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 made under sections 47 and 47.1 of the Act

Between:

We Mix It Inc.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Matthew Muto, Owner Jack Masterman, Counsel Mackenzie Laforet, Counsel

For the Respondent: Patrick Moore, Counsel Dan Armstrong, Representative

Reporters: Taha Azdas, Elizabeth Pilbrow, Danice Brown

Heard by Videoconference: April 22, 23, 24 and 25, 2024

REASONS FOR DECISION AND ORDER

BACKGROUND

1We Mix It Inc. (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 on October 17, 2023 to cancel a Commercial Vehicle Operator’s Registration (“CVOR”) certificate and to seize the plate portion of any permits and number plates registered in the Appellant’s name.

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.

3Matthew Muto (“Mr. Muto”) is the sole director, officer and shareholder of the Appellant. He testified on behalf of the Appellant.

ISSUES

4The 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

5I 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.

b. I am satisfied that this is an appropriate case for conditions. I therefore vary the Registrar’s order as set out at the conclusion of this decision.

LAW

6Under 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.

7Section 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.

8Section 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).

9The 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 ought to be cancelled. The Tribunal owes no deference to the Registrar in arriving at its decision.

10According 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, once the relevant facts are established, 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.

11The “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.

12According 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.

13Further, 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

14The Respondent submits that, under the definition in s. 17.4 of the Act, the Appellant is related to Standard Ready-Mix Inc. (“Standard”) and Metrix Redi-Mix Inc (“Redi-Mix”), each of whose CVOR certificates were canceled by way of a Cancellation and Seizure Order dated March 4, 2021.

15The Respondent submits that the Appellant is related to Standard and Redi-Mix by way of its relationship with the directors and officers of Standard and Redi-Mix and its relationship with a separate corporation, Metrix Ready-Mix Ltd. (“Ready-Mix”). Ready-Mix is a cement supplier company located at the same address as Standard.

16Dan Armstrong, Senior Program Administrator for the Ministry of Transportation (“Mr. Armstrong”), testified on behalf of the Respondent. Mr. Armstrong presented evidence that shows Stephen Della Fazia and Gino Della Fazia are officers of Ready-Mix.

17Mr. Armstrong further presented evidence with respect to the Redi-Mix, Standard and Ready-Mix:

(a) Stephen Della Fazia is a director and officer of Redi-Mix and is an officer of Ready-Mix;

(b) Gino Della Fazia is an officer of both Redi-Mix and Ready-Mix;

(c) Frank Affatato (“Mr. Affatato”) is a director and officer of Standard.

(d) The corporate address of Ready-Mix is 92 Kenhar Drive, Toronto, Ontario.

(e) The corporate address of Standard is 92 Kenhar Drive, Toronto, Ontario

18Stephen Della Fazia is also the sole officer and director of Redmack Truck Centre Ltd. (“Redmack”), a truck maintenance company located at 164 Fenmar Drive, Toronto, Ontario. Redmack is also a licenced motor vehicle inspection station, licenced to conduct inspections and to issue safety standard certificates.

19Mr. Armstrong presented evidence that shows that the Cancellation and Seizure Order for Standard (and it’s affiliate Redi-Mix) was appealed to the Tribunal where the Cancellation and Seizure Order was confirmed by this Tribunal (see 2021 CanLII 124066). The Tribunal’s decision was then upheld in a decision of the Divisional Court dated April 27, 2022 (see 2022 ONSC 2496). Subsequently, both Standard and Redi-Mix ceased operations on May 2, 2022.

Background of the Appellant We Mix It Inc.

20Mr. Muto testified that he incorporated the Appellant and obtained its CVOR certificate in August 2021. The Appellant took possession of three trucks from Redi-Mix late that summer. He obtained a fourth truck in November 2021 and by April 2022, the Appellant had five trucks, all purchased from Redi-Mix. At the time of the Appellant’s Show-Cause meeting dated August 21, 2023, the Appellant owned 71 trucks, all purchased from Redi-Mix.

21Mr. Muto testified that when he was in grade 8, he became acquainted with John Giannatiempo. Mr. Giannatiempo provided Mr. Muto with a job at Redi-Mix as a general labourer; sweeping, working in parts and doing yardwork. He testified that, during his years working at Redi-Mix, he developed the goal of purchasing and renting out cement trucks. He approached Gino Della Fazia in 2021 regarding the possibility of purchasing some of the older trucks from Redi-Mix.

