Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

An appeal under Section 50(1) of the Highway Traffic Act, R.S.O 1990, c. H.8 (the “Act”), from a Cancellation and Seizure Order of the Registrar of Motor Vehicles under sections 47 and 47.1 of the Act

Between:

White Oaks Towing Corp

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Rabeah Abdullah, Representative

For the Respondent: Dan Armstrong, Representative

Adriana Nigro, Counsel

Reporter: Erika Yu

Heard by Videoconference: May 28 & 29, 2024

REASONS FOR DECISION AND ORDER

BACKGROUND

1White Oaks Towing Corp. (the “Appellant”) appeals to this Tribunal under s. 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an order of the Registrar of Motor Vehicles (the “Registrar”) issued pursuant to s. 47(1) of the Act on November 20, 2023 to cancel the Commercial Vehicle Operator’s Registration (“CVOR”) certificate and vehicle registrations and to seize the plate portion of any permits and number plates registered in the name of the Appellant.

2The Registrar alleges that there is reason to believe that the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and any other laws relating to highway safety. The Registrar bears the onus of convincing the Tribunal that there is reason for such belief.

3The Appellant appealed the order to the Tribunal pursuant to s. 50(1) of the Act. Section 50(1) provides the right of appeal to this Tribunal and s. 50(2) allows the Tribunal to confirm, modify or set aside the decision of the Registrar.

4Rabeah Abdullah is the sole owner, shareholder, director and officer of the appellant.

ISSUES

5The issues before me are:

(a) Is there reason to believe, having regard to the safety record of the Appellant or of a person related to the Appellant, and any other relevant information, that the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety?

(b) If the answer to the first issue is yes, what is the appropriate outcome?

RESULT

6For the reasons that follow, I find:

(a) There is reason to believe that the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety; and,

(b) Having considered the parties’ submissions, this is not an appropriate case for conditions. I therefore confirm the Registrar’s order to cancel the Appellant’s CVOR certificate and vehicle registrations and to seize the plate portion of permits and number plates for all commercial motor vehicles registered in the name of the Appellant.

LAW

7Under s. 47(1) of the Act, the Registrar may, by order, suspend or cancel a CVOR certificate and the plate portion of a permit if the Registrar has 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 motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

8Section 17(4) of the Act provides that an applicant is related to a person if at least one of the following is established:

(a) the applicant and the person are related individuals;

(b) either the applicant or the person is a partner of the other or was a partner of the other or they have or have had partners in common;

(c) either the applicant or the person, directly or indirectly, controls or controlled or manages or managed the other; or

(d) the applicant and the person have or have had common officers or directors, or they are or have been controlled, directly or indirectly, by the same shareholders.

9Section 47(2.1) of the Act provides that s. 17(4) applies with necessary modifications for the purpose of determining who are related persons for the purposes of s. 47(1)(f).

10The Registrar and the Tribunal are required under s. 47(1)(f) to have regard to the safety record of the Appellant when determining whether the Appellant’s CVOR certificate, vehicle registrations and number plates ought to be cancelled and seized. The Tribunal owes no deference to the Registrar in arriving at its decision.

11According to the Court of Appeal in Registrar, Alcohol and Gaming Commission of Ontario v. 751809 Ontario Inc. operating as Famous Flesh Gordon’s, 2013 ONCA 157, the issue is whether those facts afford reasonable grounds for belief that the business will not be carried on in accordance with the law and with integrity and honesty.

12The “reasonable grounds to believe” standard requires something more than mere suspicion but less than proof on a balance of probabilities. In other words, the Registrar does not have to show that the conduct of the Appellant makes it more likely than not that they will not carry on business as required. The Registrar need only show that there are reasonable grounds for belief that they will not operate a commercial motor vehicle safely or in accordance with the Act.

13According to the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114, reasonable grounds for belief must be more than mere suspicion and will be found to exist where there is an objective basis for the belief which is based on compelling and credible information.

