There’s No Escaping It

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Absolute liability in Ontario, assigned to the operator in the event a wheel becomes detached, remains intact. Section 84 of the Highway Traffic Act does not allow for a defence of due diligence, following numerous unsuccessful challenges in the lower courts, a finding in the Ontario Court of Appeal that the provision is valid, and ultimately the Supreme Court of Canada decision to deny leave to appeal to that body.

The traditional arguments on both sides have been understandable. The families of those injured and killed, the motoring public, road safety groups and enforcement personnel, are certainly supportive, while the trucking industry and the legal profession cringe at the thought of having no available defence even where the facts are clear that the operator was not at fault. Arguments on both sides I feel have merit. But life must go on.

For what it’s worth, Ontario through various safety initiatives over the years, has created a safer trucking industry and one more concerned about the equipment and drivers it places on the road.

While absolute liability has now been clearly established, due diligence can certainly be used as a mitigating factor in speaking to penalty. The fines can range from $2000 to $50,000 dollars – certainly not chump change.

There are several factors one might consider. First, take a hard look at your CVOR record. Hopefully it will reflect a positive maintenance history in terms of related convictions and an acceptable out-of-service rate below the provincial average.

A good maintenance history should be reflective of effective in-house policies and procedures. So you will want to be sure to have detailed preventative maintenance practices for your fleet, but also be able to detail specifically the repair and service history of the specific vehicle from which the wheel became detached.

I have known of several instances, where a wheel separation occurred in a relatively short period of time following installation or an annual inspection. There is plenty of literature on this subject, but there is a general consensus that following installation, wheel nuts should be checked for tightness within 75-100 miles, and they should be re-torqued to specifications within 500 miles. It has also been suggested that drivers would benefit from a “lite version” of a wheel installation course, if only so they can observe a proper install.

It will be important that you are able to demonstrate knowledge of wheel failure, including particularly the primary causes being loose or over-torqued wheel nuts, worn or cracked rims, and wheel bearing failure. The ability to speak to how your company and drivers take steps to check these items regularly may work favorably with regard to an appropriate fine.

While I haven’t come across it myself, there have been some rumblings that the occasional Crown has mused that where a wheel detachment conviction is registered, fine levels of $5000-$10,000 are reasonable given that the maximum is $50,000. (e.g. 10% – 20% of the max.) I find that logic difficult to grasp, certainly in those instances where it’s a first offence and there is no evidence that the operator’s maintenance practices were sub-standard. I mean heck, under the Criminal Code, passing a counterfeit bill can get you 14 years in the jug; impaired driving causing death, life imprisonment, or if convicted of being a common nuisance, 2 years. Save and except for the most extreme or serious of circumstances, I think one would be hard-pressed to find instances where even close to the maximum sentence is given. I mean, just read the paper.

Putting the specific circumstances in perspective may be in order.

Insecure loads or equipment are of concern to highway enforcement personnel, with increased vigilance as the result of the “flying sandshoe” (see photo below) that hurled through a windshield killing motorist Fernando Martins on Highway 401 westbound on May 15, 2004.

The 20 kg shoe was damaged to the point where it would be considered unusable. As a result of this tragedy, police have been receiving a number of reports about landing gear painted orange, as well as missing sandshoes. While there are plenty of orange trucks and trailers, it is less common that the landing gear has been painted. The police ask that the industry keep an eye for orange landing gear, and that any information be reported to the O.P.P. at 416 235-4981.

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