22Mr. Muto testified that as he did not have the funds to purchase more than one or two older trucks, he and Gino Della Fazia entered into an agreement that the Appellant would purchase trucks on the basis that the payment for the trucks would be facilitated by Appellant transporting product for Ready-Mix at a reduced rate.

23The Registrar disputes Mr. Muto’s version of the beginnings of the Appellant. The Registrar points to the notes of the Show Cause Meeting dated August 21, 2023, regarding the Notice of Cancellation and Seizure of the Appellant’s CVOR. The notes of the Show Cause Meeting indicate that Mr. Muto was approached by the Della Fazias about starting his own business, rather than Mr. Muto approaching Gino Della Fazia.

Is the Appellant related to Redi-Mix and/or Standard pursuant to s. 17(4)(c) of the Act?

24The Respondent submits that that the Appellant was controlled or managed by Redi-Mix and/or Standard, either directly or indirectly. The Respondent submits that, upon, and in anticipation of, losing its CVOR certification, Redi-Mix and Standard have continued their operations through the Appellant by making the Appellant a de facto department of Ready-Mix.

25The Respondent submits the following factors with respect to the relationship of the Appellant with Redi-Mix, Standard and Ready-Mix.

a. The purchase arrangement of the Appellant’s vehicles

26With respect to the arrangement for payment for the trucks purchased from Redi-Mix, Mr. Muto testified that there was no written agreement, but, rather, it was a handshake arrangement.

27Mr. Armstrong presented Vehicle Records showing the transfer of trucks from both Redi-Mix and Standard. Bills of sale between the Appellant and Redi-Mix and Standard list purchases of trucks and trailers sold to the Appellant, some for as little as $500.00. He also presented a bill of sale between the Appellant and Net Truck Sales Limited, listing 4 truck sales for the same amount. The Appellant testified that it was his understanding that Net Truck Sales was contracted with Ready-Mix to assist in the sale of Redi-Mix’s fleet of trucks.

28Mr. Armstrong also presented numerous bills of sale of equipment from Standard to the Appellant.

29Mr. Armstrong further presented records of vehicles transferred from Redi-Mix, Standard and Net Truck Sales to the Appellant.

30As noted, the arrangement for the payment of the trucks and equipment purchased from Redi-Mix was for the Appellant to reduce the hourly rate that it charged Ready-Mix for the transport of cement for their customers. Mr. Muto testified that the reduced rates would be $105.00 per hour for 9 metre trucks and $115.00 per hour for 10 metre trucks. The Appellant produced “Sales by Customer Detail” sheets which verify those hourly rates. However, the Appellant produced no evidence which quantifies how much was initially owed to Redi-Mix for the purchase of their vehicles, nor how much is currently owed.

31The Respondent also referred to a Metrix Ready-Mix Vendor Quick Report which indicates that Ready-Mix has invested in the Appellant, not only in the transfer of vehicles, but also financially. Two examples are cheques to the Appellant in the amount of $350,000.00 on November 4, 2021 and $200,000.00 on January 17, 2022. Upon questioning, Mr. Muto admitted that this represents a “a big investment in his company”. Mr. Muto offered no explanation as to the purpose or terms of that “investment”.

32The Appellant submits that the transfer of the vehicles to the Appellant on the terms agreed upon and the investment of Ready-Mix in the Appellant are not improper.

33In review of the evidence, I find that the financial arrangements between Redi-Mix and the Appellant for the purchase of the Appellant’s vehicles to be unorthodox at best. The arrangement for the purchase of the vehicles (and the “big investment” of $550,000.00 from Ready-Mix) is either a fortuitous arrangement between a company that has lost its CVOR certificate coupled with an ex-employee who was seeking to begin his own cement truck rental business, or a scheme by Redi-Mix to carry on business using that ex-employee and the Appellant’s CVOR. I conclude that the Respondent has presented enough evidence to establish a reasonable belief that it is the latter. Such a questionable financial arrangement for the purchase of the trucks between the Appellant and Redi-Mix at or around the time of the loss of Redi-Mix’s and Standard’s CVOR certificates (as well as the investment of over a half million dollars) cannot help but raise that reasonable belief. Concluding as much, I find that there is reason to believe that Redi-Mix manages or controls the Appellant pursuant to s. 17(4)(c) of the Act.

