Ontario issued a province-wide Declaration of Emergency on March 17 in response to Covid-19. Since then, the government has further extended the Declaration of Emergency until at least May 12. Several temporary exemptions were automatically triggered under the Highway Traffic Act and will remain in effect for the duration of the emergency.
The Government of Ontario’s official communication concerning these exemptions can be found here.
Businesses looking to take advantage of these exemptions are urged to consult a transportation lawyer to ensure that they understand and comply with the exemptions, and comply with all other applicable legislation. And businesses operating in other jurisdictions are also encouraged to contact a transportation lawyer regarding other similar exemptions in those jurisdictions.
Temporary Hours of Service exemption
While the Declaration of Emergency remains in effect in Ontario, vehicles engaged in providing relief in an emergency are exempt from Ontario’s Hours of Service regulation. This exemption applies to all provincially regulated carriers that operate in Ontario only. The exemption is not mandatory, but carriers can choose to claim it.
According to Ontario’s Ministry of Transportation, this exemption allows carriers to alter regulatory limits on hours worked both on a daily and weekly basis. Typical adjustments include allowing employees to drive beyond the maximum limits imposed by the weekly cycle limit, work shift and daily limits. The exemption will also allow vehicles to be operated with limited staff if needed.
Operators are nonetheless responsible for ensuring the safety of their drivers when moving goods for emergency relief.
The Ministry of Transportation has directed carriers taking advantage of this exemption to refer to the criteria set out by Transport Canada in connection with the federal government’s Essential Freight Transportation Exemption, which was signed on March 24 and expired on April 30, when considering the definition of responding to or in support of a declared emergency. For example, the federal exemption includes a list of goods and people that a carrier would need to be transporting to meet the definition.
The Essential Freight Transportation Exemption can be found here in its entirety.
The Ministry of Transportation has also provided a list of “tips and best practices” for carriers using this exemption, including:
- Where possible, all legislative requirements should be followed. Where not possible, deviations from mandatory rest requirements should be minimized
- Carriers should ensure that all drivers take a minimum of eight consecutive hours of off-duty time after the completion of every shift
- Carriers and drivers should be aware of available rest areas along their travel routes
- Drivers should, during all on-duty non-driving periods, perform fatigue self-assessments to make note of any previous instances of hard-braking or veering while driving and other physical drowsiness indicators. Drivers should be required to report results to the operator to ensure they are not fatigued before starting another shift
- Employees should not be requested to start another shift if evidence suggests that fatigue is a concern
- Drivers and carriers should continue to document all driver Hours of Service in the driver’s daily log in anticipation of when the exemption ceases to apply
- Carriers should identify the nature of the relief being provided under the exemption on the hours of service record, and carriers and drivers should be able to articulate how they are providing relief or responding to an emergency
Note that a driver’s on-duty and off-duty time within the meaning of the Hours of Service regulation, including time spent while working under the exemption, shall be included in calculating a driver’s hours of on-duty and off-duty time for complying with the regulation once the driver returns to normal duty.
Ontario’s daily inspection exemption
Carriers may also choose to be exempt themselves from performing daily inspections on their vehicles, keeping related records, or following their maintenance statements for the company while providing emergency relief efforts.
The Ministry of Transportation provides the following “tips and best practices”:
- Where possible, all legislative requirements should be followed. Where not, operators and drivers still need to ensure that the vehicle is inspected and maintained frequently to ensure that it is fit and meets the requirements of the Highway Traffic Act, at all times.
- When a vehicle is inspected by the driver, a report should be completed
- Carriers should be able to identify the nature of the relief being provided on completed trip reports
Ontario’s speed limiter exemption
Carriers may also choose to operate without a functioning speed limiter in their vehicle while providing relief efforts. Drivers are nonetheless reminded that they are not permitted to speed.
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