RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice-Chair
Licence Appeal Tribunal File Number: 15628/CVOR
Case Name: A.A.M. Logistics Inc. v. Registrar of Motor Vehicles
Written Submissions by:
For the Appellant: Arjun Vishwanth Nrupathunga, Counsel
For the Respondent: Patrick Moore, Counsel
OVERVIEW
1In a decision dated September 9, 2024 (“Decision”), the Tribunal confirmed the order of the Deputy Registrar of Motor Vehicles (“respondent”) to cancel the Commercial Vehicle Operator’s Registration (“CVOR”) certificate and vehicle registrations and to seize the plate portions of any permits and number plates registered in the name of the appellant (the “Order”).
2On September 19, 2024, the appellant requested reconsideration of the Decision and attached four documents (“Attachments”):
(i) Appellant’s Performance Summary from January 1, 2023 – October 31, 2023;
(ii) Performance Summary from November 1, 2023 – September 18, 2024;
(iii) Performance Summary from January 1, 2023 – August 31, 2023; and
(iv) Level 2 CVOR Report from August 19, 2022 – August 18, 2024.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
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; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The appellant relies on the grounds set out in rules 18.2(b) and 18.2(c). Although rule 18.2(a) was not specifically pleaded, the appellant also raises allegations of bias (which is typically a question of procedural fairness).
5The appellant requests that the Tribunal “reverse its Decision to cancel the CVOR and allow the company to continue operating under its existing CVOR”.
6The respondent submits that the Tribunal made no error of fact or law in its Decision, and that the appellant has failed to identify any actual error and is simply seeking re-adjudication of its case. Alternatively, even if any error was made, it is not an error such that the Tribunal would likely have reached a different result had the error not been made. In addition, the “new evidence” is about events in the time period after the hearing and therefore does not fit within the scope of rule 18.2(c); even if the new evidence were admitted and considered, it does not support the appellant’s submission.
RESULT
7The appellant’s request for reconsideration is dismissed.
ANALYSIS
8I find that that the appellant mainly seeks to re-litigate the Decision, which is not the purpose of reconsideration. My reasons follow.
Issue 1 – Rule 18.2(b) There was no error of fact or law that would have impacted the Decision had the error not been made
9The standard with reference to the legislation and case law is correctly stated in paragraphs 13 to 17 of the Decision.
10First, the appellant took issue with the Tribunal’s consideration of the evidence of the appellant’s history, in particular the past history versus the more recent history and concluding that there were reasonable grounds to believe that the appellant would not operate commercial vehicles safely and in compliance with the law.
11The respondent relies on the Tribunal’s decision in Metrix Redi Mix Ltd. & Standard Ready Mix Inc. v. Registrar of Motor Vehicles, 2021 CanLII 124066 (ON LAT), paras. 33-47, for the principle that “safety record” often encompasses events that happened well before the hearing. While I am not bound by that decision, I agree with that principle.
12There is no error in my considering the past violations of the appellant. Section 47(1)(f) of the Act expressly requires the safety record of a CVOR holder be considered in determining whether to cancel a CVOR certificate. The statute does not limit the Tribunal’s consideration to only the more recent past.
13While I considered the historical evidence, I also considered recent evidence about the appellant’s safety performance. For example, in paragraph 33 of the Decision I noted that the head of the appellant’s safety team, Mr. Chahal, admitted that the appellant’s violation rate was still over 100% on the day he testified at the hearing. In paragraphs 32 and 34, I noted that the March 6, 2024 CVOR record revealed that the appellant’s violation rate was high.
14I acknowledged that the appellant had made some progress in paragraph 61 of the Decision, but ultimately found in paragraph 61 that “…this progress was not enough to overcome repeated violations and convictions and interventions by the MTO over a period of several years preceding the Order” for the reasons set out in paragraphs 47 to 63. I gave limited weight to the appellant’s “Trend Analysis” for the reasons stated.
15Although the appellant appears to challenge the weight I assigned to the “historical” data compared to the more recent, allegedly positive information, the weight to be given to evidence is a matter for the adjudicator’s discretion and, here, is set out in detail in paragraphs 47 to 68 of the Decision. On reconsideration, there is no evidence that the weighing of evidence was not appropriately done, only that the appellant disagrees with it. The fact that the appellant disagrees with the weight assigned does not establish that an error was made.
16Second, the appellant submits that the Tribunal failed to consider its argument that the respondent should have provided the appellant with solutions to resolve its safety performance issues and to ensure the appellant’s competency to implement an effective safety program. This argument was raised at the hearing, considered, and rejected for the reasons in paragraph 60 of the Decision.
17Thirdly, although the appellant alleges that I should have considered whether the appellant had been treated differently than another carrier, SP Apex Solution Inc., this company was not a party to this appeal. The evidence before me was that SP Apex Solution’s principal Saad Minhas had never been a corporate officer or director of the appellant and had left the employ of the appellant in 2023. As set out in paragraph 43 of the Decision, this other carrier had filed its own appeal which was not before me.
18Fourthly, as for the ultimate outcome in the Decision being a cancellation, the appellant submits on reconsideration that I ought to have considered a less severe outcome. It argues that cancellation was disproportionate with industry norms. It also argued that I should have considered the appellant’s financial interest and that of its principal Arsalan Minhas, I considered their financial interests as set out in paragraph 68 of the Decision but found them to be outweighed by the public interest in safe highways.
