Licence Appeal Tribunal File Number: 17544/TSSEA

An appeal of a cancellation order issued under the Towing and Storage Safety and Enforcement Act, 2021, S.O. 2021, c. 26, Sched. 3 (the “Act”).

Between:

666654 Ontario Limited o/a K & K Towing and Automotive Repair

Appellant

And

Director of Towing and Vehicle Storage Standards

Respondent

DECISION AND ORDER

VICE-CHAIR:

Rebecca Hines

Representatives:

For the Appellant:

Eric Sabbah, Paralegal

For the Respondent: Court Reporter:

Patrick Moore, Counsel Josh Grieves and Charlotte St. Croix Veritext

Heard by Videoconference:

March 16, 18, 19 and 20, 2026

OVERVIEW

1The appellant, 666654 Ontario Limited o/a K & K Towing and Automotive Repair, appeals an Order (“cancellation order”) of the Director of Towing and Vehicle Storage Standards (the “respondent”), issued on August 12, 2025, which cancelled its Tow Operator Certificate and Vehicle Storage Certificate pursuant to subsection 7(1) of the Towing and Storage Safety and Enforcement Act (“TSSEA”), 2021, S.O. 2021, c. 26, Sched. 3 (the “Act”).

2Kevin Rosborough (“K. Rosborough”) is the sole owner and officer of the appellant.

3The respondent argues that the appellant committed contraventions of TSSEA and Ontario Regulation 167/23 (“Regulation”); and it and its employees failed to comply with terms or conditions of its certificates by breaching the Code of Conduct to act with professionalism and integrity. Further, several of its employees have been convicted of violations of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). Finally, the appellant continued to operate after the cancellation order came into effect on August 27, 2025, which supports that it is not willing to comply with the law and the Director’s orders.

4The appellant disagrees with the position taken by the respondent and believes the decision to cancel its certificates failed to consider alternative sanctions, was disproportionate, and misaligned with the purpose of the Act. The appellant also asserts that the respondent did not conduct a fair investigation and breached several of one of its employees’ legal rights.

5The matter proceeded to a four-day videoconference hearing. On behalf of the respondent, I heard the testimony of Andrew Gill (“Gill”), Senior Regulatory Compliance Administrator, Towing & Vehicle Storage Oversight. On behalf of the appellant, I heard the testimony of K. Rosborough and employees’ Dylan Rosborough (“D. Rosborough”), Cole Harshman (“Harshman”) and Tate Peaker (“Peaker”). I also heard the testimony of David Hilliyer (“Hilliyer”), lay witness; Lori Elliott (“Elliott”), social worker and Jeff Gautreau (“Chief Gautreau)”, Fire Chief of the Wiarton Fire Department. The appellant also summoned the following witnesses to testify: Neil Richardson (“Richardson”), former employee of the appellant; Detective Constable Keith Brown (“Detective Brown”) of the Ontario Provincial Police (“OPP”).

ISSUES

6The issues in dispute are:

i. Has the appellant failed to comply with a term or condition of its certificates, including the obligation to comply with the Code of Conduct?

ii. Has the appellant failed to ensure that persons employed or engaged by it comply with the Act and Regulation, including the Code of Conduct?

iii. Has the appellant committed contraventions of the Act and its regulations?

iv. Has the appellant failed to satisfy the qualifications and requirements of the Act and Regulation?

v. If so, then what is the appropriate outcome.

RESULT

7After considering both parties’ submissions and evidence I find the appellant committed contraventions of TSSEA and the Regulation. Further, I find the appellant failed to comply with a term or condition of its certificates, including its obligation to comply with the Code of Conduct. I also find the appellant failed to ensure persons employed by it complied with the TSSEA and the Regulation, including the Code of Conduct. However, I find that the public interest can be protected by imposing a suspension of the appellant’s Tow Operator and Vehicle Storage Certificates pending the appellant’s compliance with terms and conditions which will be discussed further below.

PROCEDURAL ISSUES

Challenge to the Director’s Jurisdiction

8On the last day of the hearing the appellant sought the production of the Certificate of Appointment of the Director under s. 49 of the TSSEA, which provides the Director with jurisdiction over its regulation of the towing industry. The respondent agreed to produce the document, so I did not need to address it.

9Following the conclusion of the hearing, the appellant filed a motion challenging the authenticity of the document on the basis that its representative’s analysis of the metadata of the document supports that the document was fabricated or was not authentic. As a result, the appellant argues that the Director does not have jurisdiction to revoke the appellant’s towing and storage certificates.

10I find the appellant’s motion untimely and that it is not appropriate for the appellant to raise a jurisdictional challenge following the conclusion of the hearing. No reasonable explanation was provided for why the appellant did not request this document prior to the hearing. I also find the appellant’s challenge to the Director’s jurisdiction over the towing industry has no merit. Moreover, I have no evidence before me that the appellant’s representative has any expertise in analyzing the metadata of electronic documents. Further, I accept that the certificate submitted by the Director establishes that it has been granted jurisdiction by the Ontario government with the regulatory authority over the towing industry.

Exclusion of Appellant’s Response to Director’s Complaint

11Sections 37(1)(a) and (b) of TSSEA provide the Director with the authority to receive complaints concerning conduct that may be in contravention of or non-compliance with the Act and Regulation and to make written requests to persons for information regarding complaints.

