The latest news out of Ontario’s Ministry of Transportation is that the written policy pertaining to recording personal use of a commercial vehicle as off-duty is being changed. While I haven’t seen a copy of the revised policy, it was put to me that whenever “the meat’s in the seat,” that time must be recorded as on-duty.

Let me back up here a bit. In 1996, I wrote the MTO director asking whether personal use could be recorded as off-duty. I knew it could be, as that was clearly a consideration when the hours-of-work regulations were first established in 1988, which I helped draft.

An obvious example of such circumstances would be when a driver wants to take his kid out for a spin on the weekend.

There are many MTO officers that never agreed with that and I can understand why; times like when a driver might record 500 miles as personal use over a weekend. An officer could validly speculate that those miles were really spent running freight up and down the road.

It’s likely that this kind of abuse has ruined it for those who have periods of legitimate personal use.

Notwithstanding the new policy, I still maintain that, under the hours-of-work regulations, certain driving periods can be recorded as off-duty. And here’s why: the definition of on-duty under the rule states that, “on-duty means time during which a driver performs activity for an operator at the operator’s request… except for time during which the operator relieves the driver of responsibility.”

Now if the definitions under the previous regulation were used, I could understand how any driving would be captured on the driving line, even though some was personal in nature. That regulation specified several on-duty activities, driving being one of them. But the way that the definition above is worded, in my opinion it is clear that when an operator relieves a driver of responsibility, the other time can be recorded as off-duty. This is no different from waiting times that can be booked on the off-duty line, providing of course that the driver is not responsible for counting the freight, staying with the vehicle, or whatever.

“But wait,” comes the response. “How can a driver be relieved of responsibility when he’s driving down the road?” My view is: when a driver is being relieved of responsibility only for hours-of-work purposes.

That doesn’t mean that he is relieved of the responsibility of complying with other sections of the HTA, for the same reason that when he’s off-duty (relieved of responsibility) at a shipper he’s not freed from other obligations, such as following occupational-health regulations.

The MTO tends to agree that the regular operator can hardly be responsible for what a driver chooses to do on the weekend. But officials there point out that on those occasions, a driver will have to have his own CVOR and that he is the operator. As a result, his personal time would have to be recorded on the driving line, and that time then reported to his weekday operator. While I understand the logic here, I don’t think it will work – again because of the definition of on-duty in the regulation.

As it now stands, (and while I haven’t seen the revised policy), I’ll be suggesting to my clients that all of their drivers obtain their own CVOR, and that for those periods where a driver is relieved of responsibility by them, that he produce his own CVOR when stopped. There are greater benefits here that go beyond just the hours of work regulations.

When the driver is stopped on the weekend, perhaps inspected, obtains a speeding ticket or whatever, he would produce his own CVOR (rightfully so in my view), and he would receive any associated points for infractions.

I still maintain that, over time, the only real way to solve the personal-use issue,will be an amendment to the regulation.

Now, on a personal level, I’ve been called a lot of things in my time, but a lawyer ain’t one of them. I learned of my new status upon cracking the cover of the last Truck News. I must admit I always turn to my column first, probably because I usually can’t remember what the article was I wrote.I have a tendency to ramble occasionally, hence the role of the editor, who separates the wheat from the chaff so to speak.

Normally it’s a “taketh away” process, this time it was “giveth.” It may have been the nature of the article, but in any event I was referred to as a lawyer, which I’m not. But it did bring me a chuckle. n

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