Court File and Parties

Court File No.: Central East - Newmarket 4960-12-2865-00 Date: 2016-10-24 Ontario Court of Justice

Between: Her Majesty the Queen Respondent

— And —

Mr. Ice Man Ltd. Applicant

Before: Justice P.N. Bourque

Reasons for Judgment on Appeal

Released on October 24, 2016

Counsel: M.D. Peachey for the Respondent P. Andrews for the Applicant

Overview

[1] The defendant corporation was found guilty before a Justice of the Peace of an offence under section 125 of the Highway Traffic Act ("H.T.A."), that the defendant operated a commercial motor vehicle in excess of its registered gross weight. The Justice imposed a fine of $5,866.00 which was arrived at by using the "sliding scale" in that section. The defendant appealed the finding of guilt and I dismissed that appeal on June 20, 2016. I did, however, allow the defendant to make further submissions to me on the issue of sentence as the original Justice of the Peace imposed the sentence before allowing the defence to make any submissions.

[2] The issue before me is whether I should impose a fine which is less than the "sliding scale" of fines as mandated under the H.T.A.

[3] The Crown submits that these fines are similar to the fines imposed for speeding and thus by the authority of R. v. Winslow, 2009 ONCA 643, 99 O.R. (3d) 337 (ONCA), there is no authority under the Highway Traffic Act to reduce the fine from this set scale. Such a finding has been recently confirmed in R. v. Doroz, 2011 ONCJ 281.

[4] The Crown concedes, however, that there is authority in Section 59(2) of the Provincial Offences Act to allow a reduction in the fine in certain circumstances. That is also the result in Doroz. Justice Libman stated at para 43:

The trial justice in this case sought to impose a suspended sentence in lieu of a fine reduction in order to circumvent the Winslow judgment...As the case law makes clear, s. 59(2) relief is triggered only in the most limited of circumstances. Hence in the case of speeding offences, the imposition of a suspended sentence will be the exception, and not the norm.

[5] While this is not a "speeding case", I believe that the concept would be applied to this case as well.

[6] Section 59(2) Provincial Offences Act reads:

Although the provision that creates the penalty for the offence creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence.

The Evidence

[7] At trial, the evidence was that the vehicle owned by the defendant had a gross vehicle weight maximum license of some 8,043 kilograms. The actual gross vehicle weight as determined at the scale was 31,510 kg. I note that this vehicle has a capacity for the determined weight but it just did not have the requisite licence.

[8] On the sentencing hearing, the Vice President of the company Ilo Blazski testified. He has been the main operator of the company and it is a small family business with 6 trucks and a warehouse. The gross revenues of the company are more than sufficient to pay this fine.

[9] The defendant related that he bought the subject truck at auction in April 2011. He stated that he went to the Service Ontario office and submitted the necessary documents to obtain a licence for 35,000 kilo gross weight. He was not aware that the existing licence provided for a weight of 8,043 kilograms. (That was confirmed in Exhibits 1 and 2). He received the licence and put it in the vehicle. He did not look at the licence and simply assumed that the licence had been issued in the manner that he had requested.

[10] He only became aware of the problem after his driver informed him of the charge and he went into the Service Ontario office and had the licence issued in the proper gross weight.

[11] The net result of his testimony, which I accept, was that there were two errors made, one by the issuing authority, in not issuing the proper gross vehicle weight, and the other by the defendant, in not checking the licence before using it.

[12] Based on this fact scenario, the question is: am I of the opinion that this constitutes "exceptional circumstances" as indicated in sec 59(2). I am mindful that (at least for speeding tickets) exceptional circumstances would be extremely rare. In my opinion, the fact that there was a chain of errors, and therefore not entirely the defendant's fault, does not in itself create an exceptional circumstance. The distinction here is that it was the issuing authority that made an error in issuing the licence in the defendant's name without complying with his request to have it for 35,000 kilograms.

[13] In other words, the government which seeks to impose the fine was in some respects responsible for the circumstances of the offence. This appears to me to be a very rare and very exceptional circumstance which is not likely to be repeated.

[14] Having said that, the defendant, by simply checking his documents could have avoided all of this. He clearly is guilty of the offence and notwithstanding the error of the Service Ontario outlet, is primarily responsible.

Conclusion

[15] I therefore, find that taking all of the above circumstances into account, I believe it is in the interests of Justice to reduce the fine by what I feel is the proportionate responsibility. I believe the apportionment should be 75 percent to the defendant and 25 per cent to the Ministry.

[16] I therefore reduce set fine by 25 per cent ($1,466.50) for a net fine of $4,399.50 (75 per cent). Added to the fine will be the victim fine surcharge and the usual court costs.

Signed: "Justice P.N. Bourque"

Released: October 24, 2016