19This is consistent with the Ontario Court of Appeal’s direction that “The issue is not simply one of sanction, but rather one of the safety of the public and the appellant’s dedication in that regard” in Muscillo Transport Ltd. v. Registrar of Motor Vehicles, 1998 CanLII 2672 (ON CA), para 4, and that of the Divisional Court in 2017210 Ontario Inc. v. Registrar of Motor Vehicles, 2022 ONSC 6939, paras. 32 and 33. The statute expressly allows cancellation as an outcome.
20I find that the appellant has not met the ground in rule 18.2(b).
Rule 18.2(c) – The “new evidence” is neither new nor impeachable of the Decision
21I find the Attachments do not meet the test in Rule 18.2(c), which restricts new evidence to evidence that could not have been obtained previously by the party now seeking to introduce it and would likely have affected the result.
22The hearing started June 11 and ended July 26, 2024. Two of the four Attachments have information that clearly existed at the time of the hearing and could have been submitted by the appellant at the hearing, and on that basis alone, is enough to dismiss their admission on reconsideration:
(i) Appellants Performance Summary from January 1, 2023 – October 31, 2023 – Attachment (i); and
(ii) Performance Summary from January 1, 2003 – August 31, 2023 – Attachment (iii)
23To the extent that Attachments (ii) and (iv) (i.e., the Performance Summary from November 1, 2023 – September 18, 2024; and the Level 2 CVOR Report from August 19, 2022 – August 18, 2024) relate to the period of June to September 18, 2024, these include months during which the hearing was ongoing or after the hearing ended. On a purposive interpretation of Rule 18.2(c), this Rule relates to evidence that exists at the time of the hearing but could not be “obtained”, not evidence developed or generated during the hearing or after the hearing has ended. As a result, I find that these portions of Attachments (ii) and (iv) are not “evidence that could not have been obtained previously” by the party within the meaning of Rule 18.2(c). The purpose of reconsideration is not to present evidence that could have been obtained but wasn’t, or present post-hearing evidence.
24In any event, I have reviewed the Attachments for the limited purposes of this reconsideration and conclude that they are not “likely to have affected the result” within the meaning of Rule 18.2(c). They show concerning, continuing problems with the safety performance of the appellant after April 18, 2024, the last inspection report put in evidence at the hearing, including that defects or violations were found in every inspection. Three of the seven inspections resulted in the appellant’s vehicle being placed out of service due to mechanical defects including issues with the air supply, braking system, lighting system, flat tire, and a lack of wheel bearing hub lubrication. Violations included seat belts, dangerous good and excess weight.
Rule 18.2(a) – There is no breach of procedural fairness, especially no reasonable apprehension of bias
25Although the appellant did not plead rule 18.2(a), it raises a reasonable apprehension of bias. That is a procedural fairness issue. For completeness, I considered this argument: here, the appellant submits that the decision raises a reasonable apprehension of bias.
26The test for reasonable apprehension of bias exists was set out by the Supreme Court of Canada in Commission for Justice and Liberty v. National Energy Board as follows:
“[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not [the decision-maker], whether consciously or unconsciously would not decide the matter fairly?”
27The Ontario Court of Appeal has said in Ontario Provincial Police v. MacDonald, 2009 ONCA 805 that: “There is one final, essential element that informs this analysis: the strong presumption of judicial impartiality and integrity. The onus rests on the applicant to demonstrate a reasonable apprehension of bias, and the threshold is a high one.”
28It is well established that the presumption of impartiality and integrity applies to administrative decision makers including this Tribunal.
29I find that the appellant’s argument is unsupported by any evidence. The fact that a decision is unfavourable to a party does not demonstrate that the decision maker was biased against that party.
30Having reviewed the Decision, I find no evidence of reasonable apprehension of bias. As set out above, the appellant’s evidence and submissions were fully and fairly considered. The appellant has not demonstrated otherwise.
31Further, it is well established that a reasonable apprehension of bias, if perceived by a party, must be raised by the party as soon as reasonably possible as set out in R. v. Nero, 2016 ONCA 160 at paras. 33-36. Had the appellant thought there was a reasonable apprehension of bias during the hearing, it could have brought a motion for recusal but did not do so, tending to indicate that it is the result of hearing that gave rise to this allegation of bias.
32As the Ontario Court of Appeal has said at para. 44 of MacDonald, “absent other factors, it is nonsensical to suggest that a reasonably conducted hearing or a reasonable ruling can give rise to an apprehension of bias”.
33I am not satisfied that the appellant has met the onus of establishing a reasonable apprehension of bias. This is a high bar and the appellant has not met it.
CONCLUSION
34Dissatisfaction with the decision is not a ground of reconsideration. The Tribunal has long recognized that a reconsideration is not an opportunity to reargue one’s case, 1 nor is it a hearing de novo or an appeal.2
35For the reasons noted above, I dismiss the appellant’s request for reconsideration of the decision.
Avril A. Farlam
Vice-Chair
Tribunals Ontario – Licence Appeal Tribunal
Released: December 18, 2024
Footnotes
- N.D. v. Aviva Insurance Company, 2021 CanLII 64232; N.R. v. Unifund Assurance Company, 2020 CanLII 101753; Gore v. Rusk, 2022 ONSC 2893 at para. 50 (Div. Ct).
- Warren v. Licence Appeal Tribunal, 2022 ONSC 3741 at para. 22 (Div. Ct.).