REASONS FOR DECISION OF THE TORONTO LICENSING TRIBUNAL

Transcription

1 REASONS FOR DECISION OF THE TORONTO LICENSING TRIBUNAL Date f Hearing: Nvember 9, 2017 Panel: Mira Calderwd, Aly N. Alibhai and (Hedy) Anna Walsh, Members Re: Linsan Packiyanathan (Reprt N. 6824) Applicant fr the Renewal f Tw Truck Driver's Licence N. D Cunsel fr Municipal Licensing and Standards: Ms Penelpe Ma INTRODUCTION AND ISSUE In July 2016, Mr. Packiyanathan applied t Municipal Licensing and Standards (MLS) fr a Tw Truck Driver s Licence. As part f that applicatin, Mr. Packiyanathan submitted a prvincial Driver s Recrd Abstract, dated June 30, MLS issued Mr. Packiyanathan a Tw Truck Driver s Licence D in July As part f enfrcement activities, MLS subsequently btained Mr. Packiyanathan's threeyear driver s recrd directly frm the Ministry f Transprtatin s database. The infrmatin in this recrd differed significantly frm that in the recrd Mr. Packiyanathan had submitted in July The recrd which MLS btained cntained infrmatin abut cnvictins and suspensins that predated July 2016, yet were nt cntained in the recrd which Mr. Packiyanathan had submitted in July Mr. Packiyanathan paid the annual renewal fee t renew the licence in July 2017; the licence is currently valid. In August 2017, MLS advised Mr. Packiyanathan that it wuld nt renew his Tw Truck Driver s Licence fr the cming year. Mr. Packiyanathan sught a review f that decisin, and the Trnt Licensing Tribunal held a hearing n this matter n Nvember 9, After the hearing, the Tribunal delivered an ral decisin denying the renewal f Mr. Packiyanathan's Tw Truck Driver s licence. These are the written reasns fr that decisin. The issue befre the Tribunal was whether Mr. Packiyanathan's Tw Truck Driver s licence shuld be renewed, given his driving recrd, his recrd f cnvictins under ther statutes, and events that ccurred when he attended t btain the licence in July EVIDENCE Ms Olga Kusztelska, MLS Supervisr, testified n behalf f MLS. Ms Kusztelska and her staff prepared MLS Reprt N. 6824, which has 106 pages. The reprt relates t Mr. Packiyanathan's MLS histry and his applicatin fr the Tw Truck Driver s Licence. The Tribunal admitted the reprt in the hearing, and marked it as Exhibit 1. MLS submitted a further package f dcuments, with updating infrmatin abut Mr.

2 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 Packiyanathan's charges and cnvictins, and driving recrd. The Tribunal marked this material as Exhibit 2. Thrugh Ms Kusztelska, Ms Ma drew the Tribunal s attentin t the fllwing: The three year driver s search dcument which Mr. Packiyanathan submitted t MLS in July 2016 (Exhibit 1, page 10) dcumented ne cnvictin, fr failing t bey lane lights, frm April This dcument shwed zer demerit pints. The three year driver s abstract which MLS btained frm the Ministry f Transprtatin s database, als dated June 30, 2016 (Exhibit 1, pages 14-15) had a ntatin that a mandatry ignitin interlck was required. This abstract shwed tw demerit pints and several cnvictins. The cnvictins included: A cnvictin fr disbey legal sign, ffence date Nvember 14, 2012 A cnvictin fr speeding 109 KPH in an 80 KPH zne, ffence date Nvember 16, 2013 A Criminal Cde cnvictin fr driving with mre than 80 mg f alchl in the bld, ffence date July 7, 2014 An administrative driver s licence suspensin (ADLS) frm July 7 t Octber 5, 2014 A cnvictin fr speeding 65 KPH in a 50 KPH zne, ffence date Octber 29, 2014 A cnvictin fr unsafe mve, ffence date Nvember 29, 2014 A driver s licence suspensin frm Octber 22, 2015 t May 16, 2016, due t the Criminal Cde cnvictin. In additin t the abve cnvictins, Ms Kusztelska nted dcumentatin in Exhibit 1 shwing: Charges laid under the Highway Traffic Act n April 19, 2017, f insecure lad, imprper means f attachment and drive trailer with defects, all related t a tw truck Cnvictins n charges laid n July 4, 2015, f fail t surrender permit, clur cating bscuring interir and disbey sign, again, related t a tw truck A seat-belt related cnvictin frm Exhibit 2 cntained infrmatin updating Mr. Packiyanathan's recrd f charges and cnvictins, including: Charges laid n August 29, 2017, f perating a cmmercial vehicle with n valid Cmmercial Vehicle Operatr s Registratin (CVOR) and f verweight vehicle, related t a tw truck. These charges are currently befre the curts. A charge under the Trnt Municipal Cde frm April 2017 f drive unequipped tw truck. This charge is still befre the curts. Charges under the Trnt Municipal Cde laid n Nvember 1, 2016, related t driving an unequipped tw truck, perating a tw truck nt free f mechanical defects, and tw truck lighting and audible signal issues, 2