14Further, there must be a nexus between the past conduct in issue and the Appellant’s ability to operate a commercial motor vehicle safely: see CS v Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (Div. Ct.) at para. 32.

EVIDENCE AND ANALYSIS

15The Registrar submits that the Appellant’s safety record provides reason to believe that it will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety. The Registrar also submits that the Appellant is related to 1000401227 Ontario Corp., which operated under the business name of Explicit Works (“Explicit”) and is related to Rabeah Abdallah.

16Mr. Dan Armstrong, Senior Program Administrator for the Ministry of Transportation (“Mr. Armstrong”), testified on behalf of the respondent.

17Mr. Armstrong submitted and presented evidence that shows that the appellant applied for and received a Commercial Vehicle Operator’s Registration (CVOR) Certificate commencing December 8, 2021. He also presented a corporate profile report that shows that Rabeah Abdallah is, and has been, the sole shareholder, director and officer of the appellant.

The Appellant’s Safety Record

18Mr. Armstrong testified that the safety ratings of CVOR certificate holders are based on records that take into consideration collisions, convictions and inspection infractions, which are evaluated over a ‘sliding’ two-year window. The collisions, convictions and inspection infractions are assigned certain points which are then translated into percentages. An Overall Violation Rate (“OVR”) is then produced, combining the three criteria, multiplying collision and conviction percentages x 40% each and inspection infraction percentages x 20%. An OVR can also be reviewed by non CVOR holders by searching the Registration Identification Numbers (“RIN”) on the owners of plates on commercial vehicles.

19Mr. Armstrong presented the following statistical chart, outlining the levels of OVRs of Ontario CVOR holders as of April 2023:

OVR %	Number of CVOR Holders	Percentage of Total
0 - <35%	60,160	98.39
35 - <50%	631	1.03
50 - <70%	249	0.41
70 - < 85%	44	0.07
85 - < 100%	25	0.04
≥ = 100%	34	0.05

20As noted, the Appellant’s CVOR certificate was issued on December 8, 2021. A Commercial Vehicle Operator Record (“CVO Record”) of the Appellant was produced, for the period of December 8, 2021 to October 4, 2023 which showed the Appellant’s OVR at 0.00%. A second CVO Record of the Appellant for the period of March 5, 2022 to March 4, 2024 shows an OVR of 27.35%.

21The Registrar submits that the increase of the Appellant’s OVR % from 0.00% to 27.35% is partially due to vehicles being transferred to under the umbrella of the Appellant from under the umbrella of Mr. Abdallah’s RIN CVOR. The Registrar submits that, regardless of the transfer of those vehicles along with their OVRs, the increase of the Appellant’s OVR % is significant and provides reason to believe that the Appellant will not operate a commercial vehicle safely.

22The Appellant did not submit any evidence regarding its increased OVR % which disputed to the Registrar’s evidence and position.

23Following the Cancellation Order, the Appellant attended a Show Cause Meeting on October 17, 2023 (the “Show Cause Meeting”). At the Show Cause Meeting the Appellant produced a copy of the White Oaks Safety Action Plans and Procedures (“Action Plan”), in which the Appellant outlined those plans and procedures to assist in ensuring the safe conduct of its operations.

24The Registrar submits that, since the production of the Action Plan, the OVR %s of both the Appellant and of Mr. Abdallah have increased, leading the Registrar to the conclusion that the Action Plan had no positive outcomes.

25Regarding the Action Plan and the Registrar’s position with respect to the same, the Appellant made no submissions, with the exception that he now meets with his drivers on a weekly basis to speak about safety.

26I concur with the Registrar in that, based upon the increased OVR %, the Action Plan does not seem to have assisted the Appellant in its goal of an improved safety record. I also note, the Appellant led no evidence with respect to the implementation of any specific recommendations of the Action Plan with the exception of the weekly meeting with his drivers.

