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:

GTA Trucking Lines Ltd.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Robert Maich, Vice-Chair

APPEARANCES:

For the Appellant: Simranjot Singh, Owner Zain Ayoob Atcha, Counsel

For the Respondent: Patrick Moore, Counsel Kelly Boudreau, Representative

Heard by Videoconference: November 25, 26 & 27, 2024

REASONS FOR DECISION AND ORDER

BACKGROUND

1GTA Trucking Ltd. (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 May 6, 2024 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 effective May 20, 2024.

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. More specifically, the Registrar asserts that the cancellation is based on the appellant’s poor safety record, its relationship to a British Columbia carrier, YWC Transport Ltd. (“YWC-BC”) with suspended registration and its failure to be properly insured. The appellant bears the onus of convincing the Tribunal that there are no reasonable grounds for such belief.

3It is the appellant’s position that it has undertaken various proactive measures and there exists no reason to believe it will not operate commercial motor vehicles safely or in accordance with the Act.

4Simranjot Singh (“Mr. Singh”) is the sole director, officer and shareholder of the appellant. He testified on behalf 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

6I 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 not an appropriate case for conditions. I therefore confirm the Registrar’s order.

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 ought to be cancelled. 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, 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.

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, but less than proof on a balance of probabilities, and will be found to exist where there is an objective basis for the belief which is based on compelling and credible information. 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. In Yarco Developments Inc. v. Home Construction Regulatory Authority (Registrar), 2024 ONSC 93 at paras. 64-65, the Divisional Court held that it is the appellant/applicant’s burden of proving there are no reasonable grounds to believe that it will not act with honesty, integrity and in accordance with the law.

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

Is the Appellant related to YWC-BC pursuant to s. 17(4) of the Act?

14Relying on s. 17(4)(d) of the Act, the Registrar submits that the appellant is related to an Ontario trucking company doing business as “YWC TRANSPORT” (“YWC-ON”) by way of its relationship with the directors and officers of YWC-BC. Further relying on s. 17(4)(c) of the Act, the Registrar submits that the appellant was controlled or managed by one or both of YWC-ON and YWC-BC, either directly or indirectly.

15The Registrar submits that YWC Transport Limited (“YWC-BC”) held National Safety Code (“NSC”) Safety Certificate #202559923, which was suspended by the BC regulator on December 7, 2021 pursuant to the Motor Vehicle Act, RSBC 1996, c. 318, s.118.95. Upon, and in anticipation of, losing its safety certification, the Registrar submits that YWC-BC continued its operations through the appellant by making the appellant and YWC-ON de facto arms of YWC-BC.

(a) Common Directors, Owners or Shareholders, s. 17(4)(d)

YWC-BC is related to three other, numbered companies including YWC-ON

16Ms. Kelly Boudreau, Senior Program Administrator for the Ministry of Transportation (“Boudreau”), testified on behalf of the Registrar. Ms. Boudreau presented evidence that demonstrated YWC-BC had its safety certificate suspended in BC by Notice of Suspension of Safety Certificate effective December 7, 2021 by Karen Coverett (“Coverett”), Manager, National Safety Code Commercial Vehicle Safety and Enforcement.

17Ms. Boudreau also presented a BC Company Summary for YWC-BC dated July 30, 2024, that indicated Kuldip Singh Takhar (“Takhar”) was the sole director of YWC-BC and no officers were indicated in the search.

18Ms. Boudreau further presented evidence of Ontario corporate profile report for 2678464 Ontario Inc. dated July 30, 2024 that indicated Balbir Singh Oppal (“Oppal”) was the sole officer and director from its incorporation date of January 29, 2019, and that “YWC TRANSPORT” was an active business name of this Ontario corporation as of June 8, 2021, as indicated in the aforementioned Ontario corporate profile report. This entity is “YWC-ON” as referenced throughout this decision.

19Ms. Boudreau testified the appellant took possession of at least 65 trucks from YWC-BC, the bulk of which were transferred between November 30, 2021 and December 22, 2021, closely coinciding with the cancellation of YWL-BC’s NSC safety certificate on December 7, 2021.