12Section 37(3) provides that a person who receives a written request under clause (1)(b) shall provide the requested information to the Director. Section 37(4) states that no person shall hinder, obstruct or interfere with the review of a complaint, refuse to answer questions on relevant matters or provide information on matters relevant to the complaint that the person knows to be false or misleading.

13The appellant requested that its response to the Director’s complaint be excluded as evidence for this hearing because the document stated that it was being made on a “without prejudice” basis. The appellant argues that its response is privileged because the purpose of the document was an attempt to resolve the matter. Consequently, the document is protected by settlement privilege and should be excluded. The appellant relies on the Supreme Court of Canada’s decision in Union Carbide Canada Inc. v. Bombardier Inc. (“Union Carbide”), 2014 SCC 35, [2014] 1 SCR 800 in support of its position that the document is not admissible. In Union Carbide, the court highlighted that settlement privilege is the rule of evidence that protects communications exchanged by parties as they try to settle a dispute.

14The respondent argues that the appellant was statutorily required to provide a response to the Director’s complaint letter and just because the appellant’s response stated “without prejudice” does not afford it any protections due to settlement privilege. The respondent relies on the Alberta Court of Appeal’s decision in Bellatrix Exploration Ltd. v. Penn West Petroleum Ltd. (“Bellatrix”), 2013 ABCA 10 and the Superior Court of Justice of Ontario decision in Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (“Clayton”) in support of its position that the appellant’s response to the Director’s complaint is not protected by settlement privilege. At paragraph 25 of Bellatrix, the court stated that: “the notation ‘without prejudice’ is not conclusive in establishing privilege… A communication that is not in substance privileged does not become so just because one party places ‘without prejudice’ on it. Likewise, the absence of the words ‘without prejudice’ means nothing if the communication is truly privileged.” At paragraphs 16 through 20 of Clayton, the court determined that settlement privilege does not apply in cases where there is a statutory obligation to comply with the law.

15I find the appellant’s response to the Director’s complaint letter is not protected by settlement privilege because pursuant to s. 37(3) and (4) of TSSEA the appellant was statutorily required to provide a response to the Director’s complaint letter. I find the scenario in Union Carbide distinguishable from this case because that case involved a mediation where the parties agreed to a settlement agreement, not a scenario which involved the statutory requirement to respond to a regulator. Further, I agree with the rationale by the court in Bellatrix that just because a document states “without prejudice” does not mean the document is privileged. Although I find the facts set out in Clayton distinguishable from the matter before me, I agree with the principle that communications involving a statutory obligation to comply with the law are not protected by settlement privilege. Consequently, I decline the appellant’s request to exclude the appellant’s response.

Confidentiality Order

16The respondent brought a motion seeking a confidentiality order of the video which is at the crux of this dispute because it depicts a deceased person’s human remains. The appellant requested that the video should be excluded as evidence at this hearing, which will be discussed further below. However, the appellant does agree that the video should not be available to the public because of its content.

17The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle and s. 2(1) of the Tribunal Adjudicative Records Act, S.O. 2019, c. 7, Sch. 60 (“TARA”). However, s. 2(2) of TARA provides that the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

18Similarly, the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25, held that the following requirements must be met before placing limits on the open court principle:

i. court openness poses a serious risk to an important public interest

ii. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

iii. as a matter of proportionality, the benefits of the order outweigh its negative effect

19I grant the request and order that the video be subject to a confidentiality order and not be available to the public. I find that the public interest at risk is the privacy, dignity and control of the deceased person over the dissemination of the depiction of the circumstances of their death. In my view, public access and potential dissemination of this video would be an affront to this dignity. A confidentiality order sealing this part of the adjudicative record and prohibiting public access to the video strikes an appropriate balance, because the public can still understand this decision on its merits if such a confidentiality order in place.

Exclusion of the Video

20The appellant brought a motion seeking to exclude the video as evidence in this hearing based on the following rationale:

i) The video constitutes stolen property within the meaning of ss. 322 and 354 of the Criminal Code, RSC 1985, c-46;

ii) The video was unlawfully transferred from the OPP to the Ministry of Transportation (“MTO”) which was a breach of s.24 of the appellant’s Canadian Charter of Rights and Freedoms and violated the Personal Information Protection and Electronic Documents Act, SC 2000, c.5 (“PIPEDA”); and

iii) The OPP and MTO breached the Ontario Human Rights Code, R.S.O. 1990, c. H.31, by failing in their duty to accommodate D. Rosborough’s disability in its investigation into the context of the video.

Breach of the Criminal Code

21The appellant submits that the video should be excluded on the basis that it was stolen. K. Rosborough (as noted, the sole owner and officer of the appellant) testified that he accidentally transmitted the video to Richardson (as noted, the former employee of the appellant) by text message while intending to send only photographs of the accident scene. K. Rosborough also testified that when he spoke with Richardson on the phone afterwards, he asked him to delete the video and the latter promised that he would. I was directed to phone logs which confirm that conversations took place between the two but no text messages. The appellants argue that by agreeing to delete it, Richardson explicitly acknowledged he had no colour of right to retain the video. Further, by failing to delete the video he committed theft pursuant to s. 322 of the Criminal Code.