3 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 when perating the truck in reverse. These charges are still befre the Curts. Charges laid in July 2017 under a Markham by-law related t tw truck infractins. These charges are still befre the curts. Exhibit 1 als cntained infrmatin abut Mr. Packiyanathan's cnvictins under ther statutes. These included: Three cnvictins (Octber 2015, April 2014, July 2012) under the Liqur Licence Act fr Liqur Illegal Place A cnvictin under the Cmpulsry Autmbile Insurance Act fr fail t have insurance card, ffence date July 4, 2015 A cnvictin under the Frest Fires Preventin Act fr start fire in a place ther than stve r installatin, ffence date July 13, 2012 A cnvictin under the Trespass t Prperty Act fr Engage in Prhibited Activity, ffence date July 18, Exhibit 2 cntained an updated Driver Recrd abstract, dated Nvember 8, In additin t charges and cnvictins already nted, it shwed a cnvictin n the disbey legal sign charge laid n July 4, Ms Kusztelska nted that the fine f $1,560 levied upn the 2014 ver 80 cnvictin remains unpaid. Mr. Packiyanathan did nt crss-examine Ms Kusztelska, and her evidence was therefre unchallenged. Mr. Packiyanathan appeared n his wn behalf, withut legal representatin, and was affirmed. The Tribunal advised him f his right t have legal representatin and he chse t prceed withut such representatin. Mr. Packiyanathan s testimny included the fllwing infrmatin: He mved t Canada in He wrked with a twing cmpany in Markham. Its tw trucks were nt in gd cnditin. He incurred sme charges while driving tw trucks fr this cmpany, fr example, charges related t the lights nt wrking prperly. While his driver s licence was suspended, he wrked inside the garage fr this cmpany. Mr. Packiyanathan prvided sme details regarding the Liqur Licence Act ffences, suggesting that sme happened when he was a yunger man, in high schl. He said the charge under the Frest Fires Preventin Act als related t high schl activity. With respect t the July 2014 activity leading t the ver 80 charge, Mr. Packiyanathan stated that he drve a car (nt a tw truck) back frm Alberta. He went t a friend s huse in Ajax and they had sme drinks. He then drve t a nearby gas statin and gt pulled ver. 3

4 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 When he was charged with ver 80, he culd nt drive fr a while. After this, he drve a tw truck with an interlck device. The interlck device was remved abut six mnths ag. He n lnger drinks alchl. The August 2017 Highway Traffic Act charges f perating a cmmercial vehicle with n valid CVOR and f verweight vehicle relate t a tw truck he was driving fr a Markham cmpany, which did nt have the prper paperwrk. He bught a tw truck recently, which is financed. He has wrk waiting if he btains a licence. He has n incme and is living n his girlfriend s incme. He cannt make enugh t pay the tw truck payments by ding ther wrk, such as driving a car. He wants the Tribunal t give him a chance by issuing a licence with cnditins. He made ne mistake. He hid his driving recrd. He gave MLS nly the first page. The twing cmpany he was wrking fr printed the false driving recrd and gave it t him t submit t MLS. He did nt create this dcument but did submit it. In respnse t crss-examinatin, Mr. Packiyanathan agreed that his fficial driver s recrd des nt cntain a cnvictin fr fail t bey lane lights, while the ne he submitted t MLS des. SUBMISSIONS Ms Ma submitted, fr MLS, that the Tribunal shuld deny Mr. Packiyanathan a Tw Truck Driver s Licence. Ms Ma asserted that Mr. Packiyanathan's driving and criminal recrds raise significant cncerns abut public safety and his ability t perate a tw truck within the cnfines f the law. Further, his prviding an inaccurate driver s abstract t MLS raises cncerns abut his hnesty and integrity. Ms Ma nted that Mr. Packiyanathan acknwledged, regarding the Criminal Cde charge f perating a vehicle with mre than 80 mg f alchl in his bld, that he was drinking, did drive, and was caught. She cmmented that nly six mnths have passed since the remval f the ignitin interlck, s we may nt yet knw if Mr. Packiyanathan is able t refrain frm drinking and driving. The lder Liqur Licence Act cnvictins add t cncerns abut Mr. Packiyanathan's past drinking habits. All f this, Ms Ma submitted, leads t a public safety cncern in a persn seeking a municipal licence that invlves driving. Ms Ma highlighted Mr. Packiyanathan's charges and cnvictins under varius statutes, and thse under the Trnt Municipal Cde, questining his ability t perate a tw truck in prper mechanical cnditin and with all the prper paperwrk and insurance in place. Ms Ma submitted that this, t, raises a public safety cncern. 4

