Tribunals Ontario / Licence Appeal Tribunal

Tribunaux décisionnels Ontario / Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15689/CVOR

An appeal under Subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from a Notice of Refusal to issue a CVOR certificate under section 17 of the Act

Between:

15647738 Canada Inc. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Daljit Singh Gill, Officer/Director For the Respondent: Patrick Moore, Counsel

Heard by Videoconference: July 10, August 19 and 20, 2024

REASONS FOR DECISION AND ORDER

OVERVIEW

115647738 Canada Inc. (the “appellant”) appealed under s. 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) to the Tribunal from an Order refusing to issue a Commercial Vehicle Operator’s Registration Certificate (“CVOR”) to the appellant made by the Deputy Registrar of Motor Vehicles (the “Registrar”) under s. 17 of the Act dated January 29, 2024 (the “Order”).

2The Registrar alleges that the Registrar has reason to believe, having regard to the appellant’s safety record and other information the Registrar considers relevant, 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 safety record of the appellant is a concern for highway safety because the appellant is related to Ikjyot Logistic Inc. (“Ikjyot”) the past holder of CVOR#: 173-043-179, which was suspended in 2017 and cancelled in 2018. In addition, the Registrar’s Notice of Further and Other Particulars dated May 8, 2024, states that the refusal is based on the appellant’s affiliation to Gill International Carriers Ltd. (“Gill International”).

3In its Notice of Appeal signed by Daljit S. Gill (“Mr. Gill) on February 28, 2024, the appellant states that it:

A. Understands the concerns raised, particularly regarding the association of the appellant with Ikjyot;

B. Acknowledging past mistakes, the appellant views them as invaluable learning opportunities and is fully committed to rectifying them. “I assure you of my personal oversight on matters of safety and compliance within the company. It is my utmost priority to elevate our safety rating, and I respectfully request…another opportunity to operate”.

C. “I am prepared for audits at any time, and I pledge that both my team and I…will take all requisite actions to bolster the company’s safety records….with an assurance of upholding exemplary standards of operation.

D. “I propose operating with only one truck initially as a demonstration of our commitment to adhering to safety regulations. Should you find any discrepancies, I wholeheartedly welcome an audit of my company or the cancellation of my CVOR. I implore you to afford me this chance”.

4The appellant did not amend its Notice of Appeal after it received the Notice of Further and Other Particulars.

ISSUES

5The issues before me are:

(a) Having regard to the appellant’s safety record and other relevant information, is there reason to believe that it will not operate commercial motor vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety?

(b) Are Ikjyot Logistics Inc. or Gill International Carriers Ltd. related to the appellant within the meaning of the Act, and if so, what impact does their safety record have on the appellant’s application for a CVOR certificate?

(c) If the answer to either the first or second issue is yes, what is the appropriate outcome?

RESULT

6For the reasons set out below, I confirm the Order.

LAW

7Under s. 16(2) of the Act, a person who operates a commercial vehicle in Ontario is required to hold a valid CVOR certificate issued by the Registrar.

8The Registrar is required to keep a safety record of all CVOR operators as set out in s. 205(1)(c)(iii.1) of the Act.

9Section 17(1) of the Act provides that the Registrar shall issue a CVOR certificate to and renew a CVOR certificate of every person who applies for the certificate or renewal in the form approved by the Minister and meets the requirements of the Act and the regulations.

10Section 17(1.1) provides that the Registrar may issue a CVOR certificate subject to any terms and conditions that the Registrar considers appropriate.

11Section 17(2) provides that the Registrar may refuse to issue a CVOR certificate to an applicant if the Registrar has reason to believe, having regard to the applicant’s safety record and any other information that the Registrar considers relevant, that the applicant will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety.

12Section 17(3) provides that the Registrar may refuse to issue a CVOR certificate to an applicant if the applicant is related to,

(a) a person whose CVOR certificate has been cancelled, is or has been under suspension or is or has been subject to a fleet limitation;

(b) a person whose CVOR certificate suspension, cancellation or fleet limitation is under appeal; or

(c) a person who the Registrar has reason to believe, having regard to the person’s safety record and any other information that the Registrar considers relevant, will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety.

13Section 17(4) of the Act provides that an applicant is related to a person for the purpose of s. 17(3) 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, or;

(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.

14The decision of the Registrar may be appealed to the Tribunal pursuant to section 50(1) of the Act.

15The Registrar bears the onus of establishing before the Tribunal that there is reason for such belief. The Tribunal does not owe any deference to the Registrar’s decision.

16Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the Order.

EVIDENCE AND ANALYSIS

(a) Having regard to the appellant’s safety record and other relevant information, is there reason to believe that it will not operate commercial motor vehicles safely or in accordance with the Act, the regulations and other laws relating to highway safety?

17I find that the Registrar has established that there is reason to believe that the appellant, a company owned by Mr. Gill, will not operate a commercial motor vehicle safely or in accordance with the Act, the regulations and other laws relating to highway safety based on the relationship between the appellant and Ikjyot and Gill International for the following reasons.

18The corporate records show that the appellant was incorporated by Mr. Gill on January 2, 2024. Mr. Gill is named as “Chief Officer or Manager”. The record also shows that the appellant registered the business name “Windhover Transport” in January 2024 for a period of five years.

19The appellant’s CVOR application to the Ministry of Transportation does not reveal the appellant’s registered business name and that portion of the application is blank. Mr. Gill is listed as the appellant’s Director.

20As a newly incorporated company, without a CVOR, the appellant company does not have a safety record. At the hearing, the Registrar submitted that the Registrar’s reason to believe is based in part on “any other information that the Registrar considers relevant” within the meaning of s. 17(2) of the Act.

21Section 17(3) also specifically provides that the Registrar may refuse to issue a CVOR to an applicant who is related to (a) a person whose CVOR has been cancelled, is or has been under suspension, and (c) a person who the Registrar has reason to believe, having regard to the person’s safety record and any other information that the Registrar considers relevant, will not operate a commercial motor vehicle safely or in accordance with the Act, regulations and other laws relating to highway safety.

Ikjyot’s CVOR is Cancelled

22It is clear from the testimony of Britney Wilkins and document filed by the Registrar that Mr. Gill’s first company Ikjyot had a poor safety record when it had a CVOR and was under the direct or indirect control and management of Mr. Gill. Ikjyot’s CVOR was suspended in 2017 and cancelled in 2018.

23Ms. Wilkins, Senior Program Administrator testified that Ikjyot failed it’s facility audit in 2016 when Mr. Gill was President. Ikjyot’s CVOR record in January, 2017 was conditional. In 2018 Ikjyot’s CVOR was cancelled by the MTO out of concerns for highway safety.

Gill International’s Unsatisfactory Safety Record

24Based on the testimony of Brittney Wilkins, Officer Jennifer Grabar, and documents filed by the Registrar, it is clear that Gill International currently has an “unsatisfactory” safety rating assigned under s. 17.1 of the Act.

25Further, the testimony of Britney Wilkins, Officer Grabar, and documents filed by the Registrar show that Mr. Gill’s second company Gill International has had a problems with its safety record for several years, and continuing today, at a time when Gill International has been under the direct or indirect control and management of Mr. Gill. Ms. Wilkins and Officer Grabar were not cross-examined at the hearing.

26Gill International’s CVOR was suspended in 2019 for 30 days and performance conditions were placed on the CVOR certificate of Gill International for period of one year.

27Officer Jennifer Grabar testified that Gill International failed its facility audit in June, 2023 and that as a result of her audit of records, she found documentation required to be kept was missing, information was missing on some documents that were kept, and a lot of documentation was never supplied. As set out in detail in her Audit Findings in the June 16, 2023 Audit Report, Officer Grabar also expressed concern regarding an apparent lack of monitoring of drivers records, monitoring of unidentified driving time on the vehicles’ electronic logging devices (“ELD”s) and hours of service and said it would appear that there is a lack of monitoring. Officer Grabar testified that 68% audit compliance achieved is not a pass because the hours of service profile compliance rate is below 50 percent which results in a failed audit.

28I find that the respective safety records of Ikjyot and Gill International, both corporations controlled or managed by Mr. Gill as set out below, are relevant information when considering the appellant’s application for a CVOR, especially given the Registrar’s mandate of public safety.

29I find that there is reason to believe, having regard to the cancelled CVOR of Ikjyot and safety record of Gill International 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) Are Ikjyot and/or Gill International related to the appellant within the meaning of the Act, and if so, what impact does their safety record have on the appellant’s application for a CVOR certificate?

30I find that Ikjyot and Gill International are related to the appellant for the following reasons.

31The evidence is clear that Mr. Gill directly or indirectly, controls or controlled or manages or managed Ikjyot and Gill International and the appellant within the meaning of s. 17 based on the documents filed by the Registrar, the testimony of Mr. Gill, Officer Jennifer Grabar and Britney Wilkins.

