Crocker and Gingras win important case at the Ontario Court of Appeal

Published: Monday, 27 July 2009

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A recent Ontario Court of Appeal decision has significantly altered one of the favourite enforcement tools of the Ministry of Transportation ("MTO"). David Crocker and Liliane Gingras successfully argued that a commercial motor vehicle which may have critical defects as described in O.Reg.512/97 only allows the MTO to impound that vehicle. It does not provide the basis for a charge under subsection 84(1.1) of the Highway Traffic Act that a vehicle is in such a dangerous or unsafe condition as to endanger any person.

Randy Banning was driving a Quality Carriers Inc. tractor-trailer combination on July 20, 2006 on Highway 401. When he pulled into the inspection station, four of the air brakes on the trailer were found to be more than one quarter inch out of adjustment. The trailer, therefore, met the criteria for a critical defect under the Regulation.

The trailer was impounded by the MTO and both Mr. Banning and Quality Carriers Inc. were charged with operating an unsafe vehicle contrary to subsection 84(1) of the Act.

At trial, Justice of the Peace A. Renaud agreed with counsel for the defence that on the plain meaning of O.Reg.512/97 it relates only to the impound provisions of the Act contained in section 82.1. If a commercial motor vehicle has a critical defect as described in that regulation, it can be impounded as was done in this case.

Her Worship agreed with Mr. Crocker and Ms. Gingras as well, however, that the legislature did not intend to allow the presence of such a critical defect to be the basis of a charge that the commercial motor vehicle was in such a dangerous or unsafe condition as to endanger any person. As a result, she dismissed the charges against both the driver and Quality Carriers Inc.

The MTO appealed this decision to the Ontario Court of Justice. The Honourable Mr. Justice G. A. Pockele heard the appeal on June 19, 2008. He agreed with the decision of the Justice of the Peace and dismissed the appeal. The MTO appealed again to the Ontario Court of Appeal. The Court of Appeal dismissed the MTO appeal on June 26, 2009.

This was a significant decision by the Court of Appeal. In agreeing with the position taken by the Davis team who represented the defence, the Court required the MTO to prove that a commercial motor vehicle was actually in such an unsafe or dangerous condition as to endanger any person before it can achieve a conviction for a charge under subsection 84(1) of the Act. This decision will affect hundreds of pending cases in Ontario.

More detailed information on this decision can be read in the Transportation Law bulletin, July 2009 edition.