A fine balance

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I felt compelled to begin this article with some information regarding fines assessed against commercial motor vehicle operators and their drivers for HTA offences, but particularly those where charges are laid by way of an information (no set fine) under Part 3 of the Provincial Offences Act.

Charges laid under Part 1 of that Act, the familiar roadside yellow offence notice, contain a box showing the set fine, which depending on the offence, ranges to a “high” of $500, whereas the Part 3 summons has no set fine, and carries a maximum on conviction of usually $20,000. Detached wheels can go as high as $50,000.

Fair enough. But it shouldn’t come as any surprise to anyone that many question the equity of some of the fines given out by the courts. Take for example a recent conviction for “operate unsafe vehicle” that netted a $5,000 penalty compared with a similar fine against the Red Cross, which was convicted in Superior Court (Hamilton) in May under the Federal Food and Drug Act for distributing adulterated blood products that seriously compromised the health of numerous people between 1983 and 1990.

There are many similar scenarios where financial penalties are much lower than may be a conviction tied to defective brakes or a logbook offence. There is a growing and persistent sense among many in the industry that the fine structure is punitive, with a touch of cynicism thrown in that the relatively high fines are a revenue scheme.

Q: I know you have raised the issue before about “non-operator use” or “personal use” of a commercial motor vehicle and recording that time as off-duty rather than driving. Certainly your view is in conflict with most officers, who take the approach that driving a CMV under any circumstances is to be entered on the driving line. Is there a definitive answer as to whether driving a CMV can be logged as off-duty?

A: Apparently not since most officers disagree with my approach and I’ve had a couple of them tell me so. But I can tell you this. The definition of “on-duty” under the Highway Traffic Act does not exclude the ability to include driving time as off -duty time, so long as a driver has been relieved of responsibility by the operator for performing work.

Further, the Ontario regulation was indeed modelled after the former USDOT Regulation in large part, and that regulation clearly permits the “driving off-duty” scenario in its regulatory guidance provisions. It reads as follows: ” When a driver is relieved from work and all responsibility for performing work, time spent travelling from a driver’s home to his/her terminal (normal work reporting location), or from a driver’s terminal to his/her home, may be considered off-duty time. Similarly, time spent travelling short distances from a driver’s en route lodgings (such as en route terminals or motels) to restaurants in the vicinity of such lodgings may be considered off-duty time.”

So there you have it. The Highway Traffic Act does not prevent the situation. The USDOT allows for it. And from a purely logical perspective, how on earth is a CMV driver to be considered “on-duty, driving” for an operator, when he or she is out tooling around on the weekend or any other time for that matter?

Q: Are my owner-operators obliged to abide by a uniform company maintenance policy that we have in place for company-owned equipment?

A: No, providing you set a policy that accounts for their equipment as well, and what your requirements and standards are. This said, I would always suggest that the operator set the minimum standards and inspection intervals for owner-operators, as well as documentation requirements.

Q: We have a driver who claims that he cannot run to Canada because of a conviction 10 years ago for driving under the influence (DUI). Is this a legitimate refusal for entry to Canada or is it just a ruse as we have a number of drivers who don’t want to cross the border?

A: The driver is right. The equivalent offence in Canada under the Criminal Code would be impaired driving or blowing over 0.8 alcohol reading. And while you noted that in the U.S. his offence was a misdemeanour, in Canada these offences are what are known as “dual procedure”. They can and usually do proceed as a summary offence but may proceed by way of indictment. And under the immigration rules regarding entry to Canada, the question is whether the offence committed in the other country could be proceed by indictment.

Q: One of my owner-operators installed red-side marker lights on his tractor. He was stopped by a police officer who warned him that this is illegal and ordered him to remove the bulbs. Is such lighting prohibited?

A: Yes. The Highway Traffic Act is very specific with respect to lighting requirements and understandably so. Red lights that project to the front of a vehicle are prohibited save and except for emergency vehicles for example. To allow otherwise could certainly cause confusion especially at night.

Blair Gough is a consultant to the trucking industry and can be reached at 905-689-2727.

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