Court Information

Ontario Court of Justice

Date: August 18, 2017

Court File No.: Cornwall, Ontario 3960-999-00-1902226Z

Parties

IN THE MATTER OF an appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended;

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— AND —

TRANS-WEST LOGISTICS INC. Appellant

Judicial Information

Before: Justice D.A. Kinsella

Heard on: June 6, 2017

Reasons for Judgment released on: August 18, 2017

Counsel:

• Matthew MacLean, for the prosecution
• Jodi Burness, agent for the defendant Trans-West Logistics Inc.

On appeal from: a conviction by Justice of the Peace Marchand on June 2, 2016

Judgment

KINSELLA J.:

Introduction

[1] In Romeo and Juliet, William Shakespeare asked "What's in a name? That which we call a rose by any other name would smell as sweet." Would we interpret the words differently if they had been written in French? 'What's in a name' is the central question at the heart of this appeal.

Facts

[2] It was alleged that the defendant, Trans-West Logistics Inc., is the owner of a commercial motor vehicle that was being driven on October 24, 2015 with a major defect in it, contrary to sections 107(11) and 207(1) of the Highway Traffic Act ("HTA").

[3] Evidence was heard from David Fletcher, a Ministry of Transportation ("MTO") officer. He was working at the Lancaster Truck Inspection Station on Highway 401 on October 24, 2015 and conducted an inspection on the vehicle in question, a tractor trailer unit operating as a commercial motor vehicle. Documentary evidence, certified as true copies, was also introduced. There was no issue that the driver of the commercial motor vehicle was doing so with the consent of the owner.

[4] For the purposes of this appeal, the first relevant document (marked as exhibit 2) produced was titled in the French and English languages as "Certificat D'Immatriculation (IRP)/Vehicle Registration Cab Card (IRP)". This document was issued by the "Société de l'assurance automobile" from the Province of Quebec. Under the heading "Titulaire de L'Immatriculation/Name of Registrant" the name "Logistiques Trans-West Inc." is shown with an address in Quebec. Under the title "Nom du sous-traitant/Name of owner-operator" the name shown is "Service Trans-West Inc." The document goes on to identify the plate on the vehicle (specifically the tractor), the vehicle identification number, the make and model of the vehicle, its year, as well as other identifying features.

[5] The second relevant document (marked as exhibit 3) was the plate registration for the trailer. Again, this document was issued by the "Société de l'assurance automobile" from the Province of Quebec and was titled Certificat D'Immatriculation". The headings in this document are in the French language only. Under the heading "Nom et Prénom du Propriétaire ou du Locataire a Long Terme" (which translates as "Name and First Name of the Owner or Long Term Tenant") "Service Trans-West Inc." is listed. The document goes on to identify the plate on the vehicle (specifically the trailer), the vehicle identification number, the make and model of the vehicle, its year, as well as other identifying features.

[6] There was no issue taken with the fact that the tractor and trailer unit stopped by Officer Fletcher on October 24, 2015 was properly identified in those documents.

[7] Finally, filed as exhibits 6 and 7 were documents titled "driver's daily log" and "daily inspection reports" respectively. Each of these documents had a company logo pre-printed on them with the name "Trans West" and the same Quebec address as listed in exhibit 2.

[8] Officer Fletcher testified that, as part of his investigation, he ran the plates for the vehicle in question through the MTO database, which also includes the National Safety Code number assigned to the vehicle. The name associated with the plates and that National Safety Code number in the Ministry database was shows as Trans-West Logistics Inc. He also testified that he was required to fill out a document referred to as a Commercial Vehicle Inspection Report ("CVIR"). The CVIR is an electronic document that is filled out by the officer. Some information on that report self-populates, meaning that when one piece of identifying information is entered (for example a plate or national safety code number) the form will automatically enter the name associated to that piece of information. In this case, the name associated was Trans-West Logistics Inc. The CVIR was not entered as an exhibit, nor was any documentation derived from the MTO database.

[9] Although evidence was called and submissions made concerning the nature of the major defects, ultimately the fact that there were major defects with the commercial motor vehicle appears to have been conceded. Instead, the focus of the argument was whether or not the company named as "Trans-West Logistics Inc." was identified correctly as the owner of the vehicle.