32Mr. Gill controls or controlled, or manages or managed, Ikjyot, and Gill International and the appellant.

33The corporate profile of the appellant shows that it was incorporated as a federal corporation on January 2, 2024 and Mr. Gill is shown as its sole “Chief Officer or Manager”.

34The corporate profile of Ikjyot shows that Ikjyot was incorporated in 2010 and is an active Ontario business corporation. Mr. Gill is the sole Director since 2016, and the General Manager, President, Secretary and Treasurer since 2017. Mr. Gill testified that he started Ikjyot, is or was the owner, and managed Ikjyot’s daily operations including hiring drivers and other functions, in addition to driving his own truck too. On Feb 6, 2017, Mandeep Sahota authorized Mr. Gill in writing to represent Ikjyot at a meeting with the deputy Registrar. Mr. Gill attended a February 2, 2017 show cause meeting as the sole representative of Ikjyot. The notes record that Mr. Gill said he was now the general manager and looked after the day to day operation of the business.

35Although the corporate profile of Gill International shows that Gill International was incorporated in 2017 and Mandeep Kaur Gill, Mr. Gill’s former girlfriend and now wife according to his testimony, is shown as the sole Director and President since 2017, Mr. Gill admitted in cross-examination that he has been employed by Gill International in management until January, 2024 when he incorporated the appellant. Mr. Gill explained in his testimony that he incorporated Gill International to take over the business of Ikjyot for his own personal and financial reasons.

36Mr. Gill testified that he started Gill International and transferred the assets of Ikjoyt including trucks, contracts, some drivers and “everything” to Gill International in 2016 because he was going through a divorce. Mandeep Sahota, his then girlfriend and now wife, is the same person as Mandeep Kaur Gill shown on the corporate profile of Gill International.

37I find the testimony of Mr. Gill to be credible on this point. It is substantially similar to testimony given by Gill International to the Tribunal in 2018 when the Tribunal found, based on the admission of Gill international, that Gill International “…was formed to take over the business of Inkjyot(sic) because of ownership concerns when the general manager of both companies, Daljit Gill, became divorced. Mr. Gill’s former wife had an ownership interest in Inkjyot(sic)…and Mr. Gill did not want her to have a claim on his future business development. He formed the appellant and transferred Inkjyot’s(sic) trucks, drivers and good will…” to Gill International and “…kept on with the same business”. 11308 CVOR v. Registrar of Motor Vehicles, 2018 CanLII 107937 (ONLAT).

38Mr. Gill testified that his wife ultimately asked for his help and he became the manager of Gill International and he was doing “everything” for Gill International, including operations, from 2021 to 2024. He described himself as the operations manager for Gill International. Mr. Gill testified that his wife takes care of the billing and the contracts for Gill International and Gill International has a safety consultant, Aagum Trucking Experts Ltd. (“Aagum”). Mr. Gill testified that Aagum filed the appellant’s application for a CVOR which is the subject of this appeal.

39It is clear that Mr. Gill directly or indirectly controlled or managed Gill International as set out below.

40Mr. Gill admitted in cross-examination that he knew Gill International had requested an audit because his wife told him about this. He knows Gill International failed its facility audit in June, 2023 and has a conditional safety rating. Mr. Gill was significantly involved in the audit process as follows.

41Officer Jennifer Grabar, MTO’s facility auditor testified that she spoke to Mr. Gill about the audit and he was the point person at Gill International for providing documentation to her at the request of Mrs. Gill who told Officer Grabar that her husband was “managing everything” and asked that she speak to him about the audit. Mrs. Gill, Mr. Gill and Arun Singh from Aagum attended the audit entrance interview at which time Officer Grabar was told that Mr. Gill would be providing the required documentation. This is confirmed in Officer Grabar’s notes.

42Only Mr. Gill and Arun Singh attended the audit exit interview with Officer Grabar. Mrs. Gill did not attend.

43After the audit report was released, it was Mr. Gill who contacted Officer Grabar and asked her look at further information and consider changing the audit result. Officer Grabar considered the further information but did not change the audit result. Mr. Gill did not cross-examine Officer Grabar.

44Officer Grabar also testified that as the result of legal proceedings, Gill International had its CVOR suspended in 2019 for 30 days and performance conditions were imposed on the CVOR of Gill International.

45Mr. Gill represented both Ikjyot and Gill International as the sole representative of Ikjyot and the sole representative of Gill International at a show cause meeting with the Deputy Registrar held January 24, 2018. Mr. Gill, with another individual, Sudanshu Malhotra, represented Gill International at the hearing before the Tribunal in an appeal by Gill International heard July 6, 2018. Gill admitted in cross-examination that he was the manager of Gill International and he told others he was the manager of Gill International.

