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Defend the driver, defend the operator

Posted: June 29, 2018 by Alan S. Cofman

All of Canada’s provinces require some form of safety fitness certificate, such as Ontario’s Commercial Vehicle Operator’s Registration (CVOR), and each province has some form of safety-rating scheme to monitor offences, collisions and maintenance. Consequences of a poor safety rating range from higher insurance premiums to the outright loss of the safety fitness certificate.

And such ratings can be affected by more than the CVOR points associated with an operator’s own traffic violations, including those relating to dangerous goods regulations.

Convictions against individual employees — even independent contractors who are not operating under their own registration — are also counted against the operator.

This is why an operator should maintain an open line of communication with drivers, so it can learn about any charges as soon as possible. (Ideally, the operator would actually require the prompt reports.)

It may even make sense to defend individual drivers or independent operators who face such charges. After all, if the driver pleads guilty, or plea bargains for a reduced fine, the CVOR points will still count against the operator.

The operator may want to pay for the person’s legal defence, particularly where both the operator and the driver were charged. It may even want to agree to cover any eventual fine that may be issued to the driver, to ensure they cooperate in the defence rather than negotiating a reduced fine.

Plead down charges

In many jurisdictions, the prosecution will be open to negotiating a plea bargain, including a reduced fine. However, generally speaking, the amount of the fine should not be the operator’s primary concern. Rather, it may make more sense to negotiate an amended charge that carries fewer CVOR points.

The services of a lawyer or a knowledgeable paralegal may be particularly valuable here.

Independent operator fines

Carriers often require independent operators to pay incurred fines, but that can discourage them from reporting such issues when they arise. Moreover, it encourages drivers to enter into plea bargains that result in lower fines, but may not address the operator’s exposure to higher CVOR points.

Some drivers, with no stomach for litigation, may imprudently resolve a charge simply to make it go away, without any regard to the negative consequence to the operator’s safety rating.

An operator’s decision to help employees or independent operators may be complicated where the business wants to make a “due diligence” defence, arguing that it did everything reasonably required by the legislation, when the driver wants to argue the contrary.

For example, the driver may want to argue that he was not properly trained to complete a required task. In this circumstance, the operator and its driver would become adverse in interest and they could not have a joint defence.

If this problem arises, the services of a lawyer or paralegal would be particularly valuable.

Assessing options

Generally speaking, it’s worthwhile to challenge a charge that carries CVOR points. Although the challenge may theoretically increase the potential fine above the ticket amount, prosecutors rarely seek more, if ever, unless the matter proceeds the whole way through trial.

Once the charge is challenged, a request can be made for full disclosure of the prosecution’s file. Knowledge of the file is often key. Once disclosure is made, the decision to plead “guilty” or “not guilty” can be based on a better assessment of the likelihood of a conviction.  Even if a conviction is likely, the disclosure material may assist in plea bargaining the charge down to something that carries fewer CVOR points or, at least, to a reduced fine.

— Alan S. Cofman is an associate with Fernandes Hearn LLP in Toronto, and can be reached at 416-203-9500. This article is intended for information purposes only and does not constitute legal advice.

  • an earlier version of this column has been edited to refer to CVOR points.
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