Absolute victory

by John G. Smith

TORONTO, Ont. – A recent Ontario Court of Appeal ruling could become an absolute nightmare for the province’s so-called lost wheel legislation.

With Ryder Truck Rental Canada’s victory in the case, enforcement officers from the Ministry of Transportation and Ontario Provincial Police are now being advised to lay “unsafe vehicle” charges when entire wheel assemblies break off, rather than imposing the heavier charges specific to lost wheels.

There are significant differences. The lost-wheel law carries a fine of between $2,000 and $50,000, while an “unsafe vehicle” charge under Section 84 of the Highway Traffic Act carries a maximum fine of $20,000. Perhaps more important is the fact that an unsafe vehicle charge doesn’t carry with it the so-called “absolute liability” clause found in the lost-wheel law. Without that clause, truck owners have the chance to argue that they did everything in their power to prevent a wheel from becoming detached in the first place. When charged under the law specific to lost wheels, there is no such defence.

In Ryder’s case, an entire wheel assembly had broken free from a 1993 International as it drove east on Hwy. 115 near Peterborough, Ont. on July 30, 1997 – only days after the province introduced the new law. But since the wheels did not detach from their fasteners, the fleet successfully argued that the law did not apply to this case.

Transportation ministry lawyers argued that, while the law refers to cases “where a wheel becomes detached”, it should also apply if an entire wheel assembly breaks off.

Justice John Laskin said such an interpretation was too broad because it would even include cases in which an entire trailer separated from the tractor. “Suppose a tractor-trailer lost the trailer it was hauling,” he mused in a written ruling. “Although the trailer would have separated as a unit, because it included wheels, the owner of the rig could be convicted under s. 84.1. Such a result seems unreasonable.

“Had the legislature meant to impose absolute liability when another component that includes a wheel detached from a vehicle, it could have said so.”

And while drivers are asked to check for cracked rims or loose fasteners during pre-trips, they aren’t asked to check axles, he added.

“Certainly, the legislation was intended to address all wheel separation incidents, including those involving a wheel and a hub,” says ministry spokesman Bob Nichols. But he confirms that ministry enforcement officers and Ontario Provincial Police have been advised of the way charges should be laid until the issue is resolved.

Ontario Transportation Minister David Turnbull has asked government lawyers to report on whether there’s a chance to appeal the latest decision, or whether the legislation needs to be altered.

“The section is very specific,” Justice Whetung wrote in the original decision. “The definition, in my opinion, is quite specific. There is no mention, at any place, of the axle … the axle separated, and that was the cause of everything attaching to the axle coming off with it.”

That’s not to say that the justices are ready to trivialize the law. Said Whetung, “It involves legislation that deals directly with the issue of public safety on the highway. It involves legislation meant to address a situation that is clearly within the forefront of public concern and involves serious matters of public safety and involves situations on our highways that have resulted in fatalities.”

The ruling is further proof that the law was hastily written in response to political pressure, says the Ontario Trucking Association’s Rolf Vanderzwaag, who played a key role in developing the province’s program to certify installers. “Now we’re seeing the effect of that.”

Four Toronto-area motorists were killed within two years in three separate accidents involving runaway truck wheels, and that led then-minister Al Palladini to unveil the law in an ecompassing Road Safety Bill.

The province should have to investigate such accidents to see where responsibility actually lies, he adds. “In the case of wheels coming off, it’s far more appropriate to set up mechanisms so they can go back and pursue a person who was negligent in their duties.”

That means the person who installed the wheel in the first place.

“Currently they are completely insulated from any kind of penalty, whether that be a certified technician, or just a guy working on his own vehicle, or some completely unqualified person who was doing this. (The law) provides a very low deterrent for the individuals actually doing this kind of work.”

“Regardless of the particular nature of the failure, whether it be a single wheel, a dual wheel where it comes apart at the fasteners, or a bearing failure, it’s probably hard to make a differentiation in the threat to public safety.”

Vanderzwaag admits that the province has had trouble proving “unsafe vehicle” charges in the past.

“Traditionally, it’s been difficult to define what’s safe and what’s unsafe,” he says. “We can measure the level of hazards based on data, but how do you define when something is actually safe?… something can be potentially very hazardous, but if nothing happens, it can be discounted.”

Ryder officials were unavailable for comment. n

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