22The appellant relies on various Court of Appeal and Supreme Court of Canada decisions involving criminal law matters which establish that keeping property received by mistake constitutes theft. The appellant argues that the deliberate retention of property received through another's mistake after a demand to return it constitutes theft under the Criminal Code. The appellant maintains that this analysis is supported in R. v. Lilly, 1983 CanLII 153 (SCC), [1983] 1 S.C.R 794 (“Lilly”) where the court determined that keeping property without colour of right constitutes theft, which is consistent with the court’s decision in R. v. Houlden, 1966 CanLII 285 (ON CA), [1966] 3 C.C.C. 348 (Ont. C.A.) (“Houlden”). Finally, in R. v. Milne, [1992] 1 SCR 69, (“Milne”) the court determined that keeping property given by error after being informed by the error constitutes theft.

23The respondent argues that the video was not stolen. It maintains that theft is defined as “depriving an owner, either temporarily or permanently, of the property or their interest in it.” It submits that this is clearly not the case based on what transpired in this matter. It also maintains that the case law relied upon by the appellant is irrelevant to the facts in this case. It submits that if someone has a video or comes into possession of a video of someone committing a robbery or other illegal activity and shares it with the police, this is not theft. In fact, it posits that deleting evidence of a potential illegal activity would be a criminal offence. Finally, it asserts that Richardson’s motive for sharing the video with police is irrelevant to the issue I have been asked to decide.

24Richardson testified that K. Rosborough never asked him to delete the video. In addition, he went on sick leave following this incident because the video was graphically disturbing and his family doctor advised him that he should report the video to the police. A significant focus of the appellant at the hearing was that Richardson had an ulterior motive in sharing the video with police because he wanted to destroy the appellant’s business and open a rival tow truck company. Several witnesses testified about Richardson’s negative character. Ultimately, I find Richardson’s motive for sharing the video with the OPP irrelevant and there was no evidence that Richardson intended to deprive K. Rosborough of the video, either temporarily or permanently, consistent with the definition of stolen set out in s.322 of the Criminal Code.

25I decline to exclude the video on the basis that it was stolen because I have insufficient evidence to support that it was stolen. Instead, I have the conflicting testimony of K. Rosborough and Richardson. While the phone logs may confirm that there were conversations between K. Rosborough and Richardson, I find they do not establish that Richardson was asked to delete the video. In addition, I also find there was no reason for K. Rosborough to send Richardson photos of the accident scene when he was not working at it. I also find the testimony of the appellant’s employees of limited value because they have a motive to testify on behalf of the appellant because their employment is dependent on the outcome in this case.

26I also find the case law relied upon by the appellant distinguishable for the following reasons:

a) Lilly dealt with a real estate agent who allegedly misappropriated trust funds involving property transactions. The accused pleaded the “colour of right” defence and the jury found the accused guilty of theft. The court quashed the decision because the trial judge erred in law in misdirecting the jury as to the meaning of the phrase “colour of right” which it clarified as meaning “a bona fide belief or an honest belief. And a bona fide belief or an honest belief may arise from a genuine mistake or in some cases even from ignorance.”

b) Houlden dealt with a tow truck driver who refused to return a vehicle who was charged with theft.

c) Milne involved an accused who was paid twice by error by a company who properly notified the accused of the error. Rather than returning the funds, the accused converted the funds to his own use. The court determined that this constituted theft.

27I find all of the scenarios highlighted above unhelpful to this case because they involved situations where the allegations against the accused involved taking property which belonged to someone else such as monies from trust accounts, a vehicle which belonged to someone else or by keeping money paid by mistake after the person was informed of the mistake. In this case, Richardson did not delete the video and submitted it to the police. I do not find this constitutes theft as per the above case law relied upon by the appellant. Finally, even if I were to accept that K. Rosborough asked Richardson to delete the video, I find that Richardson sharing the video with the OPP does not constitute theft. I do not find making a complaint or sharing information with the police of an unethical or criminal activity constitutes theft.

Breach of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

28The appellant argues that the video should be excluded because the OPP and the MTO breached s. 24 of D. Rosborough’s Charter rights. The appellant relies on the Supreme Court of Canada’s decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 in support of its position that the video should be excluded because there was a breach of D. Rosborough’s constitutional rights by the OPP and the MTO in their unauthorized handling of the video.

29Section 24 (1) of the Charter states “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

30Rule 11 of the Licence Appeal Tribunal Rules supports that where a remedy is being sought under s. 24(1) of the Charter a party must serve a Notice of Constitutional Question (“NCQ”) on both the Attorney General of Canada, and the Attorney General of Ontario and all other parties and deliver to the Tribunal. The NCQ should be delivered as soon as the circumstances requiring the notice became known, and at least 15 days before the question is to be argued. Section 109(6) of the Courts of Justice Act provides that the mandatory notice and remedy provisions apply to tribunals. Section 109(2) of the Courts of Justice Act provides that where a NCQ is not given the remedy will not be granted.