20There is no evidence before me that either YWC-BC or Mr. Takhar objected to the transfer of the aforementioned truck assets to the appellant. Nor is there evidence before me that either YWC-BC or Mr. Takhar objected to the use of the trade name “YWC TRANSPORT” by YWC-ON or its principal Mr. Oppal. It is reasonable to believe that, in a competitive industry as commercial trucking, both tangible and intangible assets would be jealously guarded by their rightful owners from improper use or acquisition. Instead, I find that this transfer of YWC-BC’s physical assets to the appellant was authorized or acquiesced by YWC-BC as well as its intangible assets, namely the trade name of “YWC TRANSPORT”, to YWC-ON.

21The Registrar also submits that the appellant is related to 1295503 Ontario Inc. (“1295503ON”) and Mr. Oppal, both parties subject to a cancellation and seizure order of their CVOR by the Deputy Registrar on March 12, 2009 on concerns about the safe operation of the company, confirmed by this Tribunal in its decision 1295503 Ontario Inc. (RE), [2009] O.L.A.T.D. No. 226.

22Ms. Boudreau testified and presented an Ontario corporate profile report for 1295503ON, dated June 3, 2024, indicating Mr. Oppal as sole officer and director from its incorporation date of May 13, 1998, to date.

23In addition, the Registrar submits that the appellant is related to 2734247 Ontario Inc. (“2734247ON”). Ms. Boudreau testified and presented an Ontario corporate profile report for 2734247ON dated July 30, 2024 indicating Mr. Oppal as sole officer and director from its incorporation date of December 27, 2019 to date.

24The appellant did not contest the above stated evidence.

25It is the evidence of Mr. Singh that Mr. Oppal was the directing mind of YWC-BC. His testimony indicated the during the course of his dealings with YWC-BC he became aware Mr. Oppal was the directing mind of YWC-BC and Mr. Singh believed Mr. Oppal was the owner of YWC-BC. Mr. Singh testified he relied upon Mr. Oppal for the truck leases that constituted the core of the appellant’s business, and YWC-BC for the insurance, bills of lading, invoicing and revenue collection for the appellant. No one on behalf of YWC-BC disclaimed the actions carried out by Mr. Oppal affecting YWC-BC.

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

26Based upon the evidence presented, I find that 1295503ON, YWC-ON and 2734247ON have or have had common director, i.e. Mr. Oppal, and therefore they are related to each other, pursuant to s. 17(4)(d) of the Act.

27Further, I find that YWC-BC is related to Mr. Oppal as evidenced by the testimony of Mr. Singh and supported by the testimony of Ms. Boudreau. As the current director and owner of the appellant, I find the testimonial evidence of Mr. Singh to be an admission by the appellant.

28I find that in a competitive industry as commercial trucking, both tangible and intangible assets would be jealously guarded by their rightful owners from improper use or acquisition. Instead, I find that this transfer of YWC-BC’s physical assets to the appellant was authorized or acquiesced by YWC-BC. Similarly, I find that the transfer, grant of licence or acquiescence on the part of YWC-BC of the intangible asset of its trade name to YWC-ON is as such as to blur any legal distinction between YWC-BC and YWC-ON. I find YWC-ON and YWC-BC to be one entity for the purposes of the Act and hereinafter shall be referred to as YWC.

(b) Is the Appellant, directly or indirectly, being controlled or managed by YWC?

Background of the Appellant

29Mr. Singh testified that he obtained a grade 12 education in India before coming to Canada in 2018. Upon his arrival in Canada, Mr. Singh worked for his brother in Calgary before moving to Ontario in 2019, and later to Halifax in 2020 to find work. In January 2021, he moved back to Ontario and began trucking dispatch work contemporaneously with a brief two-month period of truck driving.

30Mr. Singh testified it was during this time that he was introduced to YWC. It was his understanding YWC was first owned by Mr. Takhar and later by Mr. Oppal. Mr. Singh testified he was not aware of Mr. Oppal’s involvement with YWC until two or three months after December 2021; it was at this time he was first introduced to Mr. Oppal.

