Appeal court upholds controversial wheel-off law

TORONTO (Nov. 17, 2003) — The Ontario Court of Appeal has upheld the controversial absolute liability provision of the Highway Traffic Act, which imposes fines of up to $50,000 on trucking companies for wheel-off incidences — even if the owner or operator took every available step to prevent the accident.

Section 84.1(1) of the Highway Traffic Act — originally enacted in response to several highly publicized wheel-offs in the mid-1990s — provides that where a wheel becomes detached from a commercial motor vehicle, the operator and owner of the truck are guilty of an offence and can be fined anywhere from $2,000 to $50,000. The section further provides that it is an absolute liability offence, meaning that upon proof of the wheel detaching, guilt is affixed regardless of whether or not the operator or owner can demonstrate due diligence.

The court dismissed a challenge from the lawyers for Transport Robert and William Cameron Trucking, who argued that the law violates section 7 of the Canadian Charter of Rights and Freedoms, and that the clause, by not allowing a defence of due diligence, “stigmatizes owners as someone who has exposed innocent motorists or pedestrians to the risk of serious injury or death.”

However, in a unanimous decision, the Appeal Court disagreed. It said a company charged for negligence in regard to a flying wheel incident isn’t burdened with the kind of intense stigma that comes from being charged with a crime. Moreover, it defended the provision as an appropriate action by the government to reduce wheel-off accidents.

“The right to security of the person does not protect the individual operating in the highly regulated context of commercial trucking for profit from the ordinary stress and anxieties that a reasonable person would suffer as a result of government regulation of that industry,” the tribunal said in its decision.

The Appeals court also in effect overruled a Sudbury lower court’s decision in 1999 that found the absolute-liability offence unconstitutional because it punishes the vehicle’s owner or operator for the offence regardless of who is at fault. At the time, Ontario Trucking Association president David Bradley applauded the lower court ruling, adding the provision is “undemocratic.”

While he reserved commenting specifically on the details of the new ruling until the OTA has reviewed the entire report more closely, Bradley did say he was both surprised and disappointed with the court’s decision this time around. He said both the OTA’s lawyers, as well as those of the two carriers, will discuss whether a further appeal is warranted.

“Certainly we’re surprised over the ruling that a trucking company can lose its democratic right to launch a due diligence defence,” Bradley told Today’s Trucking. “We’ll look (at the ruling) more closely, and a decision will have to be made whether we (have grounds) to appeal to the Supreme Court. But that would be the next step.”

The Appeals court decision came just hours before another accident this past weekend, where a woman driving to visit family in Quebec was killed when an entire wheel assembly flew off an oncoming tractor-trailer and hit her station wagon. While police said charges would still apply, section 84.1 would not apply in this case because the whole dual wheel assembly –the axle, hub, wheel and tire — came off.

— with files from Canadian Press