27However, considering the evidence with respect to the Appellant’s record alone, I do not agree with the Registrar’s position that it provides reason to believe that the Appellant will not operate a commercial vehicle safely. Although the Appellant’s OVR has increased to 27.35%, that percentage is still in the top level of CVOR holders. I find that cancelling the Appellant’s CVOR on this basis alone would be unwarranted.

The Appellant’s alleged affiliation with related persons

Explicit Works

28Mr. Armstrong presented a Corporate Profile Report dated October 6, 2023 that shows that 1000401227 Ontario Corp. operating under the business name of Explicit Works (“Explicit”) was incorporated on December 30, 2022. The Profile Report also names Rabeah Abdallah and Abdulrouff Kazoun as the directors of the corporation.

29Mr. Abdallah testified that he had met Mr. Kazoun through the towing industry. Mr. Abdallah testified that his involvement with Explicit was a “side hustle”, hoping to earn income from a body shop that Mr. Kazoun was to operate under the name of Explicit. Mr. Abdallah testified that he never subsequently received any monies from Explicit.

30Explicit applied for a CVOR certificate, but was refused on July 3, 2023 due to its safety record and its affiliations with persons including the Mr. Abdallah and Mr. Kazoun. Part of Mr. Kazoun’s record includes Motor Vehicle Collision Report (“MVCR”) dated July 22, 2022 which reveals an at-fault fatality collision on that date involving a truck driven by Mr. Kazoun and a pedestrian. Explicit did not appeal the refusal to issue a CVOR certificate.

31Mr. Armstrong presented the notes of the Show Cause Meeting dated October 17, 2023. At that meeting, Mr. Abdallah, on behalf of the Appellant, advised that Explicit was his and Mr. Kazoun’s company and that the company had 2 tow trucks. Mr. Abdallah advised that Explicit was “ending” and the two trucks were to be divided between the Appellant and a third company. Mr. Abdallah advised that the two trucks had previously been in his name personally but had since been transferred into the Appellant’s name.

32Mr. Armstrong presented a Commercial Vehicle Inspection Report dated September 1, 2023 which shows Explicit operating a tow truck while using the CVOR number of the Appellant.

33Mr. Abdallah testified that, since the Show Cause Meeting, he does not have any communication with Mr. Kazoun nor any involvement with Explicit. Mr. Abdallah testified that Explicit has used the Appellant’s CVOR number without its permission.

34Regardless of whether Explicit used the Appellant’s CVOR number with or without its permission, I find, on the larger question, and based on the evidence before me, that the Appellant is, and has been, related to Explicit for the purposes of s. 47(1) of the Act. Mr. Abdallah, the only director and officer of the Appellant, is also one of the only two directors of Explicit.

35The question before me therefore is whether the safety record of Explicit provides a reasonable belief that the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

36This is where I find some difficulty in the Registrar’s submissions with respect to Explicit. As noted, Explicit applied for but was refused a CVOR certificate based upon its safety record and it’s affiliation with Mr. Kazoun and Mr. Abdallah. However, little evidence was proffered with respect to the safety record. Mr. Armstrong did present a Commercial Vehicle Operator Record Summary of Explicit dated October 4, 2023. However, that Record indicates that no data was found. The only substantial evidence before me of Explicit’s safety record is the MVCR of July 22, 2022 which involved a pedestrian fatality. I do not find that evidence substantial enough to draw a nexus between Explicit’s prior safety record and the Appellant’s ability to operate a commercial vehicle safely.

Rabeah Abdallah

37It is apparent from the previously noted Profile Report of the Appellant that Mr. Abdallah is and has been the only officer and director of the Appellant. Mr. Abdallah acknowledged that this is the case. As such, I find that Mr. Abdallah is related to the Appellant for the purposes of s. 47(1) of the Act.