31Mr. Singh testified that he purchased the shares of the appellant by agreement of purchase and sale dated July 7, 2022 (“APS”), reflecting a closing date of December 14, 2021 and obtained its CVOR certificate as of the closing date. The share sale did not include any cash, receivables, equipment or vehicles and was concluded at the agreed price of $14,000.00.

32The deposit and purchase price of $14,000.00 was paid by YWC on December 25, 2021 as documented by the APS and the testimony of Mr. Singh. Mr. Singh testified he did not have the money to purchase the appellant and relied upon YWC-BC to pay the purchase price. He further testified that the purchase price would be repaid to YWC-BC through deductions by YWC from revenue of the appellant.

33I find that YWC was instrumental in the purchase of the appellant’s shares by Mr. Singh.

Assets of the Appellant

34Mr. Singh testified that through the APS he did not take possession of any tangible assets of the appellant and only one intangible asset of the appellant, namely the appellant’s CVOR. Mr. Singh testified he did not purchase the appellant’s truck or trailer or its customer list. He acknowledged that the only item of interest to him was the appellant’s CVOR.

35Ms. Boudreau testified the appellant took possession of at least 65 trucks from YWC. The appellant had 57 trucks between December 22, 2021 and February 18, 2022; 58 trucks on June 29, 2022 and 64 trucks between March 15, 2023 and March 31, 2023. One truck was plated in Ontario on November 30, 2021, 14 days prior to the closing of the APS and 7 days prior to the BC suspension of the safety certificate for YWC on December 7, 2021.

36Ms. Boudreau further testified that prior to the APS, the appellant was a one man one truck operation. It is also noted from the Ontario profile report generated on December 19, 2023 for the appellant, that the company was incorporated February 19, 2010 and Mr. Singh was listed as the sole director as of December 10, 2021 but not filed until July 12, 2023.

37Mr. Singh acknowledged that the appellant’s trucks came from YWC and the other numbered companies. Mr. Singh further acknowledged that the truck leases and lease payments were arranged and paid by YWC from the time of his ownership purchase of the appellant and continues to the date of this proceeding. Mr. Singh also testified that all the truck leases were in YWC’s name and stated: “because otherwise it would have to pay a lot of penalty.” Mr. Singh testified YWC currently pays approximately $8,000 per month for the leases of trucks used by the appellant.

38With respect to the arrangement for payment for the trucks leased from YWC and other companies controlled by Mr. Oppal, Mr. Singh testified that there was no written agreement; rather, leasing costs were deducted by YWC from revenues owed to the appellant.

39Mr. Singh testified there was no formal accounting of the amounts deducted by YWC from the appellant’s revenue, only the verbal accounting from YWC.

Is the Appellant controlled by YWC?

40The Registrar submitted that the appellant is related to YWC in that the appellant utilized certain services as follows:

i. Mr. Singh testified that YWC arranged for loads of carriage by the appellant, although some were independently arranged by the appellant. Ms. Jennifer Grabar (“Grabar”), Enforcement Auditor/Investigator in Carrier Safety for the Ministry of Transportation, presented numerous bills of lading (“BOL”) indicating YWC as the carrier, not the appellant, since the APS of December 14, 2021. Ms. Grabar testified a random sampling of the BOLs indicate YWC as the carrier in the majority of BOL. Ms. Grabar found this unusual and expected the majority of the BOL to be in the name of the appellant.

ii. Mr. Singh testified that the appellant is dependent upon YWC to arrange and pay for fleet insurance for the appellant’s trucks from the date of the APS to the date of this proceeding.

iii. Mr. Singh testified that YWC controlled the billing and accounting for the appellant with the costs of truck leasing and insurance deducted from the revenue of the appellant without any formal or written accounting. Mr. Singh further testified that whatever profit YWC made, they gave him part of it resulting in monthly payments from YWC ranging from $10,000 to $20,000 per month. When asked of Mr. Singh why he did not request a formal written accounting of the leasing and insurance costs, he testified that he was scared if he asked for it, YWC would take away the leases and give the leases to someone else.

iv. Mr. Singh further testified that the appellant used a YWC office facility located at 8 Cadetta Road, Vaughan, Ontario.

