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Family Feud

There are several significant amendments proposed to Ontario's Highway Traffic Act by way of Bill 169 that received First Reading in the Legislature on February 21. The Bill proposes a number of amend...

There are several significant amendments proposed to Ontario’s Highway Traffic Act by way of Bill 169 that received First Reading in the Legislature on February 21. The Bill proposes a number of amendments to the Act, with three in particular that will be of significant concern to the trucking industry. I had the opportunity to discuss the changes at length with Carole McAfee Wallace, a transportation lawyer based in Toronto with WeirFoulds L.L.P.

The first significant amendment is to Section 84 of the Act dealing with unsafe motor vehicles with a proposal to specifically target the driver of a vehicle, holding him or her responsible if any part of a vehicle or anything affixed to the vehicle becomes detached while on a highway. The proposal is in part related to the accident last year in which a “flying sandshoe” killed a motorist in the Toronto area.

The penalty on conviction is up to $20,000 and, in addition, the driver’s licence may be suspended for up to 60 days. Given the severe possible penalties, and the absence of any provision excluding a due diligence defence, it appears that the offence is one of strict liability.

In addition to the driver, another significant change is that the person who repairs or maintains the vehicle can also be charged with this offence if the Crown can prove that they did anything that caused the part of the vehicle to become detached. McAfee Wallace notes that the Crown will likely have difficulty proving that the person who repaired the vehicle caused the part to become detached and, as a result, the drivers are the ones who are most exposed to this new offence. I can envisage some interesting family feuds in this area, with drivers and maintenance personnel testifying against one another.

One concern voiced by an industry member is the possibility that what was once considered an “insecure load” matter will become a considerably more serious “detachment” charge, and that while there is some comfort in the apparent strict rather that absolute liability aspect, the optics of the offence in Court will be largely indistinguishable from a wheel separation.

The second proposed amendment is a complete revision to Section 107 of the Act pertaining to vehicle maintenance. With respect to preventative maintenance, the section requires operators to establish a system to periodically inspect and maintain vehicles and to keep a written record of the system. But the proposals will give authority to regulate the minimum requirements of the operator’s preventative maintenance system, including the content and frequency of the inspection and maintenance. This is a significant departure from current requirements allowing the operator to develop its own preventative maintenance system, policies, and procedures based on its operation, perceived needs etc.

Regulations will also prescribe the qualifications of the person who can inspect the vehicles and prescribe different qualifications for different types of inspections and vehicles. Only after reviewing the proposed regulation, which is not yet available, will it be possible to assess the reasonableness of the new standard. This amendment will, without question, require operators to completely overhaul their preventative maintenance policies and procedures and potentially require operators to change their maintenance personnel.

The third amendment also involves Section 107 and changes to driver vehicle inspections. There will be a Regulation prescribing an under-vehicle inspection as well as the content, method and timing of both the daily and the under-vehicle inspections. It is my understanding that as a result of these amendments, the current 27-item trip inspection is going to be much more detailed and the number of items to be checked dramatically increased. It will be necessary to retrain all drivers on vehicle inspections.

Drivers will be required to note any defect found after the daily inspection is conducted and to report defects forthwith to the operator. Section 107 also provides for a regulation which will identify certain defects which, if present, will prohibit a driver from driving the vehicle. Again, if such a defect occurs on the road, the driver will have to stop the vehicle immediately and repair it or risk being charged with an offence.

As a general comment, McAfee Wallace suggests that the proposed amendments place additional burdens and obligations on drivers and carriers in an already heavily regulated regime. The costs to carriers for complying with the new amendments will also likely increase.

I would agree that the most significant impact is on drivers, while many vehicle defects found at a roadside inspection can be often traced to an improper or incomplete vehicle inspection. So perhaps some of the changes are justifiable. That said, I would also suggest that the disturbingly high potential fines on drivers coupled with possible licence suspensions will not only turn off and turn away drivers from the industry but will serve to aggravate chronic driver shortages that have plagued this industry for years along with the high associated costs.

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