Grounds of Appeal

[10] On appeal it is argued that the above summarized evidence was insufficient to support a finding that the identity of the "corporate defendant" had been established beyond a reasonable doubt. Furthermore, it is argued that case law provided by the appellant at trial should have been binding on the presiding justice of the peace, and his failure to follow the principle of stare decisis was an error in law.

Scope of Powers of the Appellate Court

[11] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review. See Section 136(2). No guidance is specifically given in the statute as to what test is to be applied in that review. The statute, however, does provide for appeals under this section to be conducted by way of a review, a process referred to as "robust" by the Court of Appeal in R. v. Michaud 2015 ONCA 585, [2015] O.J. No. 4540.

[12] The scope of this review was discussed by Justice Duncan in the case of R. v. Gill [2003] O.J. No. 4761 where he noted:

The appeal created by these words could hardly be more generous. Unlike appeals from proceedings under POA Part III, or those governed by the Criminal Code, for example, the court is not limited as to when it may intervene - in particular it is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law…[at para 7]

[13] Despite the robust nature of the review, there are some practical limitations. For example, a judge sitting on appeal should be reluctant to over-turn findings of credibility made by the justice of the peace, who had the benefit of hearing from witnesses in court. As well, as observed by Justice Duncan, "…it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case. The Act grants a defendant only one trial; it is not a trial run." [at para 10]

[14] I note that in the case under appeal the defendant did not testify and essentially there were no findings of credibility made.

[15] Finally, section 34 of the POA states:

(1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate,

(a) fails to state or states defectively anything that is requisite to charge the offence;

(b) does not negative an exception that should be negatived; or

(c) is in any way defective in substance or in form.

(2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial.

[16] This broad power applies equally to a judge sitting on appeal (see R. v. Deneen Allen and Associates [2008] O.J. No. 4005 (C.J.))

Relevant Legislation

[17] Under section 207(1) of the HTA, any vehicle owner may be convicted of any offence for which a driver can be charged provided the driver does not have the vehicle without the owner's permission.

[18] Under section 207(3) of the HTA the holder of a permit as defined in section 6 shall be deemed to be the owner of the vehicle referred to in the permit if a number plate bearing a number that corresponds to the permit was displayed on a vehicle at the time an offences was committed unless there is evidence that the plates were used without the holder's consent.

[19] Section 6 of the HTA defines the following:

"Holder" – the person in whose name the plate portion of a permit is issued

"IRP cab card" – a permit issued by the Ministry or another jurisdiction pursuant to the International Registration Plan ("IRP")

"Permit" – a permit issued under subsection 7(7) consisting, except when the permit is a CAVR cab card or an IRP cab card, of a vehicle portion and a plate portion

[20] This same definition of "permit" is found in section 82.1 of the HTA.

[21] CVOR stands for Commercial Vehicle Operator's Registration. Under section 17 of the HTA, these certificates must be carried by all commercial motor vehicles registered in Ontario.

[22] The IRP is set out in section 7.1 of the HTA as well as in regulation 11/04. This plan came about as a result of the Red Tape Reduction Act 1999, Bill 12. The Plan provides for the issuance of IRP cab cards as permits for commercial motor vehicles that travel across provincial or international borders.

[23] Section 87 of the Legislations Act 2006, S.O. 2006, c. 21, Sched. F, states that in every Act and regulation the word "person" includes a corporation.

[24] The general sections of the HTA do not define the term "owner" as it pertains to the obligation to register a motor vehicle. The offence at issue on this appeal, however, falls under Part VI of the Act. In that same part, section 82.1 defines an owner as "the person whose name appears on the certificate of registration for the vehicle." An operator is defined as the person who is directly or indirectly responsible for the operator of a commercial motor vehicle and, in the absence of evidence to the contrary and when there is no CVOR certificate, the holder of the plate portion of the vehicle is deemed to be the operator.