b. Using the services of Redi-Mix and Standard

34The Respondent submitted that the Appellant is related to Redi-Mix and Standard in that the Appellant utilized certain services as follows:

i. Mr. Muto testified that Gina Gulla (“Ms. Gulla”), an employee of Ready-Mix, performed the payroll, T4s, remittances and WSIB documentation for the Appellant at no cost to the Appellant. As noted, Stephen Della Fazia is a director of both Ready-Mix and Redi-Mix.

ii. Mr. Muto testified that the Appellant utilizes, at no cost, the services of Redmack Truck Centre, a maintenance facility located at the Kenhar address. Redmack Truck Centre Ltd.’s sole officer and director is Stephen Della Fazia.

35The Appellant admits to the use of both Ms. Gulla and Redmack. Mr. Muto advised that the services of Ms. Gulla and Redmack are a part of the agreement of the Appellant’s purchase of the vehicles. The Appellant submits that there is nothing improper with those arrangements.

36I have already found that Redi-Mix sold the vehicles to the Appellant in order to continue its operations upon the loss of its CVOR, giving rise to the reasonable belief that that Redi-Mix manages or controls the Appellant. As, by the Appellant’s own admission, the use of the services of Ms. Gulla and Redmack both form a part of that arrangement, I conclude that the use of their services confirms the reason to believe that Redi-Mix manages or controls the Appellant pursuant to s. 17(4)(c) of the Act.

c. Matthew Muto’s Facebook status

37The Respondent presented a Facebook Profile page of Matthew Muto which lists his employment as Operations Manager/Coordinator at Metrix Ready Mix and Owner and CEO of We Mix It.

38Upon questioning, Mr. Muto testified that he was never an operations manager/coordinator at Ready-Mix. He stated that he posted that as he thought that the title “may look good.”

39I note that, aside from the Facebook profile page, there is no other evidence to suggest that Mr. Muto was what he posted. I am reluctant to draw a conclusion that Mr. Muto was, indeed an operations manager/coordinator solely on the basis of one social media entry.

d. Signage on the Appellant’s vehicle

40The Respondent presented photos of an Appellant truck that identified the company name as Metrix Ready-Mix, with a smaller sign indicating We Mix It Inc. with its CVOR number in a lower part of the tractor.

41The Appellant testified that he kept the sign for Metrix Ready-Mix on the truck as all of his deliveries were receiving cement from Ready-Mix. He wanted his customers to readily identify their deliveries.

42While I note that this is improper business practice, and justifiably is of concern to the Respondent, I do not find that this, in itself, rises to the level of indicating a relationship of the Appellant with Redi-Mix, Standard, or, indeed, Ready-Mix according to s. 17(4)(c) of the Act.

e. Union dispute with respect to the laid off employees of Ready-Mix

43Following the termination of Ready-Mix employees upon the loss of the CVOR for Redi-Mix and Standard, on May 9, 2022, the employee’s union, International Union of Operating Engineers, local 793 (the “union”), grieved Ready-Mix for termination pay and anticipated severance pay.

44After the union made further investigations, it also made application to the Ontario Labour Relations Board on July 6, 2022 with respect to the collective agreement that Ready-Mix had with the employees had with its members. In that application the union submitted that, among other respondents to the application, Ready Mix, Redi-Mix and Standard and the Appellant constituted one employer and were under common direction and control within the meaning of s. 1(4) of the Labour Relations Act, 1996, S.O. 1995, c. 1, Sched. A. The union also pled that the respondents to that application, including the Appellant, were part of a scheme to continue the operations of Ready-Mix under a non-union environment, circumventing Ready-Mix’s bargaining and collective agreement obligations.

43Subsequent to the application to the Labour Relations Board, two settlement discussions occurred in July and September, 2022. According to the resulting Memorandum of Settlement (MOS), dated October 26, 2022, the Appellant agreed that, for the purposes of the Labour Relations Act, it will be bound by the Metrix Ready Mix Collective Agreement. The Appellant also agreed to severance and rehiring terms of Ready Mix’s former union members.