38The Registrar submits that the past conduct and safety record of Rabeah Abdallah creates a reasonable belief that the Appellant will not operate a commercial vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety based upon the following:

a) Increased OVR

39Regarding the safety record of Mr. Abdallah, as noted, a CVO Record was produced on Mr. Abdallah by RIN searches on the commercial vehicles which were plated under Mr. Abdallah’s name.

40Mr. Armstrong presented a Carrier Safety Record Review dated October 4, 2023 based on the RIN searches. The Review showed that over the 20-month period between January 16, 2022 and September 4, 2023, Mr. Abdallah had 3 commercial vehicles registered. The Review revealed an OVR of Mr. Abdallah of 41.6%, which includes 3 convictions consisting of 2 Fail to Surrender Inspection Reports and 1 Disobey Red Light.

41Mr. Armstrong also presented a CVO Record of Mr. Abdallah dated February 14, 2024 which shows that his OVR had increased from 41.6% to 108.70%, consisting of 7 convictions over the 24-month period of January 16, 2022 to January 15, 2024. Those convictions include the 3 previously mentioned convictions plus Speeding, Operating a Vehicle Without Insurance, Disobeying Police Signal and Disobey Legal Sign.

[42] The Registrar submits that the increase of Mr. Abdallah’s OVR from 41.6% to 108.70% is alarming and consists of convictions which show a continuing pattern of behaviour involving failing to surrender, speeding and having no insurance.

43The Appellant led no evidence, nor any submissions, with respect to Mr. Abdallah’s increased OVR.

b) Operating Without a Tow Operator Certificate

44The Registrar further submitted a letter from the Ministry of Transportation dated December 21, 2023 denying the Appellant’s application for a Tow Operator Certificate based upon a past weapons prohibition on Mr. Abdallah.

45Mr. Abdallah testified that he acknowledges the denial of that Certificate as well as the weapons prohibition. Mr. Abdallah testified that the weapons prohibition was the result of a mistake that he made 10 years ago.

46According to subsection 2(d)(i) of Ontario Regulation 167/23 of the Towing and Storage Safety and Enforcement Act, 2021 (“TSSEA”), the weapons prohibition disqualified the Appellant from holding a tow driver, tow operator, or vehicle storage certificate.

47The Registrar further submitted a Towing and Vehicle Storage Complaint dated January 27, 2024. In that complaint, Greg Pearson of the London Police Service outlined his encounter with Rabeah Abdallah, who was operating a tow truck owned by the Appellant on January 26, 2024 without a Tow Operator’s Certificate. As a result of the encounter, the vehicle was seized and Mr. Abdallah was charged under the provisions of TSSEA.

48Mr. Abdallah offered no testimony, nor offered submissions with respect to the operating of the tow truck on January 26, 2024, despite having been denied a Tow Operator’s Certificate in December, 2023.

c) Stunt Driving

49The Registrar presented a letter from the City of London to the Appellant dated July 18, 2023, advising of a 28-day suspension of the Appellant’s Tow Truck Business Licence due to an incident of stunt driving in one of its trucks on July 7, 2023. The notes of the Show Cause Meeting of October 17, 2023 disclose that Mr. Abdallah acknowledged that he was the driver involved in the stunt driving incident.

d) Lending out the Appellant’s CVOR number

50The Registrar submits that Mr. Abdallah allowed other entities to use the CVOR number of the Appellant.

51The Registrar presented the notes of the Show Cause Meeting in which Rabeah Abdallah acknowledged that he loaned the Appellant’s CVOR number to a company known as London Towing and Transport. At the Show Cause Meeting, the Deputy Registrar advised the Appellant that lending a CVOR number to another entity is not allowed. Mr. Abdallah then acknowledged that he “does know that now”.

52The Registrar also submitted an Application for Vehicle Registration dated March 3, 2023 on which the registrant, Explicit, was seeking registration of a truck. As that vehicle had a gross weight of 11,000 kilograms, a CVOR number was necessary to enter on that application. Explicit listed the Appellant’s CVOR number on the application.