41I find that the appellant is dependent on YWC for all major aspects of its operations including procurement and billing for loads of carriage, insurance acquisition and payment, equipment/truck leasing, and office space. I therefore, conclude that, due to the control of the appellant exercised by YWC, it is related to the appellant pursuant to s. 17(4)(c) of the Act.

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

42In review of the evidence, I find that the financial arrangements between YWC and the appellant for the use of the appellant’s vehicles to be unorthodox at best. The arrangement for the leasing of the vehicles is either a fortuitous arrangement between a company that has lost its NSC Safety Certificate coupled with an individual who was seeking to begin his own trucking business, or a scheme by YWC to carry on business using the appellant’s CVOR. I conclude that it is the latter. Such a questionable financial arrangement for the leasing of the trucks between the appellant and YWC at or around the time of the loss of YWC’s NSC Safety Certificate as well as its investment or loan of $14,000 in the appellant supports that belief. Concluding as much, I find that there is reason to believe that YWC-BC manages or controls the appellant pursuant to s. 17(4)(c) of the Act.

43I have already found that YWC provided the trucks to the appellant in order to continue its operations upon the loss of YWC’s NSC Safety Certificate, giving rise to the reasonable belief that YWC- manages or controls the appellant. As, by Mr. Singh’s own admission, the control of the appellant by YWC forms a part of that arrangement, I conclude that the control exercised by YWC over the appellant is the reason to believe that YWC is related to the appellant pursuant to s. 17(4)(c) of the Act.

Is there reason to believe the appellant will not operate a commercial motor vehicle safely?

44Based on the evidence before me and ss. 17(4)(c) and (d) of the Act, I have concluded that the appellant is related to YWC. Accordingly, pursuant to ss. 47(1)(f) and 47(2.1), I may consider the safety record of YWC and 1295503ON 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 Record of YWC and 1295503ON

45As mentioned before, YWC operated in BC where its NSC Safety Certificate was cancelled on December 7, 2021 pursuant to the BC legislation, as a result of YWC’s safety record.

46Further, 1295503ON had its CVOR cancelled by the Deputy Registrar as detailed in the Tribunal’s decision 1295503 Ontario Inc. (RE), [2009] O.L.A.T.D. No. 226.

47Given that I have already found YWC is related to the appellant, that Mr. Oppal owns YWC, and 1295503ON is controlled by Mr. Oppal, their safety records are valid consideration of this Tribunal in determining whether there is reason to believe the appellant will not operate a commercial motor vehicle safely. However detrimental the companies affiliated with the appellant may be, I also find that the appellant’s safety record standing alone gives me reason to believe that it will not operate a commercial vehicle safely and in compliance with the laws of highway safety.

Safety Record of the Appellant

48Ms. Boudreau 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

49Ms. Boudreau presented a Carrier Safety Record Review of the appellant as of January 4, 2024 showing an Overall Violation Rate (“OVR”) of 68.25% for the period December 5, 2021 to December 5, 2023. The OVR of 68.25% comprised of the following event types: collision 12.32%, conviction 30.88% and inspection 25.05%.

50Ms. Boudreau presented a second Carrier Safety Record Review as of July 30, 2024 showing an OVR of 99.08% for the period July 1, 2022 to June 30, 2024. The OVR of 99.08% comprised of the following event types: collision 13.19%, conviction 56.30% and inspection 29.60%.

51The Registrar submitted that the OVR worsened from 68.25% for the period ending on December 5, 2021, to an OVR of 99.08% for the period ending June 30, 2024.

52Ms. Boudreau also highlighted the Out of Service Rate (“OSR”) arising from inspections details pertaining to drivers and vehicles was 33.99% OSR for the period ending December 5, 2023, and 38.01% OSR for the period ending June 30, 2024. Again, the Registrar submitted the OSR had worsened over the two periods.

