It is important for carriers to be able to demonstrate policies, procedures, and practices that indicate they’re in compliance with the wide range of laws and regulations that govern our industry. Doing so is simply a good business practice, but it is also known as “due diligence” in the world of the courts.
When it comes to safety compliance, being able to demonstrate due diligence before a court is a necessary component of any proper defence.
When contesting a charge, you should take the approach that it is often in your best interest to “educate” the court with considerable detail, but in a logical and ordered fashion. A due diligence defence is often the best way to proceed, particularly if your are charged with “permitting” a driver to break the law by doing something such as exceeding their legal driving hours.
With some exceptions (e.g. speeding and failing to stop at a red light), Ontario Highway Traffic Act charges fall into the “strict” rather than “absolute” liability category. In other words, there is a defence of due diligence, meaning the operator took all reasonable steps to avoid committing an offence.
In most cases, the safety director should be put on the stand to testify about his/her responsibilities within the company. You will want to cover their overall experience and training, and convey the message that safety “calls the shots” rather than the operations department – as it should. That means if the vehicle or driver is not fit for the road, they’re not dispatched.
You will also want to be able to demonstrate that senior managers and owners offer their full commitment to safety and compliance.
You should be able to explain the hiring and qualification process in logical detail. There should be evidence of consistency and specific policies and procedures that indicate hired drivers are subjected to various screening processes to show that both drivers and the company are being responsible.
You’ll want to detail the full scope of initial training, with a particular focus on areas that are the subject of the charge (e.g. pre-trip inspections, brake adjustment, dangerous goods, etc.)
Be prepared to discuss all ongoing training, such as regular safety meetings, specialized training and any other training that may be required. For example, when a problem such as a charge related to trip inspections emerges, is the driver “flagged” for an interview and offered additional training?
You’ll want to deal with any specific training that’s been given to the driver in question.
And be sure to identify all other “training-type” initiatives, such as driver newsletters, driver manuals, and other literature given to those behind the wheel.
It is particularly important to explain the full range of company policies and procedures, establishing their accuracy, effectiveness and consistency. But be sure to focus on those policies that relate specifically to the charge.
The driver discipline process should be seen as logical and progressive. The company should not be seen as blaming the driver for the charge, unless it is clear that the driver did not follow specific policies and procedures.
How do you track the company’s safety and compliance performance? Do you monitor CVOR points, or review and act on roadside inspection reports?
You will want to demonstrate any improvements that have taken place. For example, if there has been a drop in the number of vehicle maintenance charges or driver log charges, be prepared to explain why this is the case.
Such information could offer an example of how the company identified the problem and took specific steps to correct it.
A preventive-maintenance policy is crucial for any trucking operation, and you’ll need to show that the vehicle in question met the parameters of the policy.
If the tractor and/or trailer belongs to an owner/operator, the carrier will still have to demonstrate how the vehicle complied with a documented maintenance schedule.
All maintenance records can help prove the case and are important pieces of evidence. You’ll want to point out the qualifications of those who maintain the vehicles, whether or not the work is done by outside facilities. In terms of training, you should also identify any training programs for the maintenance personnel. So too will you want to draw attention to any database or other system used to flag vehicles for required maintenance, and track the work.
It’s also important to catalogue any drive-through inspection facilities and random inspections that are a fact of daily life. And you need to know if drivers are qualified to adjust brakes, or how often brakes are adjusted if they are not. This would be a good time to point out devices that warn of out-of-adjustment brakes.
Ultimately, if it’s an Ontario charge, you’ll also want to review a current CVOR abstract prior to any trial because the records can work in your favor, particularly if there are no prior convictions. n
– Blair Gough is a consultant to the transportation industry and can be reached at 905-689-2727.
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