53The Registrar further submitted a Commercial Vehicle Inspection Report dated September 1, 2023 involving the inspection of an Explicit vehicle. The report states, “[Explicit] was refused CVOR. At the time of inspection, they were attempting to borrow a CVOR from White Oaks Towing.”

54Mr. Abdallah testified that Explicit was using the CVOR number of the Appellant without his approval.

55I accept that Mr. Abdallah may have been unaware of the restriction on allowing other entities to use the Appellant’s CVOR. However, I cannot accept that Explicit used the Appellant’s CVOR number without the Appellant’s approval, as the evidence has established that Mr. Abdallah is a director of both Explicit and the Appellant. As such, Mr. Abdallah had, or should have had, control in both of those entities and should have used that control to prevent Explicit from using the Appellant’s CVOR number. Either Mr. Abdallah, as a director of Explicit, authorized the use of the Appellant’s CVOR number, or he failed to exercise control over Explicit as was within his authority and responsibility to do so. Neither scenario leads to a favourable conclusion for Mr. Abdallah.

Conclusion Regarding Rebeah Abdallah

56I agree with the Registrar that the OVR of Mr. Abdallah increased at an alarming rate, to an unacceptable level of 108.70%. Of particular concern is that this increase occurred after the Notice of Cancellation and the Show Cause Meeting and after convictions, collisions and inspection percentages had been transferred from Mr. Abdallah’s record to that of the Appellant (to the effect that Mr. Abdallah’s OVR should have reduced, not increased, after those transfers).

57I also agree with the Registrar that the items listed on his convictions (ie: lack of insurance, speeding, fail to produce inspection reports, etc.), fits the narrative of the history of Mr. Abdallah, that of a careless and casual adherence to the requirements of the Act and other standards incumbent upon a CVOR holder. Indeed, continuing to operate a tow vehicle on January 26, 2024 after having been denied a Tow Operator’s Certificate on December 21, 2023 indicates that Mr. Abdallah continues to behave with a disregard to the requirements of the Act and the standards of his industry.

58On the basis of the evidence before me, I conclude that the safety record and the conduct of Mr. Abdallah establishes reason to believe that the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety

59I also conclude that there is a sufficient nexus between Mr. Abdallah’s past conduct and the Appellant’s ability to operate a commercial motor vehicle safely. Mr. Abdallah is the sole owner, director and officer of the Appellant. He has the singular care and control of the Appellant and its CVOR certificate. As Mr. Abdallah’s behaviour has been, as noted, careless and casual, there is no reason to believe that will not be increasingly reflected in record of the Appellant itself.

Conclusion

60Based on the above, I find that the respondent has established that there is reason to believe, having regard to the safety record of the Appellant or of a person related to the Appellant, in particular the record of Rabeah Abdallah, the Appellant will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

What is the appropriate sanction?

61I am not bound to accept the outcome proposed by the respondent. I find, however, that it is appropriate in the circumstances. The Appellant has not established that other sanctions would sufficiently protect public safety or that the Appellant can be trusted to comply with conditions placed on registration.

62The Appellant was provided with valuable insights, information and recommendations from the Registrar at the Show Cause Meeting as to how to improve its record and to ensure the safe management of its operations. This would have assisted its ability to maintain its CVOR certification. Instead, there is little, if any, evidence that the Appellant, and its principal, Mr. Abdallah, made any improvements to the Appellant’s ability to operate safely. Indeed, the evidence shows that the Appellant’s and Mr. Abdallah’s OVRs increased after the Show Cause Meeting.

63As such, I confirm the Registrar’s decision.

ORDER

64Pursuant to s. 50(2) of the Act, the Tribunal confirms the Registrar’s order to cancel the Appellant’s CVOR certificate and vehicle registrations 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

Jeffery Campbell, Vice-Chair