46Lastly, in its Notice of Appeal signed by Mr. Gill on behalf of the appellant, the appellant does not deny being related to Ikjyot but acknowledges the “association” of the appellant with Ikjyot.

47As a result, I find that the appellant is related to Ikjyot and Gill International for purposes of s. 17 of the Act.

(c) What is the appropriate outcome?

48I find that the Order is the appropriate outcome and decline to modify the Order for the reasons set out below.

49I have considered whether the Order should be modified and whether terms and conditions should be on the appellant’s CVOR, or a lesser penalty than refusal imposed.

50Mr. Gill admitted at the hearing that he understands he made mistakes with his first company Ikjyot and that the safety rating declined. Mr. Gill testified that he has hired Norm Hogan as a safety consultant and that with Mr. Hogan’s experience behind him he knows he can run the appellant safely. Mr. Gill said he will follow all the rules with the appellant company, the safety rating will be good, and he will operate with only one truck at the beginning.

51Norm Hogan testified that he was hired by Mr. Gill in May, 2024 and was given information about Ikjyot including the previous audit and was made aware that Ikjyot’s CVOR was cancelled. I find Mr. Hogan’s evidence to be a little assistance for two reasons.

52Firstly, Mr. Hogan was not made aware of the extent of Mr. Gill’s involvement in the management and operation of Gill International. Mr. Hogan testified that Mr. Gill told him he is presenting helping his wife out when she needs it but Mr. Hogan made no inquiries about the CVOR of Gill Transport and he and Mr. Gill “didn’t get into that”. Knowledge of the experience and involvement of Mr. Gill, who Mr. Hogan is hoping to guide and educate in the operation of the appellant would be important in Mr. Hogan putting forward a useful and relevant action plan for the appellant. Mr. Hogan admitted in cross-examination that he did not know that the business of Ikjyot had been transferred to Gill International, that Mr. Gill had been involved in the management and operation of Gill International, including its 2023 audit, and had never checked the CVOR of Gill International. Mr. Hogan testified that he had not been shown the Notice of Further and Other Particulars by Mr. Gill.

53Secondly, the action plan written by Mr. Hogan is comprised of four pages and lists 8 action items, most of which are generic principles and statements of the appellant’s aspirations. For example, action item 1 states: “The operator will ensure that the CVOR overall violation rate for the company will be acceptable and kept as close to zero as possible…” Since being retained, Mr. Hogan admitted that he never asked Mr. Gill if he had taken any courses related to this industry and Mr. Hogan did not have Mr. Gill sign up for any courses.

54Mr. Gill’s submission and statement in the Notice of Appeal that he will limit the appellant to one truck “initially”, a statement also made by Mr. Hogan, does not persuade me that the appellant’s application should be accepted. The Act and regulations and requirements detailed by Ms. Wilkins and Officer Grabar apply to any holder of a CVOR, regardless of fleet size. Although Mr. Gill offers his personal assurances that the appellant will operate safely now, I find this unpersuasive given that Mr. Gill has demonstrated through his management and operation of both Ikjyot and Gill International that he been unable or unwilling to operate safely as required by the Act and regulations.

55Safety of the roads which the public shares with commercial vehicles is more important than the desire of Mr. Gill to be given another opportunity to operate.

56Although Mr. Gill testified that he realizes he has made mistakes and is trying to do better, even if that is true, this simply amounts to now saying that he will comply with obligations he has had – but has failed or refused to comply with - all along.

57Nothing in the evidence before me is persuasive that Mr. Gill should be given another chance to operate with a CVOR. The weight of the evidence, viewed in totality, establishes that Mr. Gill has failed or refused in his efforts to operate safely to date. Mr. Gill retained the services of Mr. Hogan without giving him full and accurate information about his experience in this industry through Ikjyot and Gill International.

58Given the above, I find that the Order is the appropriate outcome and decline to modify the Order.

Conclusion

59The Registrar has established 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 other laws relating to highway safety based on the relationship between the appellant and Ikjyot and Gill International. Mr. Gill’s first company Ikjyot had a poor safety record when operating and its CVOR was cancelled. Mr. Gill’s second company Gill International has a poor safety record.

60The Order is the appropriate outcome for the reasons set out above.

ORDER

61For the reasons set out above, I confirm the Order.

Avril A. Farlam, Vice-Chair