Court strikes MTO’s ‘favorite enforcement tool’ against truckers

TORONTO — A recent ruling by the Ontario Court of Appeal has shaken how the Ministry of Transport treats trucks with defects and penalizes drivers and carriers.

In a recent communiqué, lawyers for Davis LLP explain how the Appeals Court upheld a previous Justice of the Peace decision that required MTO to prove that a commercial truck is actually in an "unsafe or dangerous" condition before it can achieve a conviction for such a charge.

The court’s ruling will affect hundreds of similar pending cases in Ontario, say defence lawyers David Crocker and Liliane Gingras, and "significantly alters one of the favorite enforcement tools of the (MTO)."

The lawyers, representing Quality Carriers Inc. and driver Randy Banning, successfully argued that a commercial motor vehicle that may have critical defects (as described in O.Reg.512/97) could only be impounded by the MTO.

It does not provide the basis, as the ministry has been interpreting for years, for charging truckers with large fines under subsection 84(1.1) of the Highway Traffic Act — a provision, the law states, that is to be used against vehicles in "a dangerous or unsafe condition as to endanger any person."  

The MTO’s fast and loose interpretation of
‘unsafe and dangerous’ trucks has
been dismissed by an Appeals Court judge.

It’s therefore up to the MTO, the Court states, to prove a vehicle meets the Act’s criteria before inspectors go beyond impounding trucks with mechanical defects and uses the provisions of subsection 84(1.1) to achieve a conviction, which includes fines as high as $20,000.

The whole case stems from a 2006 incident involving Quality Carriers driver Randy Banning whose tractor-trailer was found by MTO inspectors to have four of its air brakes to be over a quarter-inch out of adjustment.

Both Banning and Quality Carriers were charged with operating a "unsafe and dangerous" vehicle and fined contrary to subsection 84 of the Act.

The company challenged this, arguing that the MTO does not call evidence to prove that a vehicle is in a "dangerous or unsafe condition as to endanger any person," but rather, it uses subsection 84(1.1) so that a vehicle with a defect shall be automatically "deemed" to be dangerous or unsafe.

At trial, Justice of the Peace A. Renaud agreed with this defence and ruled that the plain meaning of Reg.512/97 relates only to the impound provisions of the Act.

She dismissed the charges against both the driver and carrier, explaining that the requirement for a prosecution in the Act was specifically different than the requirement necessary to impound a vehicle.

The MTO immediately appealed that decision; and when it was subsequently upheld by the Ontario Court of Justice in 2008, the government appealed it again. However, this past June, the Appeals Court also agreed with the original decision and dismissed the MTO’s second appeal.

The Davis lawyers stated that the Court’s interpretation creates a gap in the legislation, "however, it was not the role of the Court to fill that gap" and the government can make new regulations if it decided to do so.