31I decline to exclude the video on the basis that the OPP and MTO breached the applicant’s Charter rights. I find that if the appellant were going to raise such an argument, then pursuant to Rule 11 and s. 109 of the Courts of Justice Act, it was obligated to serve a NCQ on the Attorney Generals of Canada and Ontario, as well as the Director. Since the appellant did not do this, I decline to consider this argument further.

Breach of the [PIPEDA](https://www.canlii.org/en/ca/laws/stat/sc-2000-c-5/latest/sc-2000-c-5.html)

32I find the PIPEDA does not apply to the OPP or MTO because it is a federal privacy law which governs how private sector organizations collect, use and disclose personal information. It applies to organizations engaged in commercial activities to protect the privacy of consumers. I find that the OPP and MTO do not fit within this category. Consequently, I find it unnecessary to address this issue further.

Breach of the [Ontario Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) (“Code”)

33The appellant argues that the video is a medical record which should never have been shared because taking videos of fatalities was used by D. Rosborough as a therapeutic coping mechanism because he suffers from Post Traumatic Stress Disorder (“PTSD”). The appellant submits that the OPP and the MTO failed in their respective duties to inquire about whether D. Rosborough had a disability. They also failed in their duty to accommodate his disability in their investigation and ultimate decision to cancel the appellant’s certificates. The appellant relies on the Supreme Court of Canada’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 SCR 513, where the court determined that administrative tribunals have jurisdiction in determining whether a party has been discriminated against pursuant to any grounds in the Code in deciding a matter before them.

34The respondent submits that there is no legal basis for the appellant’s allegations that either the OPP or the MTO breached the Code or its duty to accommodate. It argues that the appellant has dramatically shifted its legal position since it first filed its application with the Tribunal. Initially in response to the Director’s cancellation order both the appellant and D. Rosborough took responsibility, acknowledged that taking the video was wrong and apologized. The respondent argues that the appellant’s argument that D. Rosborough took these types of videos as a therapeutic coping mechanism is absurd and is not supported by any medical evidence. It maintains that the appellant never claimed D. Rosborough had a disability in their response to the Director or in D. Rosborough’s letter of apology. Further, the appellant first raised the issue of PTSD and disability one month prior to the hearing. It submits that neither the OPP or MTO can be penalized for not accommodating a disability that did not exist or was never disclosed. Further, there is insufficient proof that D. Rosborough has a disability, and it is unclear what type of accommodation could have been provided.

35Section 1 and 9 of the Code state as follows:

(1) Every person has a right to equal treatment with respect to services, goods, and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

(9) No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

36The appellant claims that the OPP and MTO discriminated against D. Rosborough based on disability in services. Section (10)(1)(b) of the Code defines “disability” as including “a condition of a mental impairment or a developmental disability.” The appellant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred.

37The Ontario Human Right’s Commission’s Policy on Ableism and Discrimination based on Disability states that “the duty to accommodate a disability exists for needs that are known. Organizations and persons responsible for accommodation are not, as a rule, expected to accommodate disabilities of which they are unaware. However, some individuals may be unable to disclose or communicate their needs because of the nature of their disability. In such circumstances, [service providers] should attempt to assist a person who is clearly unwell or perceived to have a disability, by offering assistance and accommodation. On the other hand, [service providers] are not expected to diagnose illness or ‘second-guess’ the health status of an [individual]”.

38In order to determine whether there was a violation of the Code, I must decide:

a) Does D. Rosborough have a disability, and did he have this disability at the material times within the meaning of the Code?

b) Did D. Rosborough communicate to the OPP and MTO that he had a disability and that he required accommodation?

39I find that D. Rosborough did not have a disability at the material times within the meaning of the Code for the following reasons.

40Although I agree that a diagnosis of PTSD or ADD would constitute a disability under s. 10(1) (b) of the Code, I find that the appellant has not proven on a balance of probabilities that D. Rosborough had been diagnosed with any disability when the video was taken or when he responded to the Director’s complaint letter. My conclusion is based on the following evidence.

41D. Rosborough testified that he is now 25 years old and he has been a tow truck driver since 2018 and has witnessed the aftermath of collisions where people have been trapped in their vehicles and other fatalities. He testified that he has also experienced several traumatic experiences in his life. For example, he was involved in a serious car accident in 2019 where he sustained serious physical injuries and the other driver died. Further, he had a gun pulled on him in 2023.

42D. Rosborough testified that he took the video on June 17, 2024, as a therapeutic coping mechanism in response to extreme stress. He did not record the video for entertainment but took the video for the purpose of sharing it with his dad so that they could talk about it afterwards. He testified that he has taken approximately 10 videos of collisions scenes as a coping mechanism and has sent them to only his dad. He stated that he was trying to make light of a stressful situation and would rather laugh in front of friends than cry in front of coworkers. He testified that paramedics and other first responders would often use dark humour and laugh at the scene of a fatality as a coping mechanism.

43D. Rosborough testified that he has since been diagnosed with PTSD and ADD by Dr. Sutherland, a general physician at a walk-in-clinic and was referred to Lori Elliott, a registered social worker for treatment. A letter from Dr. Sutherland dated December 3, 2025, states “Presently under assessment and medical care Attention: PTSD and ADD…Further reports to follow”. He is also in the process of being referred to a psychologist. Elliott testified that she has been providing cognitive behavioural therapy to D. Rosborough since January 2026, however, she could not confirm that he is diagnosed with PTSD because it is not within her scope of practice to diagnose. Elliott also could not comment on whether videos of fatalities is a recommended coping mechanism for PTSD.

