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OTA responds to introduction of omnibus safety bill at Queen’s Park

TORONTO, Ont. -- Ontario's Minister of Transportation, Harinder Takhar, has commenced his first major legislative i...

TORONTO, Ont. — Ontario’s Minister of Transportation, Harinder Takhar, has commenced his first major legislative initiative this week with the introduction of the omnibus safety Bill 169 (the Transit and Road Safety Act) for first reading in the Legislature.

The bill contains over 25 measures aimed at improving road safety. While many of the measures have no direct impact on the trucking industry, there are a number that do.

A major focus of Bill 169 is addressing the problem of speeding. The following measures are proposed:

– Permitting municipalities to limit speed to 30 km/hr in traffic calming zones
-Allowing MTO to use variable speed limits on highways where the speed limit can be changed using electronic speed limit signs to reflect changes in highway conditions.
– Increasing the fines for those traveling over 30 km/hr
– Increasing suspensions for those convicted for second and third offences for traveling greater than 50 km/hr over the posted limit.
– Allowing reduced speeds in construction zones and increases fines for speeding in construction zones.

"While these measures are positive steps as far as they go and represent at least a symbolic effort to reduce speeding in Ontario, it is important to note that there are no new commitments to expanding enforcement of the speed limits," comments the Ontario Trucking Association (OTA). "Increased fines and penalties are only as effective as the speeders perceived risk of being caught and without additional enforcement it is unlikely that these measures alone will have a significant impact on driver behaviour."

Section 84 of the Highway Traffic Act (HTA) is being amended to make it an offence for any part of any vehicle (including commercial vehicles, automobiles, mobile cranes and any road building machine) to become detached. At the present time, the only similar offence is restricted to wheels that become detached from commercial vehicles. This will be an offence for the driver of the vehicle, and for the first time it will make the person doing repairs as well as the repair shop liable if it caused the part to become detached. The fines for an offence involving a commercial vehicle, mobile crane and road building machinery, will range from $400 to $20,000. In large part, this measure is in response to last year’s fatal incident where a car driver was killed after a piece of a sand shoe from a truck crashed through his car’s windshield.

Two of OTA’s chief concerns with this approach are addressed in the bill: (1) the law should allow due diligence defenses (in other words the offences should be matters of strict liability as opposed to absolute liability as is the case with wheel-offs); and (2) the law should apply to all vehicles including cars, not just trucks. The Minister of Transportation’s bill includes both of these measures.

"This may be good news as far as wheel-offs goes because the police will have a lot more alternatives to charge whoever is actually responsible. It could result in a reduction in activity relating to the absolute liability section for carriers," the OTA says.

The bill also includes an amendment that provides a more comprehensive description of the wheel components that are captured within the exiting absolute liability provisions. It now includes any "major component of a wheel, such as a wheel rim or wheel assembly, and a large piece of a wheel or of a major component of a wheel, but does not include a tire or large piece of a tire".

"This closes the loophole for some of the other parts that could detach but aren’t actually wheels. It also signals clearly that the government no doubt buoyed by recent court decisions, remains committed to the absolute liability offence for wheel-offs," the OTA says.

In an attempt to speed up the cleanup following a highway accident, the Highway Traffic Act is being amended to give sweeping powers to police officers at the scene, including the power to order the removal and storage of a vehicle, its cargo and debris without the consent of the owner of the vehicle and its cargo, or the insurer of the vehicle and cargo, and no action can be brought against the officer for his actions provided he acted in good faith.

"The costs of the removal and storage will be the responsibility of the owner, operator and driver of the vehicle, which may eliminate much of the argument at the scene of an accident about liability and responsibility to pay the service providers, usually towing companies and their subcontractors," the OTA points out. "A long standing complaint from the towing industry or at least those involved in recovery operations is that not infrequently they have to wait a significant time to receive payment for their services – all other parties assisting at the scene receive payment directly from government sources. One of OTA’s long-standing complaints about the time it takes to clean up after in accident is that it is not clear which agency is in charge. The bill attempts to address that at least in part. However, there are significant cost and liability issues that need to be considered."

The OTA says it’s currently discussing this issue and the implications of the proposed change with the insurance industry, since it has been suggested that a change in the insurance regulations may be required. OTA says it’s concerned that where more than one vehicle is involved in an accident, the party who is perceived to have the deepest pockets usually the trucking company will be stuck with the bill.

"Presumably the carrier will be able to take civil action to recover its costs, but whether this is fair needs further examination."

Section 107 of the HTA has been completely rewritten to facilitate adoption of the revised NSC Trip Inspection standard. The changes allow for revised daily inspection requirements as well as under-vehicle inspections. There is also an allowance for continued operation of a vehicle with certain minor defects. These changes will not come into effect until the supporting regulatory changes are drafted, which could take another year.

The bill would also allow the Minister to designate any lane on a highway as a high occupancy vehicle (HOV) lane, the use of which will be limited to vehicles carrying a specified number of occupants. This will be determined later in the regulations.

In most other jurisdictions the limit is a minimum of 2 people in the vehicle. The HOV lanes can be either existing lanes on highways or newly constructed lanes specifically created to be HOV lanes. In the past MTO has indicated that its intent is to generally create new lanes to serve as HOV lanes rather than take away existing lanes.

"While this measure is designed to reduce traffic congestion on highways by encouraging more carpooling, the loss of existing lanes could in fact lead to more congestion on the regular lanes, impeding the movement of trucks," comments the OTA, adding it wants the ministry to apply this new power only to new lanes.

The bill would give MTO sweeping powers to licence and regulate driving schools, including course content, and instructors. While initially aimed at the car driver training industry, the powers contained in the bill can, by regulation, be applied to any type of driver training, including commercial driver training.

"Given ongoing concerns over the state of commercial driver training, the ministry could use these powers to establish a licencing regime for the commercial driver training schools and instructors," the OTA says.

The bill proposes to add a section to the HTA to allow MTO to conduct research and testing in pilot projects involving vehicles or operations inconsistent with existing HTA requirements. This could be beneficial, the OTA says, as it gives the Ministry more flexibility to deal with innovative suggestions without having
to go back through the legislative process.

Bill 169 will likely receive second reading later in this Legislative session. At this point it is unknown if the bill will go to committee before third reading.

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