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Apply the duck principle for on-duty decisions

Q. Can drivers show waiting time at Customs as off-duty?...


Q. Can drivers show waiting time at Customs as off-duty?

A. I love these types of questions because of the yes, no and maybe possibilities. Common sense here has to be the prevailing factor, and I’ll offer my opinion. The normal type of wait, even if a long one where the driver would be required to remain in the truck as he or she is inching forward, would be driving time. But during such waits there may be short periods where the driver is on-duty but not driving. And I’ll go even further to suggest that where ya ain’t moving and know you won’t be, I’d book it as off duty and if need be argue about it later. If you’re sitting on your bunk watching the news on TV, off-duty strikes me as the obvious status.

The general guideline for recording hours should always follow the old maxim “if it looks, walks, and talks like a duck, then it’s probably a duck. One should view the duty status in a similar light.

Q. I’m a bit upset about the manner by which an operator’s “Ontario Fleet Size” is calculated for CVOR purposes, and for a number of reasons. What bugs me the most is that my total fleet of 24 units does 50% of its mileage in Ontario and I am allotted 12 trucks. My buddy has a 15-truck fleet and a 100% of his business is in Ontario, so he is rightfully accorded 15 trucks. My Ontario mileage is higher than his with both of our mileages essentially over the 401. Are the people that run the CVOR system not in tune with this type of inequity?

A. To answer your question, there are lots of people in the Ministry that are aware of these types of unfair situations. The response will be that the guts of the system as we all know it was the result of Target 97, a joint industry-MTO initiative that revamped the entire system.

While there were plenty of positive changes that flowed as a result, there were some glaring omissions in my view with regard to mileage situations as you note, but also with respect to exposure, (e.g. city vs. highway and enforcement) and the type of business in which the operator is involved. With regard to mileage operated, I would think it reasonable that total miles operated in Ontario compared with other fleets be a factor in fleet size calculation.

Q. I underwent a Ministry audit and failed the driver component with a 52% scoring. In three instances I was not given points because there were some toll receipts that were missing. They weren’t missing because we were not provided with them, and our records show clearly that the driver was not reimbursed.

Mine is more a comment than a question, simply being that while it was clear to the auditor that we maintain good controls over our driver hours and compliance, that a few “missing” receipts can drag you into a conditional status. This does not give me a warm and fuzzy feeling about the audit program.

A. I followed up with this operator to get further information. Apparently during the audit his safety director at the time did not really push this “deficiency” but should have. The receipts in question had indeed not been submitted by the driver who is an owner/operator. Of course they should have been, if they were in fact issued. A record of reimbursement would have been, had they been submitted. The policy in place with the Company is that all receipts must be turned in both for compliance purposes and in order to receive payment.

There are a couple of lessons to be learned here. First, the way the audit is conducted does indeed require that receipts be available, notwithstanding that the obligation with regard to receipts is that where those required have been issued, it is the driver’s responsibility to submit them to the operator for retention. So on one hand the operator has done nothing wrong by failing to produce a receipt that he never received in the first place let alone knowing if one was even issued. And from personal experience, I can confirm there have been several times that I have passed through a toll booth, made payment, and for whatever reason forgot to ask for the receipt.

I also made the comment to the operator that he would have had the opportunity when he was notified of the proposed issuance of a conditional rating to have appealed it. While I am not aware of whether an appeal surrounding this issue has been undertaken in the past, it strikes me that where the operator has not broken any rules, that consideration may be given, and particularly where there is no pattern of missing receipts per se, either with a particular driver or a number of drivers.

Operators who have been assigned a conditional rating as the result of an audit should also note that under Regulation 424/97 “Commercial Motor Vehicle Operators’ Information” there is provision that the Registrar “need not consider audit results where he or she is of the view that the records audited do not adequately reflect the operator’s safety performance and practices in Ontario.”

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


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