44Melissa Atkins-Mahaney, Labour Relations Manager for local 793, testified that, although the Appellant was a respondent in the application, Mr. Muto did not attend the negotiations. Rather, Stephen Della Fazia attended both discussions and Mr. Affatato attended one.

45In a summary letter to union members dated November 7, 2022, the union advised that it had conducted an investigation which concluded that Ready-Mix had not ceased operations but was continuing its operations through the Appellant. In that letter, the union advised that “Metrix Ready Mix Ltd. and We Mix It have agreed in writing that they are a related employer within the meaning of the Labour Relations Act.” The letter went on to state that We Mix It agreed to provide the union better access to its yard than previously under Ready-Mix, as well as to enter into early collective bargaining with the union.

46The Respondent submits that the Appellant admitted to being a related entity with Ready-Mix whose directors and officers were also those of Redi-Mix and Standard.

47The Appellant submits that it merely acknowledged that it is a related employer for the purpose of the Labour Relations Act, and not for the purpose of the Highway Traffic Act.

48The Respondent also submits that the attendance of Stephen Della Fazia and Mr. Affatato and the absence of Mr. Muto at the negotiations with the union, indicates that Stephen Della Fazia and Mr. Affatato were negotiating on behalf of the Appellant as well as the other labour grievance respondents.

49The Appellant submits that Mr. Muto did not attend the negotiations as its counsel was in attendance.

50I agree with the Appellant in that its acknowledgement to the Labour Relations Board that it is a related employer is in relation to the Labour Relations Act, and not particularly with respect to the issues involved in this hearing. The Appellant did not admit to being a related company, but, rather, a related employer. This makes sense in the context of the application that was at dispute in that context.

51I also accept the Appellant’s explanation for its non-attendance at the settlement negotiations. However, in conceding that it is a related employer, the Appellant agreed to actions which inextricably link it to Ready-Mix, Redi-Mix and Standard. The Appellant agreed that it will be bound by Ready-Mix’s Collective Agreement, paying severance of Ready-Mix’s laid off employees and rehiring of its employees. This goes beyond a mere relationship of a vendor/purchaser (the Appellant/Ready-Mix) and that of an entity (the Appellant) with a sole customer (Ready-Mix). These actions provide sufficient grounds to conclude that there is a reason to believe that the Appellant and Redi-Mix, Standard and Ready-Mix are related companies and that the Appellant is under the control, or being managed by Ready-Mix pursuant to s. 17(4)(c) of the Act.

f. Redi-Mix and Standard director’s and officer’s involvement with the Appellant

52The Respondent presented evidence which it says supports that Gino Della Fazia acted as an officer of the Appellant in the following ways:

i. Allesandro Villa (“Mr. Villa”), an ex-employee of the Appellant, testified that when working for the Appellant, he would hear Gino Della Fazia instructing drivers on the speaker phone;

ii. Andrew Saunders (“Mr. Saunders”), the union’s Director of Health and Safety, was the liaison between the union and the Appellant following the settlement agreement of October 26, 2022. Mr. Saunders testified that he would visit the operations of the Appellant at the property of 92 Kenhar Drive, to address employee issues. He testified that, when dealing with issues regarding the Appellant, he never dealt with Mr. Muto, but, rather, with Mr. Affatato. Mr. Saunders testified that Mr. Affatato, however, could not make decisions without consulting either Stephen Della Fazia or Gino Della Fazia.

53The Respondent presented evidence which alleges that Stephen Della Fazia acted as an officer of the Appellant in the following ways:

i. A letter of termination sent by the Appellant to an employee dated February 9, 2023, was signed by Stephen Della Fazia, Director;

ii. Mr. Villa testified that, when seeking to return to work after a medical leave in June, 2023, it was Stephen Della Fazia who decided that he could not return to work without a doctor’s note; and

iii. As noted, Mr. Saunders testified that, in dealing with union issues with the Appellant, it was either Stephen Della Fazia or Gino Della Fazia who would be consulted in the making of those decisions.

54The Respondent presented evidence which alleges that Mr. Affatato acted as an officer of the Appellant in the following ways:

1. As noted, when Mr. Saunders was liaising with the Appellant at the Kenhar property, it was Mr. Affatato that he communicated with, rather than Mr. Muto.

