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Contesting ‘Fail to Maintain’ Charges

For carriers, the "fail to maintain vehicle" charge under Section 107 (3) of the Highway Traffic Act is the "careless driving" of vehicle maintenance charges. It would be unlikely, for example, that p...


For carriers, the “fail to maintain vehicle” charge under Section 107 (3) of the Highway Traffic Act is the “careless driving” of vehicle maintenance charges. It would be unlikely, for example, that police would lay a “careless” charge because a driver was speeding. But if the driver was speeding, ran a red light, and made an improper left turn, such a charge would be appropriate.

Similarly, it’s doubtful most officers would lay a “fail to maintain” charge where there is one defect on the truck. But where there are a couple or more, and a charge laid as a result, this is the probable charge along with the penalty of 6 CVOR points.

I have written before about the availability and structure of a due diligence defence to this and other types of charges. But I expect with this particular charge, things could get interesting in terms of a defence. Here’s why.

Section 107.3 of the Act states:

Every operator shall inspect, repair and maintain or cause to be inspected, repaired and maintained all commercial motor vehicles and trailers under the operator’s control in accordance with the prescribed vehicle component performance standards and the operator’s system for periodic inspections.

A careful read of this section notes two key offending provisions. First that the vehicle is being operated in accordance with vehicle component performance standards. But the second aspect is the interesting one and that is the vehicle be maintained in accordance with the operator’s system for periodic inspections.

Note that the key word in the legislation is “and”, which our lawyer contacts advise, has a very clear legal meaning. So while it is indeed possible for a charging officer to be able to prove that defects found were in fact contrary to prescribed performance standards, it is less likely he or she will be able to demonstrate their familiarity with the operator’s system for periodic inspection and maintenance and whether or not the vehicle met those standards.

For what it’s worth, we had a case in London court where this approach was taken. The J.P agreed, and the charge was dismissed. Just as interesting, was that the Crown did not appeal the matter, which is often a sign there may be a problem with the wording of the legislation. We’ll see.

Insurance is a hot topic these days given that it is generally the 3rd biggest variable cost to the industry following labor and fuel. No doubt everyone associated with the trucking industry is aware of some “bad scenes” regarding insurance. There are those where carriers, usually smaller ones with accident claims where they are not at fault, but where other drivers/vehicles have been attracted to them like magnets. The problem of course is that given the “no fault” nature of the Ontario system, the subsequent claims jack up the carrier’s insurance loss ratio to the point where the insurance company has in some instances refused to renew the policy, and in many more, resulted in huge percentage increases. There is no end in sight with respect to rate increases. And I expect that as a result, we are going to see in the coming months, carriers, particularly some of the smaller ones, simply close their doors. To add to the problem, there are rumblings from insurers themselves that they want to get out of the auto business which would further tighten the market. Unfortunately, there appears to be no easy answer.

I have had several questions lately regarding the retention of toll and bridge receipts, and the production of them during audits. Some suggestions such as “why don’t I just give the auditor a shoe box” are just silly and would only serve to antagonize. But there are others where the carrier does not file such receipts by driver or trip. Instead they are filed perhaps by date, and in other instances by toll road to assist in some instances the completion of fuel tax returns. Whatever, they are not neatly filed for ready comparison to log records.

There is nothing in the HTA or the Regulations regarding how such required documents be filed, only that where one is issued to the driver, that he or she in turn submits them to the operator, and that they be made available for audit. Now I have been aware of some instances where an auditor will threaten a charge if, for example, a PA toll receipt for a particular trip cannot be produced. But I would suggest that in those instances, that it would have to be demonstrated that a specific receipt was in fact issued, and further that the driver submitted it to the operator. There are plenty of cases where drivers do not submit receipts, in most cases because they are paying the fee.

For what it’s worth, the carriers that I am familiar with, who by some means track receipts against driver logs, whether by random manual audit or with a computer-based log verification program, have a better overall compliance rate. It is simply another available control mechanism. And given that driver logs can account for essentially 50% of an audit score, it’s important that on-road receipts of all types be scrutinized.


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