53Samples of violations were cited by Ms. Boudreau. The list of examples below is not exhaustive of her testimony and evidence, nor is it exhaustive of the appellant’s safety record:

i. 2024-06-06 Collision Class – Injury, Driver Action - Lost Control, Driver Condition – Fatigue

ii. 2023-12-14 Hours of Service – Defect – Logs – False Record of Duty Status

iii. 2023-12-21 Brake System – Defect – Safety Devices – Tract Pr Sys Inop; Wheels/Rims – Defect Wheels/Rims Fastener – Loose/Miss; Hours of Service – Defect – Logs – Fail to Produce Supporting Docs – False Record of Duty Status

iv. 2024-01-06 Brake System – Defect – Air Supply-Lines Damaged

v. 2024-02-20 Hours of Service – Defect – Lags-False Record of Duty Status; Trip Inspection – Defect – Improper; Insurance – Defect – No Certificate; Brake System – Defect – Air Supply-Lines Leaking

54Samples of Ontario Motor Vehicle Collision Reports (“MVCR”) involving the appellant’s drivers were presented by Ms. Boudreau. The list of examples below is not exhaustive of her testimony and evidence, nor is it exhaustive of the appellant’s MVCR record:

vi. 2021-12-30 Driver for the appellant failed to yield at stop sign with flashing light causing collision with oncoming traffic – Driver charged HTA s.130(1).

vii. 2022-02-11 Driver for the appellant following too close rear ends vehicle in front triggering multiple vehicle pileup to the rear – Driver charged HTA s.158(1)

viii. 2022-03-17 Driver for the appellant coming out of right bend jack knifed with trailer across all lanes and colliding with a passenger vehicle resulting in the fatalities of both occupants of the passenger vehicle – Reporting Constable indicated Driver travelling too fast for conditions - Driver charged HTA s.130(3)

ix. 2022-07-06 Driver for the appellant lost control of vehicle due to fatigue – Tractor and Trailor Unit sideswiping guard rails before rolling onto its passenger side blocking two lanes of traffic – Tractor and Tailor Unit Demolished

x. 2022-11-12 Driver for the appellant Tractor Trailor Unit westbound lost set of dual tires that crossed over centre line striking eastbound and bounced into lake – Brake drum debris found lying on highway

55The appellant did not specifically address the violations nor the collisions (including the fatal collision) on its record. Rather, the appellant submitted that its new policies and procedures implemented since that time will improve the appellant’s OVR.

Safety Audit of the Appellant

56The Registrar submitted the appellant’s OVR gave rise to the warning letters to the appellant dated February 8, 2023 and November 17, 2023, as well as Facility Audit on October 24, 2023. A Facility Audit is trigger by a violation rate over 35%.

57Ms. Grabar testified as to her findings of the appellant’s Facility Audit of October 24, 2023, in her report of December 15, 2023.

58Ms. Grabar testified that, during the audit entrance interview, Mr. Singh was unable to answer most of the questions and had to defer the answers to Avleen Virk (“Virk”) who ran dispatch and other administrative functions from India. A third party was required to assist Mr. Singh due to a language barrier. Ms. Grabar stated it was very unusual for a company to dispatch from another country and had not seen this practice in her prior experience.

59Ms. Graber also found it unusual that Mr. Singh was unsure of the number of vehicles in his fleet, but he believed it to be 90-100 vehicles. Ms. Grabar also testified that it was unusual for one person to monitor a fleet of this size.

60The interview and process were completed entirely by remote with documents emailed by Mr. Singh and Ms. Virk.

61Ms. Grabar testified the overall result of the Facility Audit Findings was an Audit Compliance Achieved of 51.98% - Fail. In order for a Pass to be achieved, all three sections of the audit must exceed 50%. Most notable was the Hours of Service Profile Compliance Rate of 16.41%, with no monitoring system was in place. Ms. Graber also noted in the Vehicle Findings Profile that no preventative maintenance program was in place as no documents were produced over the 43 days of the audit. In respect to Operator Findings, Ms. Grabar noted the drivers’ Record of Duty (“ROD”) were often out of date or missing. She also noted the Electronic Logging Device (“ELD”) were inaccurate as over 600 unassigned driving periods were discovered without explanation.

62Ms. Grabar testified that of the Hours of Service (“HoS”) Summary indicated only three drivers were in compliance and provided an example of non-compliance with one driver operating 16 hours in a day and 85 hours in a week, well beyond the 14 daily hours and 70 weekly hours permitted.