2. The MOS of October 26, 2022 listed Mr. Affatato as the point person for the union to contact in order to coordinate visits to the Appellant’s yard and shop at 92 Kenhar Drive.

3. As already noted, it was Mr. Affatato, not Mr. Muto, that Mr. Saunders communicated with regarding union issues with the Appellant during site visits.

55The Appellant submits that there is no compelling evidence that it is being controlled by Redi-Mix or Standard. It points to the testimony of Mr. Muto who testified that it is he who has the only signing authority, who does the hiring and firing at We-Mix-It and who trains and disciplines its drivers.

56I find that the activities of Stephen Della Fazia and Frank Affatato are activities that do constitute management of the Appellant. Specifically, the termination letter signed by Stephen Della Fazia and dated February 9, 2023, his advising of Mr. Villa’s return to work and Mr. Saunders’ testimony that Stephen Della Fazia was involved in the Appellant’s union issues all point to management involvement of the Appellant by Stephen Della Fazia.

57Also, specifically with Mr. Affatato, his union activities on behalf of the Appellant are, are those which typically constitute management duties.

58I therefore, conclude that, due to the management activities of Stephen Della Fazia and Mr. Affatato, both Redi-Mix and Standard are related to the Appellant pursuant to s. 17(4)(c) of the Act.

Conclusion regarding s. 17(4)(c) of the Act.

59Based on the financial arrangements for the Appellant’s purchase of the vehicles from Redi-Mix and Standard, the gratuitous use of the services of Ms. Gulla and Redmack, the union dispute involving the laid off employees of Ready-Mix, as well as Stephen Della Fazia and Frank Affatato’s managerial involvement with the Appellant, I find that the Appellant is related to and is directly or indirectly controlled by Redi-Mix, Standard and Ready-Mix, pursuant to s. 17(4)(c) of the Act.

Is the Appellant related to Redi-Mix and Standard pursuant to s. 17(4)(d) of the Act?

60The Respondent submits that the Appellant are related to Redi-Mix and Standard, pursuant to s. 17(4)(d) of the Act, through both the Appellant, Redi-Mix and Standard having common officers. The Respondent submits that the officers of Redi-Mix and Standard are acting as officers of the Appellant as defined by s. 1(1) of the Business Corporations Act, R.S.O. 1990, Chapter B.16 (“BCA”), which defines an officer of a corporation as:

“officer” means an officer designated under section 133 and includes the chair of the board of directors, a vice-chair of the board of directors, the president, a vice-president, the secretary, an assistant secretary, the treasurer, an assistant treasurer and the general manager of a corporation, and any other individual designated an officer of a corporation by by-law or by resolution of the directors or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any such office;” [italics mine]

61The Respondent submits that the previously noted actions of Stephen Della Fazia, Gino Della Fazia and Frank Affatato indicate that they are officers of the Appellant, pursuant to s. 1(1) of the BCA.

62The Appellant submits that s. 1(2) of the BCA states that a body corporate shall be deemed to be a subsidiary of another body corporate if it is controlled by that other body. The Appellant submits, and it was the evidence of Mr. Muto, that it is Mr. Muto who controls the Appellant (hiring and firing, disciplining, purchasing, etc.) and not the above-named individuals.

63I find that the Appellant’s argument is not particularly on spot. The Respondent is not alleging that the Appellant is a subsidiary of the Redi-Mix or Standard. It submits that the Appellant is related to Redi-Mix and Standard, according to s. 17(4)(d) of the Act. The Respondent submits that the evidence establishes that Stephen Della Fazia, Gino Della Fazia and Frank Affatato performed the functions of an officer, thereby deeming them as officers of the Appellant by virtue of s. 1(1) of the BCA.

64I do not accept the Appellant’s argument with respect to s. 1(2) of the BCA. I do, however, accept the Respondent’s submissions that the named individuals are officers by virtue of their functional involvement.

65As I highlighted above with italics, the definition of “officer” found in s. 1(1) of the BCA includes one who “performs functions for a corporation similar to those normally performed by an individual occupying any such office”. In my interpretation of this definition in the BCA, the phrase “such office” refers to “the chair of the board of directors, a vice-chair of the board of directors, the president, a vice-president, the secretary, an assistant secretary, the treasurer, an assistant treasurer and the general manager of a corporation”, i.e. the examples of an officer found in the BCA’s definition.

