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Opinion: The pitfalls of double logs in an ELD world

Posted: September 30, 2019 by Alan S. Cofman

Electronic logging devices (ELDs) are not yet mandatory in Canada, but many operators have attempted to stay ahead of the curve by implementing them. One issue that may arise in the conversion process, however, is the problem of “double logs”.

To prevent fraudulent recordkeeping, there has been a longstanding rule that drivers may not keep two copies of their daily logs. Section 190(5) of the Ontario Highway Traffic Act says: “No driver shall make or have more than one daily log that records the same time period ….”  The laws of other provinces are similar.

But I know of at least one instance in southwestern Ontario in which an operator was charged because a driver had completed an electronic log as well as a paper backup for his own peace of mind.

The paper logs and the electronic logs matched perfectly. Supporting documentation was forwarded to the operator, but not the paper logs.

Despite the driver’s honesty and candor with Ontario Ministry of Transportation (MTO) officers, the company was charged under Section 190(6) of the Ontario Act for permitting a person to drive other than in accordance with the applicable rules and regulations. In effect, the company was charged with permitting its driver to keep double logs. Following the court’s disclosure process, the MTO’s prosecutor was no more sympathetic, steadfastly refusing to even negotiate a plea arrangement.

The law itself is a bit unclear. It seems to allow someone to make a copy of an electronic log – either by printing it out or making a handwritten copy. However, it is silent on the reverse situation, in which a paper copy is prepared prior to, or along with, the electronic record.

Section 21(3) of the Hours of Service Regulation says, “If a driver prints a daily log from the computer or prepares a handwritten daily log from the information stored in the computer, he or she shall date and sign each page, attesting to the accuracy of the information recorded on it.” Pursuant to section 24(1), the paper log and the supporting documents should be forwarded to the operator within 20 days. Thus, duplicate copies of electronic records can be made, so long as they are signed and submitted to the operator in a timely way. If they were not dated, signed, or submitted to the operator, the driver would technically be breaching his obligations.

Whether electronic logs can be produced from handwritten notes or logs is less clear. However, I would suggest electronic and handwritten recordkeeping that occurs at the same time should be permitted.

It’s a shame that the operator in this case pleaded guilty only to avoid the costs and trouble of fighting a trial, so there is no jurisprudence on the point.

Drivers can protect themselves by only submitting electronic logging information once they have moved over to ELDs, or by signing and dating any copies and sending them to their operators in a timely way, together with all supporting documentation.

Operators can also partially insulate themselves from this “double log” problem in their rollout of ELDs by addressing the issue in the implementation protocols. Even in a situation like the one faced in southwestern Ontario, an operator may be able to run a “due diligence” defence, showing that it had taken reasonable steps to avoid a technical breach. In most instances, this will likely be in the form of a rule that paper should be done away with altogether.

— Alan S. Cofman is a partner 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.

 

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