a reasonable doubt does not preclude this Tribunal’s consideration of whether his actions were, on a balance of probabilities, unsafe. I concluded that they were. This finding was available on the evidence and does not warrant reconsideration.
CONCLUSION
23I find that the appellants’ submissions do not point to any procedural errors or fundamental evidentiary concerns. Rather, the appellants ask that evidence already fully considered by the Tribunal be reweighed, and reiterate submissions made at first instance. It is not my role on reconsideration to reweigh the evidence. Upon reviewing the decision and the parties’ submissions, I find no violation of the rules of procedural fairness nor any error of fact or law that would have resulted in a different outcome.
ORDER
24None of the criteria for reconsideration set out in Rule 18.2 has not been met and, pursuant to Rule 18.4, I confirm the decision of the Tribunal.
LICENCE APPEAL TRIBUNAL
Laura Hodgson, Member
Released: January 17, 2023