66I find that the activities of Stephen Della Fazia and Frank Affatato, previously noted, constitute the activities of those of the general manager.

Conclusion regarding s. 17(4)(d) of the Act.

67As such, I find that the activities of both Stephen Della Fazia and Frank Affatato rise to the level of the “such office” sufficient to deem them as officers of the Appellant. As Stephen Della Fazia was the director and officer of Redi-Mix and Mr. Affatato was the director and officer of Standard, and their activities deem them as officers of the Appellant, I do conclude that the Appellant is related to Redi-Mix or Standard as defined by s. 17(4)(d) of the Act.

What is the appropriate sanction?

68Based on the evidence before me, I have concluded that the Appellant is related to Redi-Mix and Standard and Ready-Mix, on the basis of both ss. 17(4)(c) and (d) of the Act. Accordingly, pursuant to ss. 47(1)(f) and 47(2.1), I may consider the safety record of those former CVOR certificate holders when evaluating whether there is reason to believe 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.

Safety Records of Redi-Mix and Standard

69The safety records of Redi-Mix and Standard were of such that their CVOR certificates were cancelled by the Registrar.

70As noted above, the Cancellation and Seizure Order affecting both Redi-Mix and Standard was dated March 4, 2021. After their appeal to the Tribunal and a subsequent appeal to the Divisional Court, the Order was confirmed on April 28, 2022, with the CVOR certificates cancelled on May 2, 2022. The Appellant’s CVOR certificate was issued on August 31, 2021.

Safety Record of the Appellant

71Mr. Armstrong presented a violation rate statistics chart as of April 2023 which revealed the violation rates of the total CVOR certificate holders in Ontario:

Violation Rate Percentage (%)	Number of CVOR Holders	Percentage of Total (5)
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

72The Respondent presented a Commercial Vehicle Operator Record of the Appellant covering the period of August 31, 2021 to July 10, 2023 showing an Overall Violation Rate (“OVR”) of 33.82%. A second Commercial Vehicle Operator Record for the period of October 14, 2021 to October 14, 2023 showed that the OVR of 19.37%.

73The Appellant presented a Commercial Vehicle Operator Record covering the period of March 4, 2021 to March 3, 2023 which showed an OVR to 28.91%.

74Mr. Armstrong testified the Appellant did not have any fatal collisions on its record. He also testified that the safety record of the Appellant (that being in the lowest percentage category of CVOR holders) would not typically trigger an intervention of the Registrar.

Conclusion regarding the Sanction

75Taken in isolation, separate from any other considerations, the Appellant’s safety record is adequate. Nevertheless, I have concluded that the Appellant is related to Redi-Mix and Standard, both entities who have had their CVOR certificates cancelled due to high OVRs. Also, while the Appellant has had, to this point, an acceptable OVR, I do note that it has been in operation for less than 3 years. Given the closeness of its relationship with Redi-Mix and Standard, their past safety records, and given the relatively small period of operation of the Appellant find that there is a reason to believe that the Appellant will not operate commercial vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety.

76However, given the Appellant’s heretofore acceptable safety record, I find that the concerns for public safety can sufficiently be addressed by the imposition of certain conditions in order to ensure that the Appellant will continue to operate safely and to operate more independently of other corporate entities.

ORDER

77Pursuant to s. 50(2) of the Act, the Tribunal modifies the Registrar’s Cancellation and Seizure Order dated August 2, 2023 with respect to CVOR # 206-766-975 in the name of the Appellant. Instead of cancellation, etc., the Appellant’s CVOR certificate has the following conditions:

1. For a period of 24 months from the release of this order, the overall violation rate of We Mix It Inc. must not exceed 35%;

2. We Mix It Inc. must retain an independent bookkeeper and accountant and provide proof of such retainer to the Registrar within five business days of the latter’s request;

3. We Mix It Inc. must not have any current or former director or officer in common with Redi-Mix, Standard or Ready Mix, nor allow any such current or former director or officer to act in the capacity that deems them to be an officer as defined by the Business Corporations Act;

4. We Mix It must remove all brandings of any entity other than itself from its vehicles, facilities and advertisements, and provide written confirmation to the Registrar within 30 days of this order.

Licence Appeal Tribunal

Jeffery Campbell, Vice-Chair