44Detective Constable Brown testified that his involvement in this matter is relevant to whether there was any criminality involved if the video was posted on social media and that his investigation was ongoing. He confirmed that he did not interview D. Rosborough or the appellant about the context for the video because his investigation was ongoing and he escalated the matter to his Staff Sergeant who made the decision to submit the video to the MTO.

45Gill testified that he did not interview D. Rosborough because MTO received a written statement about the video from the appellant in response to the Director’s complaint letter and it also received a letter of apology from D. Rosborough, so he did not think a further interview was necessary.

46I find that the appellant has not proven on a balance of probabilities that D. Rosborough has or had a disability at the material times relevant to the matter before me. I find Dr. Sutherland’s letter dated December 3, 2025, is inconclusive with respect to whether D. Rosborough has been diagnosed with PTSD because the doctor is a general practitioner at a walk-in-clinic and did not provide sufficient analysis in the letter to confirm either diagnosis. Dr. Sutherland’s note consists of three sentences and indicates that further reports are to follow. I note that no additional reports are before me. Further, Dr. Sutherland’s letter significantly post-dates the time period D. Rosborough took the video or the OPP or MTO’s investigation or inquiry. In addition, this information was not disclosed to the Director until one month prior to the hearing. For these reasons, I give Dr. Sutherland’s letter little weight. Although I can accept that D. Rosborough has had some traumatic life experiences, I find there is insufficient evidence before me to support that he had either PTSD or ADD, or any other Code related disability at the material time of the incident or during the investigation by the OPP or MTO thereafter.

47I also find that the appellant did not communicate D. Rosborough’s disability to either the OPP or MTO or the need for accommodation until one month prior to the hearing. K. Rosborough acknowledged during cross-examination that at no point in time did they advise the OPP or MTO that D. Rosborough had a disability or that accommodation was needed. I find that neither service is required to predict a disability or retroactively accommodate a disability that was never communicated to it and/or that did not exist at the time. Nor do I find it clear from watching the video of D. Rosborough that there is an obvious or perceived mental health disability. I conclude that the appellant has not met their onus in proving that either the OPP or the MTO discriminated against D. Rosborough or breached their duty to accommodate in their investigation.

48For the above-noted reasons, I decline to exclude the video as evidence. I will now address the merits of the dispute.

ANALYSIS

49The Director relies on the following subsections in s. 7(1) of TSSEA which outline the conditions by which it may suspend or cancel a tow operator and/or a vehicle storage operator certificate:

a) if the Director is satisfied that the holder no longer meets the qualifications and requirements prescribed for the certificate;

b) if the holder has contravened or failed to comply with this Act or the regulations;

d) if the Director is satisfied that there are reasonable grounds to believe that the holder is not carrying out activities under the certificate with honesty and integrity; and

e) for any prescribed reason.

50Under subsection 9(3) and 24(3) of the Regulation, the Director may suspend or cancel a tow certificate or vehicle storage certificate where there has been non-compliance with TSSEA, its regulations or the HTA; or where there has been a failure to comply with a qualification or requirement of section 8 or 23 of the Regulation.

51The Director submits that it cancelled the appellant’s certificates for the following reasons:

a) The appellant and its employees have not satisfied the qualifications and requirement of s. 8 of the Regulation because they have breached the Code of Conduct;

b) The appellant and its drivers have been convicted of violations of the HTA;

c) The appellants CVOR violation rate is higher than the majority of CVOR operators in Ontario;

d) Despite the cancellation order which was effective August 27, 2025, they continued to operate and perform tow services and receive vehicles for storage.

52Due to the number of allegations, I will address each in turn.

I find that the appellant has failed to ensure that persons employed or engaged by it complied with the Act and Regulation, including the Code of Conduct?

53Section 10(1) and 17(1) of the Regulation supports that a condition of being a tow operator and tow truck driver is that they shall comply with the Code of Conduct. Section 1 of the Code of Conduct states that “Every tow operator, tow truck driver and vehicle storage operator shall act with professionalism, integrity, courtesy, good faith and fairness toward the public and each other.”

54The Director’s Cancellation order states that on November 21, 2024, a tow truck driver for the appellant attended the scene of a fatal collision. While on the scene of that collision, a tow truck driver recorded a video of the collision. That video included images of human remains along with commentary and laughter. The Cancellation Order indicated that the video was published on social media, and that the corporate officer and director of the appellant distributed the video to another employee. The Cancellation Order advised that this was a fundamental breach of the Code of Conduct.

55As highlighted above, the appellant acknowledges that the video was taken, however they dispute that the video was posted on social media and that K. Rosborough had distributed it by mistake. I find that a review of the 26 second video taken by D. Rosborough depicts him filming the collision scene where a woman had just died where he made very inappropriate comments about the collision, joked about the deceased person’s human remains [and then zoomed in on those remains] in the video. D. Rosborough is then heard laughing and the video zooms into the face of his co-worker who is smiling. There were three other employees of the appellant present at the collision including K. Rosborough. D. Rosborough confirmed during his testimony that he was the only one who took the video and the only one who speaks in it.