63No exit interview was conducted for the audit as Ms. Grabar testified Mr. Singh was not available on the interview date of December 15, 2023.

Insurance Compliance

64Ms. Grabar testified that she requested proof of insurance over the past two years from the date of her audit. Ms. Kim Wells (“Wells”), senior underwriter, for The Nordic Insurance Company of Canada (“Nordic”) testified that Policy CFA06522705 was in place December 22, 2021 to July 3, 2023; this policy was to expire on December 22, 2023 but was cancelled on July 3, 2023. Ms. Wells also identified a second policy CFA06530595, was in force effective September 3, 2023 to the date of Ms. Grabar’s audit, for 17 trucks.

65Ms. Grabar inquired of the appellant if any insurance was in place between July 3, 2023 when policy CFA06522705 was cancelled, and September 3, 2023 when policy CFA06530595 came into effect. The appellant advised it was insured with “Insure It” from July 4, 2023 through September 3, 2023; however, no proof of insurance was provided.

66Ms. Grabar testified there were 11 violations of driver records between July 3, 2023 and September 3, 2023, indicating the appellant was operating during this period.

67Ms. Wells testified that premium finance companies may be retained for some insured and payment of fees becomes a matter of contract between the finance company and the insured; in the course of her duties, she does not come into contact with the insured, only licenced insurance brokers. Ms. Wells testified a power of attorney (“POA”) is commonly used in fee contracts between premium finance companies and the insured, and exercised in some instances for cancellation of insurance for non-payment of fees. Further Ms. Wells testified policy CFA06522705 was cancelled on July 3, 2023 for non-payment of fees by the appellant’s insurance broker, “Insure It.”

68Ms. Wells further testified that a new policy CFA06530595 was in force effective September 3, 2023 for 17 of the appellant’s trucks; on February 12, 2024, the policy was updated to 27 of the appellant’s trucks. Ms. Wells further testified policy CFA06530595 was cancelled on April 1, 2024 by “Insure It” for payment arrears of $190,378.69.

69Ms. Wells testified a third policy CFA06541134 was in force effective May 3, 2024, insuring 2 of the appellant’s trucks, expanded to 3 trucks effective June 25, 2024 and further expanded to 25 trucks effective July 30, 2024. Ms. Grabar testified a fleet limitation order was put in place due to the lack of insurance; only two of the appellant’s trucks were insured effective May 3, 2024 and increased to 3 trucks effective June 25, 2024, and the policy was again increased to 25 trucks effective July 30, 2024.

70Mr. Singh further testified that, to the best of his knowledge, there was no insurance policy in place for the appellant’s trucks from February to July 2022, from July and August 2023, or from April to July 2024. When asked about only 2 to 3 trucks being insured between April and July 2024, Mr. Singh testified he did not know, he was only aware that he paid insurance and YWC deducted insurance premiums with his lease payments.

71Mr. Singh was asked during cross examination whether insurance compliance was important to him, he testified he did not know about the importance of insurance at the time but was aware of it now. Mr. Singh testified he had no control of insurance but will now take control of it and pay insurance directly, he relied upon the work of YWC and trusted insurance was paid as he was provided with “pink slips” and believed everything was okay.

Appellant’s Evidence in respect to Reform and Remediation of Safety Record

72The appellant submits it has taken various remedial actions to improve its safety record by implementing an action plan, that includes fleet reduction for better management, hiring of experts for oversight, updated logging system, improved compliance system to meet Ministry standards and updated insurance with improved monitoring. The appellant further submits that the problems with its safety record are a thing of the past.

73Mr. Tariq Mahmud testified he was hired as a Safety Compliance Officer by the appellant as of September 2, 2024. He testified he was tasked with addressing problems of convictions and performance including collisions, inspections and convictions as described in the Facility Audit Findings of December 15, 2023.

