There are a number of areas under the Highway Traffic Act where carriers may be charged along with the driver for offences that take place on the road.A general offense description reads that, "the op...
There are a number of areas under the Highway Traffic Act where carriers may be charged along with the driver for offences that take place on the road.
A general offense description reads that, “the operator did permit the operation of a vehicle or an action of the driver contrary to the law.”
In English, this means that if, for example, a driver was charged with failing to maintain a logbook, then the company could also be charged, for permitting the driver to do so.
Another example: in the case of a driver charged-as the result of a roadside inspection-with “driving unsafe vehicle,” the company can also be hit with “operating unsafe vehicle.”
Both may be valid charges, but sometimes they are not particularly the ones laid at roadside, as opposed to those that result from an on-site audit.
First of all, let’s deal with the audit example.
Ontario’s audit process is very extensive, and follows established policies, procedures, and practices. It is consistently applied.
During an on-site audit, the officer has access to documentation and paperwork, as well as the assistance of the people who administer the fleet’s safety and compliance programs.
Questions can be raised, answers are required, and explanations of unusual circumstances can take place.
Let’s say that a driver’s logs are falsified and this is brought to the attention of the safety manager. The company can then go through their records, pull out a note in the driver’s file, and show the auditor that the driver in question had been suspended for two days.
In addition, carriers must demonstrate, to the auditor’s satisfaction, that in all such cases there is some form of disciplinary action occurring.
If the auditor is satisfied with the overall administration, monitoring and control of the hours-of-work program, a charge of “false log” may very well be laid against the driver, but a related charge would not (or, at least, should not) be laid against the fleet.
Moving along, the word “permit” is pretty clear, both in definition and in practice. As a lawyer, I can accept “did permit” charges that are laid as the result of an audit.
However, I have a far greater difficulty with these charges (and so should you, carriers) when the charges are the result of a roadside ticket alone.
That said, there will be times of course when it is obvious that the fleet should share in the blame-and the punishment.
There was one such case I encountered where a driver told an officer that his company doesn’t buy logs and that its drivers, therefore, bought their own.
Hardly a diligent operation.
But go back to the earlier example when the carrier is audited.
There would be many commercial vehicle-enforcement officers who, if they had found a false log on the road, would lay a charge against the driver and the company right away – without knowing anything about the carrier other that seeing its trucks on the road.
The officer makes an assumption that the operator “permits” the false-logbook situation, when in fact, the carrier might not.
The key to ensuring your fleet’s record is clean is by setting in-house policies that would indicate to a reasonable person- and particularly to an auditor-that your company does not permit any illegal actions.
Most important: the proof has to be there in your records.
With log charges, for example, it is imperative that the operator can demonstrate the training and re-training, as required, of the particular driver. They must also show disciplinary practices… both generally and specifically.
A driver whose file is chock-full of discipline notes probably won’t cut it. Sure, he receives the letter and a talking to, but carries on violating the rules. This would be viewed as ineffective by an auditor.
Discipline, on the part of the fleet, has to be delivered in a consistent, progressive and effective manner.
Obviously, part of the “permit” equation ties to the overall log monitoring and control mechanism on the part of carriers.
It doesn’t matter what the system is, be it electronic or manual.
So long as the system is clear-that drivers have an understanding of the rules in place-and it serves as the basis by which to take any required action to ensure compliance.
If you think you run a good ship you probably do.
If you’re confident that you do not permit non-compliance, you probably don’t, so don’t take these charges lying down. It’s all part of your due diligence.
Thanks to the APTA
I recently had the opportunity to speak at the 50th annual meeting of the Atlantic Provinces Trucking Association, held at the end of October in Moncton, N.B.
It was a great event; both well organized and attended.
It gave me the opportunity to connect with clients and friends, and to just get away for a couple of days.
I’d like to send out a thank you to Ralph Boyd, APTA president, and his wonderful staff for making me feel so welcome down East. n
– Blair Gough is a consultant to the trucking industry and can be reached at 905-689-2727.