56Gill testified that he became involved in this matter after a complaint was filed with the MTO by the OPP. Gill testified that he found it disturbing that someone would take a video like this where a human being has died in a tragic accident, and their body parts are on display. Gill also testified that D. Rosborough was not a lone actor because there were other employees in the video and K. Rosborough was on the scene and took no steps to ensure his employees were acting appropriately. Gill acknowledged during his testimony that there was no evidence that the video was shared on social media, but that it was distributed by D. Rosborough to K. Rosborough who then shared with Richardson.

57Gill testified that he is familiar with the concept of dark humour and acknowledged that everyone responds to trauma differently and some use dark humour as a coping mechanism. However, it is usually done in a safe space and not passed along. Making a video with this type of humour is an egregious violation of the Code of Conduct and he would not expect this from any first responder, and this conduct cannot be allowed in the towing industry. Gill testified that the Director wanted to hear from the appellant so that she could make an informed decision regarding the information sent from the OPP. A complaint letter was then sent to the appellant citing the statutory authority to investigate the complaint and requirement for the appellant to provide a response.

58Gill testified that they received a response from the appellant which contained inconsistent statements of K. Rosborough regarding how the video got into Richardson’s possession. For example, K. Rosborough stated that Richardson had wanted to come to the collision site, he sent photos of the collision site when there was no reason to because Richardson was not working. He stated he viewed the video, then he said he had not viewed the video in its entirety, yet he was at the scene. Gill testified that the Director did not find the sequence of events credible. Further, Gill testified that the appellant’s business is a family business, and the conduct involved a family member and they did not operate with a standard of professionalism. Gill also testified that they did not find the appellant’s response to the complaint sincere because they did not take any disciplinary action against D. Rosborough until they got the Director’s letter seven months later, which is not responsible or professional.

59As highlighted above, the appellant has not persuaded me that taking this kind of video is an acceptable therapeutic coping mechanism. Further, I find it concerning that this was not a one-time occurrence as Peaker testified that he still thinks that it is ok to take these types of videos. In addition, D. Rosborough admitted to taking several videos and he still has not deleted the video which resulted in the appellant’s cancellation of the towing and towing certificates despite being asked to by his father. Consequently, I find that this was not a one- time occurrence and was part of the culture within the appellant’s business.

60Based on the evidence before me, I find that the appellant failed to ensure that persons employed or engaged by it complied with the Code of Conduct because I find the video taken by D. Rosborough demonstrated a complete lack of professionalism, integrity, courtesy, good faith and fairness toward the public. Further, K. Rosborough and three other employees were at the scene of the collision when the video was taken, and he should have taken immediate steps to address employees who were not behaving in a professional manner. While I can appreciate that first responders who witness traumatic collision sites may respond with dark humour, I find that taking a video like this is crossing the line, cannot be allowed and needs to be deterred. I find that members of the public need to have confidence that tow certificate holders will conduct themselves in these types of situations with professionalism. Further, as highlighted above, I do not accept the appellant’s argument that D. Rosborough taking these videos was an acceptable therapeutic coping mechanism for PTSD. I find that other than the appellant’s submissions, there is no evidence before me to support this and submissions are not evidence.

61I also find the appellant’s change in legal position one month prior to the hearing perplexing. In the appellant’s initial response to the Director’s complaint, the appellant issued a statement which acknowledged that it was wrong for D. Rosborough to take the video and that it had taken disciplinary action against him where it placed him on administrative duties and he was undergoing training in the code of ethics and standards of practice. He was also undergoing coaching by a professional on the ethical use of phones in the workplace. D. Rosborough also issued a letter of apology acknowledging that taking the video was wrong and that he was deeply sorry to the woman who died in the collision and her family for his conduct and embarrassment to his father’s business. Shortly before this hearing, the appellant filed an amended notice of appeal where it withdrew the appellant’s initial appeal and D. Rosborough’s apology and argued that D. Rosborough’s conduct was due to a mental health condition.

62D. Rosborough testified that he withdrew his apology because that would be like apologizing for having a disability. However, D. Rosborough did say that he regrets making the video and feels badly for the deceased woman and her family. The appellant also placed the blame on Richardson for what has transpired in this case. I find this change in legal position disingenuous, and that the appellant is now failing to take accountability for its employee’s misconduct.

63For the above-noted reasons, I find that the Director has proven that the appellant failed to ensure that persons employed or engaged by it complied with the Regulation, which includes the Code of Conduct.

I find the appellant failed to comply with a term or condition of its certificates, such as the obligation to comply with the Code of Conduct.

64I find the appellant failed to comply with the Code of Conduct because K. Rosborough distributed the video to Richardson, another employee. I find that whether he did this by mistake or on purpose irrelevant because as highlighted above, taking videos or disturbing pictures of accident scenes was not an uncommon practice for the appellant’s employees. I find that as the director and owner of the appellant K. Rosborough had an obligation to lead by example and ensure that he was complying with the Code of Conduct and acting with professionalism.