74Mr. Mahmud testified he recommended the following reforms to be implemented by the appellant:

a. Improve the electronic logging system to “Samsara System” with its ability to monitor and track 20 driver behaviours.

b. Improved insurance coverage compliance with a certificate of insurance for each VIN number of the truck fleet.

c. Payment of all fines on time, leaving none outstanding.

d. Avoidance of collisions to be number one priority.

e. Compliance with inspections to be second highest priority.

f. Long term compliance through voluntary fleet limitation to four to six trucks, and hiring drivers with two years minimum experience.

g. Improved driver training implemented on September 7, 2024 to be completed within two months of the date of this proceeding.

h. Implementation of an Action Plan for the appellant effective September 2, 2024.

75Mr. Mahmud detailed his action plan to include:

a. Preventative maintenance interval of 60 days for tractors and 90 days for trailers.

b. Driver discipline policy of three statuses: corrective, suspension and termination.

c. Obtain CVOR abstract each month for the appellant’s trucks and bi-monthly licence abstracts for the drivers.

d. Quarterly review of drivers’ licences abstracts.

e. Annual review of the CVOR abstract and the drivers’ licences abstracts, both to be obtained on the same date.

f. New driver safety manual to contain a multi-level bonus provision for a good safety record.

76Upon cross-examination of Mr. Mahmud, counsel for the Registrar addressed several inconsistencies between the action plan and the driver safety manual, particularly in the areas of driver discipline and safety bonuses. Mr. Mahmud indicated the errors would be addressed.

77Throughout the course of the cross examination of Mr. Mahmud, it was discovered as follows; 1) the Samsara System had not yet been installed in any of the appellant’s trucks; 2) only 7 of the 11 drivers employed by the appellant had received partial safety training, 2 drivers were completely trained and 2 drivers yet to receive any training; 3) truck leases were still paid by YWC; 4) insurance was still paid by YWC with limited ability of the appellant to monitor compliance; and 5) over $5,000 in overdue fines outstanding and $20,000 in newer fines levied as of the date of this proceeding.

78Mr. Singh testified that when he first took over the appellant, he had little experience and had significant difficulty managing a large fleet of truck; he believes with his learned experiences over the past three years that he is now able to safely manage a small fleet of four to six trucks and ensure high safety and insurance compliance.

79I find that while Mr. Singh has taken some steps to address safety and regulatory compliance, it is not sufficient to allay concerns respect to the safety record of the appellant as most of the steps described by the appellant towards reform and remediation of its safety record remain incomplete for the reasons and findings as outlined above.

80In addition, I have concluded that the appellant is related to YWC who has had its NSC Safety Certificate cancelled due to unsafe practices. Given the closeness of its relationship with YWC and its own past safety compliance issues, along with the cancellation of 1295503ON’s own CVOR certificate, I give weight to their poor safety records and apply that evidence in considering the appellant. Accordingly, I 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.

What is the appropriate outcome?

81I am mindful of the Tribunal’s obligation to consider the possibility of an outcome other than the cancelling of the appellant’s CVOR certificate and the seizing of the plate portion of any vehicle permits. I have considered whether the Order should be modified and whether terms and conditions should be on the appellant’s CVOR, and I find that cancellation and seizure is the appropriate outcome.

82In my view, when weighing the totality of the evidence, nothing in the evidence presented is persuasive in establishing that the appellant should be given a chance to operate with a CVOR with conditions given the breadth, severity and volume of violations. Further, sufficient rectification and remediation plans have not been put into place by the appellant, with most items on hold contingent upon a decision from this Tribunal permitting continued operations under the CVOR with conditions.

83The Registrar’s order that the cancellation and seizure of plates should be confirmed. Applying Yarco Developments, the appellant has not persuaded me that there are no reasonable grounds to believe that the appellant will not operate commercial vehicles safely and in accordance with the Act

84Given the above, I find that cancellation and seizure is the appropriate outcome.

CONCLUSION

85I find that 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 related to highway safety, pursuant to s. 47(1) of the Act.

ORDER

86Pursuant to s. 50(2) of the Act, the Tribunal confirms the Registrar’s Cancellation and Seizure Order dated May 6, 2024 with respect to CVOR # 171-774-165 and the vehicles registered in the name of the appellant.

Licence Appeal Tribunal

Robert Maich, Vice-Chair