Stare Decisis

[25] The doctrine of stare decisis requires that, in matters of law, courts of inferior jurisdiction are bound to follow precedents set by courts of superior jurisdiction. The purpose of stare decisis is to promote certainty in the law.

[26] The following description of the meaning and purpose of stare decisis was set out in R. v. Koziolek, [1999] O.J. No. 657 (Ont.Gen.Div.) at page 12:

The phrase stare decisis is an abbreviation from the Latin phrase stare decisis et non quieta movere which may be translated as "to stand by decisions and not to disturb settled matters". The "rule" as it is often described, has been commonly understood in modern terms to mean that every court is bound to follow any case decided by a court above it in the hierarchy. However, as the entire phrase itself suggests, the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same": see Glanville Williams, Learning the Law (9th ed.), 1973. [emphasis added]

Analysis

[27] At both the trial as well as the hearing of this appeal, it was argued that the law surrounding corporate identity was dispositive of the issue. Ms. Burness on behalf of the appellant relied on a number of cases wherein corporations were acquitted because the name they were charged under was not their exact or precise legal name. She argues these decisions stand for the proposition that a corporation may only be held liable if its exact name is proven beyond a reasonable doubt and the learned justice of the peace's failure to follow them violated the principle of stare decisis.

[28] With the exception of one decision (R. v. Swish Maintenance [2005] O.J. No. 3958), none of the cases deal with an offence against a corporation contrary to sections 107(11) and 207(1) of the HTA. As set out above, Part VI of the HTA (read in conjunction with the Legislations Act) provides a specific definition of the word "owner" as being the corporation who is named on the certificate of registration for the vehicle. In this case, the certificate of registration is the IRP cab card which is issued in the name of "Logistiques Trans-West Inc."

[29] The facts before the court in R. v. Swish Maintenance, supra were significantly different than those before me. In that case, the justice of the peace presiding at the trial made a finding that Swish Maintenance was the owner of the commercial motor vehicle based solely on the hearsay testimony of the investigating officer, who had observed some documents provided by driver and testified as to the contents of those documents. Neither the documents nor certified copies were ever produced. On appeal, Justice Adams found that this hearsay evidence failed to meet the requisite standard of proof for identity.

[30] Since all of the cases relied on by the appellant involved very different material facts then the case before the learned justice of the peace, the principle of stare decisis did not apply and he was not bound to follow those decisions.

[31] The remaining issue to be decided is whether or not the learned justice of the peace erred in finding that Trans-West Logistics Inc. was the same entity as Logistiques Trans-West Inc, simply translated into English.

[32] In the book "The Law of Traffic Offences (3rd Edition)", the authors note that misspelled names are a frequently cited charging error. It is important to bear in mind the significance of the charging document, as its purpose is to ensure that a person charged with an offence is reasonably informed of the circumstances. When these defects are challenged at trial, the question a court will ask prior to making a decision about quashing or amending the certificate is whether or not the defendant was prejudiced by the defect (see R. v. Cote, [1977] S.C.J. No. 37).

[33] In this case, the IRP cab card clearly identifies the owner of the vehicle as Logistiques Trans-West Inc. It would have been preferable for the company to be charged under the name listed on cab card as opposed to any translation or interpretation of that name contained in the MTO database. That being said, had an amendment been sought at trial, it undoubtedly would have been granted since there is no reason to believe that the defendant would have suffered any prejudice. As noted by the court in R. v. Deneen Allen and Associates, supra, "An amendment would not have resulted in substituting one corporate entity for another but rather correcting a misnomer of that corporate entity" [at paragraph 5].

Decision

[34] In my view, the evidence at trial amply supported a conclusion that Logistiques Trans-West Inc. was the owner of the tractor trailer inspected by Officer Fletcher on October 24, 2015. I am satisfied that the evidence establishes beyond a reasonable doubt that Trans-West Logistics Inc. is the same corporate entity as Logistiques Trans-West Inc.

[35] The name of the appellant "Trans-West Logistics Inc." will be amended to "Logistiques Trans-West Inc.". All documentation flowing from this conviction will be amended accordingly.

[36] The appeal is dismissed.

Released: August 18, 2017

Signed: Justice D.A. Kinsella