Protect your CVOR with a due diligence defence

Carole McAfee Wallace

Carriers that operate trucks in Ontario need to protect their Commercial Vehicle Operator’s Registration (CVOR). And one of the ways to ensure the CVOR remains in good standing is to defend against all charges under the Highway Traffic Act (HTA) or related highway safety laws.

This may mean exercising your right to a trial, but can also include entering into a resolution with the prosecutor, eliminating or reducing CVOR conviction points.

Ontario truck inspection
(File photo)

The impact of Covid-19 on a defendant’s right to a trial within a reasonable period of time — as protected by Canadian Charter of Rights and Freedoms — remains to be seen, and will no doubt be the subject matter of future court cases.

But separate and apart from such a challenge is the carrier’s assessment of whether it has a defence relating to the charge’s merits.

Regulatory offences, such as those set out in the HTA, are either “absolute liability” or “strict liability” offences.

An absolute liability offence leads to a conviction if the prosecutor proves beyond a reasonable doubt that the accused committed the essential elements of the offence. Speeding is an example.

The due diligence defence

For a strict liability offence, the burden then shifts to the defence to prove that it took all reasonable care that a reasonable person would take under the circumstances, to avoid the event. This is the due diligence defence.

What constitutes reasonable care depends on the particular facts of each case, including the potential harm and availability of alternatives for the accused.

One of the most serious strict liability offences under the HTA is “permit operation of unsafe vehicle” contrary to Section 84(1), which is usually laid when a critical defect is found during an Ontario Ministry of Transportation (MTO) inspection.

In assessing the ability to successfully defend this charge, many carriers are surprised to learn that their systems fall short, and going to trial carries risk. A successful due diligence defence to an “unsafe vehicle” charge includes considering the carrier’s preventative maintenance system, and procedures for driver hiring, training, and ongoing monitoring.

Maintenance and driver training

With respect to maintenance, the key components of a defence include a written preventative maintenance policy, confirmation that the unit in question underwent preventative maintenance in accordance with the policy, and confidence that service providers were qualified to do the work.

If the unit in question was not inspected in accordance with the preventative maintenance policy, it is hard to argue that the carrier took all reasonable steps to ensure the vehicle in question was in good mechanical condition.

With respect to driver training, what is reasonable in the circumstances may include an assessment of the driver’s ability to conduct a pre-trip inspection (such as by way of a pre-employment test and/or training, and formal testing to measure understanding and compliance), a system to monitor the driver’s conduct, ongoing training and reminders. Driver discipline policies and owner-operator agreements may also be reviewed.

Every step the carrier takes should be documented. Prosecutors, and courts, want to see the documented evidence of what has been done.

Undertaking a critical assessment of due diligence will let the carrier know the strengths and weaknesses of its case, which is important for deciding whether to exercise the right to a trial or engage in resolution discussions.

Prosecutors are more open to considering a reasonable resolution if the defence can provide, without prejudice, some evidence of due diligence.

In addition to showing how best to handle the pending prosecution, assessing due diligence will expose any weaknesses in a carrier’s safety systems. This gives the carrier an opportunity to take the necessary steps to ensure success in future cases, and better still, avoid a future violation altogether.

Carole McAfee Wallace

Carole McAfee Wallace is a partner at Fernandes Hearn LLP, and can be reached at 416-203-9551. This column is intended for information purposes only and does not constitute legal advice.

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  • This times with the pandemic and the system is a joke, we are not permitted a proper opportunity to defend ourselves as example, I was cited with a “no seatbelt” infraction and the officer told me he had no issues if I chose to take it to court. In the attempt to do so, I had to call a number furnished on the back of the citation which led to a woman who worked for the court but was receiving calls at her home to which she replied the courts were closed due to the pandemic and I was to call back in a month when the courts were scheduled to open. I followed up in the timeframe to receive and answering service stating the courts would continue to remain closed until further notice. I shortly received a notice of conviction to the charge and I never had my chance to appear in court despite sending the citation with notice I chose to dispute.

    My licence renewal was due shortly and I was notified my license would be temporarily suspended until the fine was paid, I was left with no choice to pay the fine as my career relied on my licence.

    I feel I should have been notified in writing as to when the courts would hear my plea and no conviction should have been continued until I was fairly dealt with!