Kimco Steel Sales Limited v. Registrar of Motor Vehicles, 2024 CanLII 65417

Licence Appeal Tribunal File Number: 15781/CVIS

In the matter of an appeal under section 50.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, (the “Act”) from an impoundment pursuant to section 82.1 of the Act.

Between:

Kimco Steel Sales Limited

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Robert D. Riddell, Paralegal

For the Respondent: Patrick S. Moore, Counsel

Held by Videoconference: June 5, 2024

OVERVIEW

1The appellant, Kimco Steel Sales Limited, appeals the decision of the Registrar of Motor Vehicles (the “respondent”) of March 15, 2024, to impound its 2009 trailer for 15-days after an inspection found a “critical defect” under s. 82.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”), namely over 50% defective wheel brakes. The impoundment followed an inspection at the Ministry of Transportation designated inspection station off of Highway 401.

2In this case, the appellant submits that the trailer did not have a critical defect when it was on the highway and, instead, likely developed the critical defect while at the inspection station or during the inspection.

ISSUES

3The issue to be decided in this hearing is:

i. Whether the trailer had a critical defect at the time of the inspection under section 82.1 of the Act.

RESULT

4Having considered all the evidence, I find that the appellant has not satisfied its burden. I find that the trailer had a critical defect as defined under the Act and section 7(2)5 of O. Reg. 512/97 (“Regulation”) and, therefore, the impoundment is confirmed.

The Law

5A commercial vehicle or any trailer drawn by it may be impounded if, on inspection, the vehicle is found to have a “critical defect” as defined under section 82.1 of the Act and section 7(2) 5 of O. Reg. 512/97 (the “Regulation”). In this case, the Registrar impounded the trailer, alleging that there was a critical defect because, when inspected, over 50% of the brakes on the trailer were defective, specifically, “over 50% Defective Wheel Brakes.”

6The owner of a commercial vehicle or trailer which has been impounded because of a critical defect pursuant to s. 82.1 of the Act may, pursuant to s. 50.3, appeal the impoundment only on one of the two grounds set out in s. 50.3(3) of the Act:

(a) that the commercial motor vehicle or trailer that is impounded was stolen at the time the vehicle was detained under section 82.1; or

(b) that the commercial vehicle or trailer had no critical defects at the time of the inspection under section 82.1.

7In this case, the appellant relies upon section 50.3(3)(b), i.e., that the trailer had no critical defects at the time of the inspection. The onus is on the appellant to establish this.

8Under s. 50.3(5) the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.

ANALYSIS

Whether the trailer had a critical defect at the time of the inspection under section 82.1 of the Act.

9For the following reasons, I find that the trailer had a critical defect at the time of the inspection under section 82.1 of the Act.

10The Notice of Impoundment states that the defect as prescribed by the Regulation is “over 50% Defective Wheel Brakes.” The Commercial Vehicle Inspection Report dated March 15, 2024, states: “5th axle R/S and L/S, 6th axle R/S and L/S brakes inoperative. No push rod travel when brakes applied.” Similarly, the Notice to Registrar of Critical Defect Inspection states: “5th axle R/S and L/S, 6th axle R/S and L/S brakes inoperative.”

11The Tribunal accepts the testimony of Ministry of Transportation officers who testified that four of the six brakes on the trailer were not functioning, which is in excess of the 50%. Officers Nicholas Brown and Randal Hare testified that they each conducted a critical defect inspection and found that when the brakes were applied there was no travel or movement on the push rod on the last two axles on the trailer. They determined that there was a critical defect related to the trailer brakes.

12In addition, the appellant agrees that a defective valve caused over 50% of the trailer’s brakes to be inoperable which is a critical defect.

13However, the appellant states that the critical defect likely occurred at the inspection station or during the inspection, and not on the highway as required in the legislation. The driver of the truck and trailer, Mr. Franz Ernstberger, testified that, on the day of the impoundment, he conducted a thorough inspection of the vehicle prior to driving it. He also testified that he inspected the vehicle again after dropping off a load, and he conducted a tug test to ensure the brakes on the trailer would hold it stationary. Mr. Ernstberger testified that he would not have driven the truck and trailer had the brakes on the trailer not worked. The appellant submits that the brakes were working to the best of Mr. Ernstberger’s knowledge. The appellant takes the position that there was a long line up at the inspection station and Mr. Ernstberger was required to repeatedly apply and release his brakes which could have caused the critical defect. Mr. Ernstberger testified he was applying the brakes repeatedly while waiting for the inspection to start. The appellant asserts that likely an accidental equipment failure occurred with the brake after it was stopped for inspection or during inspection, which was something that could not be forecasted, and no amount of maintenance could have prevented. The appellant asserts that there is also doubt as to whether the brakes would apply with the spike.

14I note that during cross-examination, both the appellant’s witnesses, Mr. Ernstberger and Mr. McIlroy, acknowledged that they did not know when the critical defect occurred. Mr. McIlroy testified that when he attended the inspection station, he observed that the valve had failed and was defective, but he had no idea when the failure occurred. Similarly, Mr. Ernstberger testified that he does not know when the critical defect occurred, and it could have occurred at the inspection. Nonetheless, I note that the plain wording of the Act is that the defect has to be found on inspection, which it was. There is no requirement in s. 82.1 that the defect must have occurred or was present while the vehicle was travelling on the highway.

15The appellant further submits that its vehicle was not on the highway at the time of the inspection as per the legislation. I find that the appellant takes a rather narrow view of the legislation. The clear wording of the legislation is a critical defect found at the time of the inspection. I further note that the designated inspection station is on the highway and its exit and entrance is off of the highway. Officer Brown testified that the only way he can enter the inspection station to attend for work is from the entrance on the highway, and that an inspection can only be completed when a vehicle is stopped and not while in motion on a highway. The evidence before me is that the vehicle came off the highway directly into the designated inspection station. The Notice to Registrar of Critical Defect Inspection notes “the vehicle was found operating on Highway 401 east bound, Township of Leeds and Thousand Islands, United Counties of Leeds & Grenville.”

16In my view, it is unknown at what time the critical defect occurred, however, it is undisputed that at the time of the inspection, there was a critical defect. I find that there was a critical defect as defined by the Act and the Regulation.

17After weighing the totality of the evidence, I find that the appellant has not met its burden on a balance of probabilities. I find that there was a critical defect as defined under the Act and section 7(2) of Regulation, and the impoundment is confirmed.

CONCLUSION

18I confirm the 15-day impoundment.

ORDER

19Pursuant to s. 50.3(5) of the Act, the Tribunal confirms the impoundment.