The appellant committed contraventions of the Act and its regulations

Violations of the HTA

65Pursuant to s. 8 of the Regulation an eligibility requirement for a tow operator to hold a certificate is they must have a valid Commercial Vehicle Operator’s Registration (“CVOR”). The CVOR program is operated by the MTO to promote the safe operation of commercial trucks and buses on Ontario’s roadways. The CVOR program collects data on the inspections, collisions, and convictions of each certificate holder and its drivers to monitor the holder’s safety performance.

66The safety record of a CVOR holder is calculated by assigning points to the collisions, inspections, and convictions it experiences. The points are then applied to an overall violation rate. Once a CVOR holder’s violation rate goes above a given threshold, the MTO intervenes to encourage the holder to improve its safety performance.

67The Director’s Cancellation Order stated that one of the grounds for cancellation was that the appellant and its employees committed various contraventions of the HTA, TSSEA and its Regulation. The following summarizes those allegations:

a) On May 22, 2024, a driver disobeyed a legal sign, contrary to the HTA;

b) On July 30, 2024, a driver drove through a red light without stopping, contrary to subsection 144(18.1) of the HTA;

c) On August 22, 2024, a driver failed to share the road, contrary to section 148 of the HTA,

d) On August 23, 2024, a driver drove through a red light without stopping, contrary to subsection 144(18.1) of the HTA; and

e) On October 30, 2024, an inspection of one of the appellant’s trucks found that it was not to be in good repair and proper condition, contrary to subsection 11(3) of TSSEA and contrary to the requirement of subsection 10(1), paragraph 1, of the Regulation.

68The Director relies on the appellant’s CVOR Abstract which established that the appellant’s tow truck drivers had over six convictions for various HTA violations. Further, the safety inspection of one of its trucks on October 30, 2024, revealed defects in safety conditions resulting in the vehicle being taken out of service. Gill testified that the appellant had a violation rate of 40.71% over a two-year period and that only one percentile of tow operators are above the threshold of 35%. Gill testified that this demonstrates that the appellant and its employees were not taking their commitment to public safety seriously.

69The appellant did not dispute any of the above-noted violations. However, it maintains that its CVOR rate is now lower than the 35% threshold and it is committed to improving its commitment to public safety.

70I find that the Director has proven that the appellant and its employees have not complied with the HTA, TSSEA and its Regulation as its record over a two-year period demonstrates that its drivers committed the above noted infractions of the HTA and did not comply with TSSEA and the Regulation regarding vehicle and road safety. I find that it is not a surprise that that the appellant’s CVOR record is now below 35% since its tow and storage certificates have been cancelled since August 2025, and it has not been as active.

Operating After Cancellation Order

71The Director issued a Notice of Further and Other Particulars dated November 24, 2025, which alleged that the appellant continued to carry out numerous tows following its issuance of the cancellation order which was contrary to s. 2 of TSSEA.

72Section 2(1) (a) of TSSEA supports that no person shall, except under the authority of a tow certificate and in accordance with this Act and regulations, provide or offer to provide towing services.

73Gill testified that following the Director’s cancellation order between August 27, 2025, and September 13, 2025, the appellant continued to perform numerous tows upon the request of the Owen Sound Police Service. Gill also testified that the appellant performed 24 tows on behalf of CAA after the cancellation of its certificates. The Director relies on various motor vehicle collision reports and attendance sheets from CAA in support of its position that the appellant continued to operate after the Director’s cancellation order. Gill testified that when the Director issues a cancellation order it will email it to all the police services in the tow operator’s geographic area. Gill testified that he spoke with the Owen Sound police, and they claimed that they had not received the cancellation order.

74K. Rosborough acknowledged during his testimony that that he continued to accept tows from the Owen Sound police, however, he honestly believed that s. 6 of the Regulation provided an exemption where a police service requests emergency tows. In his affidavit, he stated that he responded to the direct service requests from the police service under the genuine, good faith, and reasonable belief that he was authorized to do so given the request was from a recognized law enforcement authority.

75I find that the appellant did not comply with the Director’s Cancellation order because it continued to accept tows on behalf of the Owen Sound police and CAA after its certificates were cancelled. Although I can appreciate that K. Rosborough may have been under the impression that the appellant was exempt when emergency services are requested by the police, I find that as the director and owner of the tow operator he had an obligation to understand the appellant’s legal obligations to comply with orders issued by the regulator. Moreover, I was provided with no explanation for why the appellant continued to accept tows from CAA after the cancellation order because CAA is not a police service. I find the fact that the appellant continued to operate after its certificate was cancelled concerning.

76For the above-noted reasons, I find the Director has proven that the appellant did not comply with the Act and its regulations as its drivers have been convicted of several HTA offences. In addition, the appellant continued to operate after its tow and storage certificates were cancelled which is also in non-compliance with TSSEA.

The appellant failed to satisfy the qualifications and requirements of the Act and Regulation

77As highlighted above, I have determined that the appellant and its employees did not comply with the Code of Conduct, have been convicted of violating the HTA and have not maintained a CVOR record below 35%. They have also failed to comply with TSSEA and the Regulation. Further the appellant continued to operate after its towing and storage certificates were cancelled. I find it clear that the appellant has failed to satisfy the qualifications and requirements of the Act and Regulation.

Cancellation of the appellant’s towing and storage certificates is not the appropriate penalty.

