Up until The One was elected president of the United States, it was widely stated that America was a country divided. But really, is there a nation with more bipolar symptoms than our own Dominion — at least as far as businesses are concerned?
The point isn’t likely to be lost on extra-provincial truckers, who, despite the best intentions of centralized regulators, have for years been trying to manage all the regional nuances of the National Safety Code.
Give the guys in charge of the federal hours-of-service file some credit, though. They sure worked hard to negotiate uniformity during the exhausting, decade-long undertaking. But almost as quickly as Transport Canada put the rules in place on Jan. 1, 2007, did the cracks begin to appear in a handful of provinces, namely B.C. and Alberta, which decided instead to unilaterally exempt certain carriers and enforce (at least in-part) their own versions of the rules.
B.C., for example, gives a pass to truckers in the wood/pulp and paper sectors whose trucks are below the 11,794-kg threshold; while Alberta and Saskatchewan apply a scaled-back provincial standard to intra-provincial carriers in the oil and gas sector. (We’re told Alberta enforces the federal rule on extra-provincial carriers, but considering the ambiguity of such definitions, who really knows for sure how that’s working?).
With no actual enforcement on the ground, as we’re finding out, there’s little Transport Canada www.tc.gc.ca can do about it, much to the chagrin of many federally — regulated carriers who play by the national rules.
Now, according to a presentation given to the members of the Private Motor Truck Council of Canada (PMTC) this summer, Ontario’s insistence that GPS-satellite records be handed over as supporting documents in auditing carriers’ HOS profile has exposed a new, arguably more divisive rift in the federal-provincial HOS turf war.
Transportation legal expert Dean Saul, a partner with Gowling Lafleur Henderson LLP, warned of a "renewed constitutional debate" regarding federal HOS rules versus their provincial application.
The issue is somewhat weighted by legal jargon but the heart of it involves the case of an Ontario-based, extra-provincial carrier who refused to hand over GPS records to the Ontario Ministry of Transport (MTO).
Even though Ontario, like most other provinces, has mirrored much of the federal rules (mostly logbook-related aspects) in its own legislation, it now appears the province’s position is that it also has rights to "unfettered access to supporting documents" (interpreted by the MTO to include GPS records) as "a key factor in HOS compliance monitoring."
The federal HOS rule has no such stipulation, of course, and the carrier in question reasonably argued that as a federally-regulated company following the national rules, it is under no obligation to hand over these ‘supporting documents’ as required under Ontario’s provincial rule.
Ontario says differently, essentially telling the carrier and the Ontario Trucking Association that it will enforce its own rules on extra provincial carriers.
As Saul explains to Today’s Trucking in a follow-up interview, the MTO argues that the "lack of provincial jurisdiction on this issue would serve to undermine the quality and rigor of [Ontario’s] enforcement efforts and effectively establish a bias in favor of extra provincial carriers." And the big definitive line: "Ontario will continue to resist any challenge to Ontario’s jurisdiction over extra provincial undertakings."
There’s only one way to read that, says Saul. "Ontario is saying that if it uses the provincial HOS rules with its definition of supporting documents, it will get GPS records. If it uses the federal regulation, it won’t get them. And it wants them."
Because Ontario reflects the core logbook aspects of the federal rule almost exactly (time behind the wheel, off-duty rest time, sleeper berths, etc.) no one noticed the discrepancy between the two sets of rules before now, says Saul. "No one had any reason to exploit it as long as the province was essentially enforcing identical (parts of the) rule."
The case is currently before a justice of the peace in Ontario. Whether Ontario or the carrier get their way in the end will depend on how the judge (and likely future appeals court rulings) assign jurisdiction over the issue. And this is where things really heat up, says Saul.
The feds have authority over extra-provincial carriers’ HOS compliance because the rules are seen as regulating the way a federally regulated business is operated and managed, something provinces supposedly can’t interfere with. The courts, applying the Canada Labor Code in the past, have generally upheld that notion.
But Ontario, which like any other province has final say over its own highway safety affairs through the Ontario Traffic Act — speed limits, drinking and driving, and so on — now insists that HOS enforcement, including its arbitrary interpretation that "supporting documents" includes GPS records, is a bonafide safety issue.
It’s one thing for a court to rule that Ontario-based federal carriers must abide by provincial rules, not Ottawa’s, but what about fleets baseplated elsewhere that have terminals or stand-alone operations in Ontario?
"This is where the debate gets intense," says Saul. "Now the MTO comes along and says to an Alberta carrier ‘we want GPS records.’ Can the company say ‘no you can’t have them because a) I’m a federally regulated carrier and b) if I’m going to be subject to intra-provincial rules, then I’m governed by those of Alberta … which in this case has no definition of ‘supporting documents?’"
"You can see where this can go. You Balkanize the country," Saul continues. "There’s a breakdown where [carriers] going across the country are wondering what exactly they’re responsible for."
If Ontario wins, then, it can throw the entire administration of federal HOS rules into legal limbo, especially when coupled with vocational exemptions for certain carriers in the west.
"The system simply is not well managed in terms of compliance with meeting the National Safety Code," says Saul.
The competitive implications of Ontario’s case don’t only affect extra-provincial carriers in various territories. Ontario may argue that intra-provincial carriers are at a competitive disadvantage within the province if only they have to submit GPS records, but by applying the provision, MTO is distorting the playing field between those with GPS systems and those without — some of who, as it’s widely known, routinely manipulate paper logbooks.
Plus, there are no uniform recordkeeping standards among carriers who use GPS. In fact, many with satellite systems don’t even use them for HOS purposes.
And what to do about American truckers? Does anyone believe MTO will demand GPS records from stateside carriers?
One can see, then, why the Canadian Trucking Alliance and its provincial associations are pressing hard for Ottawa to get on with an electronic on-board recorder mandate, which you have to assume would cover GPS satellite records on a national scale.
Despite having so much at stake, seemingly absent from the debate is Transport Canada. Whether the feds would immediately appeal a decision favoring Ontario’s interpretation of the rules is likely considering the amount of political investment spent on HOS, but it’s not certain. We requested an interview with a Transport Canada official, but were told that there would be no comment while the case in Ontario is pending.
Saul says recent conversations with federal officials have not provided any clear answers, either. He claims that with regional fires still to put out in places like Alberta and B.C., Transport Canada seems too bogged down at this time to iron out new wrinkles in Ontario.
To mitigate carrier anxiety, Ontario has in the meantime agreed to limit its reach. It promises no roadside enforcement of GPS data (but as Saul points out, there’s nothing legally stopping truck cops from doing so); and until Jan. 1, 2010, auditors will only target GPS records from carriers whose violation rate exceeds 50 percent of their allowable threshold.
If the case is appealed by either party all the way to the Supreme Court of Canada, a resolution, Saul quips, is "unlikely in [his] lifetime."
But hopefully, he adds, cooler heads will prevail and stakeholders from both levels of government will be able to sit down and hammer out an agreement long before that.
So, then, can we not all just get along? If Obama was our prime minister, you know what he’d say: "Yes we can."
Unfortunately, real life isn’t that simple, even if at times it should be.
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