78Section 37 of the Regulation provides that the Tribunal may confirm, modify or set aside the decision of the Director.

79As I have found that the appellant committed contraventions of TSSEA and the Regulation, and failed to satisfy the qualifications and requirements of the Act and the Regulation, failed to comply with a term of condition of its certificates, including the obligation to comply with the Code of Conduct and where the actions of a tow truck driver described in the particulars contravened s. 11 od TSSEA, the appellant failed to ensure that persons employed or retained by the appellant complied with the Act and the Regulation, including the Code of Conduct, I must now determine if the Director’s Cancellation Order was the appropriate order or if it should be modified or set aside.

80The Director argues that cancellation of the appellant’s towing and storage certificates is the only appropriate penalty. It maintains that the grounds involving the video are serious and constitute an egregious breach of the Code of Conduct. It also asserts that the appellant has not taken accountability or any steps to correct its conduct and ensure its employees comply with the Code of Conduct. It maintains that the fact that K. Rosborough and some of his employees still think it is ok to take these types of videos is a serious problem. It also submits that it has proven that the appellant’s employees made several violations of the HTA which resulted in convictions for unsafe driving. In addition, the appellant continued to operate after it issued the cancellation order. Finally, the appellant’s argument that the cancellation of its towing and storage certificates is a threat to public safety is not substantiated by any reliable evidence.

81The appellant argues that the decision to cancel its certificates was disproportionate, failed to consider or apply alternative enforcement measures, and is inconsistent with the purpose of the Act. The appellant submits that its business has been a pillar of the community and has the support of the community. The appellant relies on the testimony of Chief Gautreau and numerous letters of support from people and businesses in the community. The appellant also submits that prior to the incident which led to the cancellation order it had a safe driving record with no complaints which is relevant for a business which has been operating for over 35 years. The appellant requests that I give them a second chance and set aside the cancellation order. In the alternative, the appellant argues that cancellation is the nuclear option and that it is willing to abide by any terms and conditions that I deem appropriate. The appellant submits that such terms and conditions may include the following:

a) Implementing a written policy which prohibits the recording of collision scenes which is to be signed by all employees and filed with the Director;

b) All of its employees will undergo first responder mental health training;

c) The appellant and all of its employees will undergo training in TSSEA and its regulations;

d) The appellant will report any complaints received regarding its tow operator’s conduct to the Director within 24 hours of occurrence; and

e) The appellant commits that they will not exceed the 35% CVOR threshold.

82In his affidavit, K. Rosborough also stated that the appellant provides an essential service in rural and underserved regions of Ontario, and the suspension of its services would affect not only it but also local motorists, municipalities, and emergency services who rely on its services. Gill testified that there are other tow operators in the area, and the cancellation of the appellants certificates has not resulted in a risk to public safety. The Director submits that it has not received any complaints from first responders about a delay in response time for other tow operators in the area.

83Chief Gautreau testified that he has known K. Rosborough for over six years and he is professional, skilled and dependable. Chief Gautreau testified that the appellant has always shown up quickly without delay and safety has been a priority. Chief Gautreau testified that the appellant not only supports emergency services but also volunteers at public education and firefighter training events by setting up vehicles for training purposes. The appellant’s support of their local fire department has helped firefighters stay prepared to keep the public safe. Moreover, the appellant’s commitment to their department and the community is something they truly value and they are a trusted partner in Grey County. Chief Gautreau testified that the lack of the appellant’s towing service could result in delays in towing services in the winter, which could result in public safety issues but otherwise he did not identify any other public safety concerns.

84Chief Gautreau also testified that D. Rosborough is a good kid and has not hesitated to volunteer by moving vehicles for the department for firefighter training events. Further, when he became aware of the situation arising from the video, he referred D. Rosborough to Elliott because first responders must deal with very serious events which cause emotional distress.

85In considering what the appropriate remedy is I have considered the fact that the appellant’s business has been in operation for over 35 years and I have no evidence before me to support that it has a history of unsafe driving and/or unethical conduct prior to the video incident. I also give significant weight to the testimony of Chief Gautreau who highlighted the many positive attributes of the appellant’s business as well the numerous letters of recommendation and professional praise from members in the community. For these reasons, I find that the appellant is worthy of a second chance.

86However, I do have concerns about the appellant and its employees thinking that it is ok to take videos of accident scenes. In addition, I find the appellant needs to be deterred from this type of conduct to ensure that something like this will never happen again. As a result, I order the suspension of the appellant’s tow operator and vehicle storage certificates pending compliance with terms and conditions which will be addressed further below.

ORDER

87I order the suspension of the appellant’s tow operator and vehicle storage certificates until it confirms with the Director that it has complied with the following terms and conditions:

a) Implement a written policy which prohibits the recording of collision scenes which is to be signed by all employees and filed with the Director;

b) All of the appellant’s employees will undergo first responder mental health training and will provide confirmation of completion of that training with the Director along with confirmation of the service provider;

c) Develop a manual and implement training for all employees on the Code of Conduct which is to be signed by all employees and filed with the Director;

d) All employees shall delete all records pertaining to the recording of collision sites from all electronic devices; and

e) After completing all of the above and upon the restoration of its towing and storage certificates, the appellant shall maintain a CVOR record below 35%.