5 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 Ms Ma highlighted Mr. Packiyanathan's actins in submitting t MLS a driving recrd that, althugh he did nt create, he knew t be false. She nted that the applicatin fr a Tw Truck Driver s licence requires applicants t initial beside the sentence, The infrmatin set frth in this applicatin is true, accurate and in all material respects cmplete and that Mr. Packiyanathan did initial beside this statement. Ms Ma submitted that this behaviur shwed that Mr. Packiyanathan had nt carried n his business with hnesty and integrity. In his submissins, Mr. Packiyanathan repeated that he realizes he made a mistake in submitting the false driving recrd, but that he did this because he needed a jb. He asserted that 80% f the tickets he incurred related t tw trucks were their fault in that the cmpany supplied him with tw trucks that were nt in gd cnditin. Mr. Packiyanathan said that he is trying t mve n and d better, with his wn tw truck. Mr. Packiyanathan asked the Tribunal t give him a chance. ANALYSIS AND CONCLUSIONS The Tribunal denied Mr. Packiyanathan's applicatin fr a Tw Truck Driver s Licence. In reaching ur decisin, we applied the Tribunal s mandate, set ut in part in the Trnt Municipal Cde, B.(3)(c): Have regard fr the need t balance the prtectin f the public interest with the need fr licensees t make a livelihd. We heard nthing t cntradict Mr. Packiyanathan's statements that he needed t wrk as a tw truck driver t make a living and t pay ff the debt n the financed tw truck that he recently purchased. Mr. Packiyanathan established his need t make a livelihd. Turning t the ther part f the test, we cnsidered the prtectin f the public interest, if the Tribunal were t issue Mr. Packiyanathan a Tw Truck Driver s Licence. We cnsidered the grunds fr denial f a licence (r renewal), set ut in sectin C. f the Municipal Cde: Grunds fr denial f licence. (1) An applicant fr a licence, r fr the renewal f a licence, is, subject t the prvisins f this chapter, entitled t be issued the licence r renewal, except where: (a) The cnduct f the applicant affrds reasnable grunds fr belief that the applicant has nt carried n, r will nt carry n, his r her trade, business r ccupatin in accrdance with law and with integrity and hnesty; r (b) There are reasnable grunds fr belief that the carrying n f the trade, business r ccupatin by the applicant has resulted, r will result, in a breach f this chapter r any ther law; r 5

6 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 (e) The cnduct f the applicant r ther circumstances affrd reasnable grunds fr belief that the carrying n f the business by the applicant has infringed, r wuld infringe, the rights f ther members f the public, r has endangered, r wuld endanger, the health r safety f ther members f the public. We are f the view that all three grunds in the subsectins abve are established in this case. Grunds fr a belief that Mr. Packiyanathan has nt carried n his business in accrdance with the law and with integrity and hnesty are strngly apparent t us, in this case. Mr. Packiyanathan acknwledged that he knwingly prvided a falsified driver s abstract t MLS when he applied fr his current Tw Truck Driver s Licence. Ms Ma is crrect that, having dne s, Mr. Packiyanathan then initialled beside the sentence stating that his applicatin was true, accurate and cmplete. These facts raised very grave dubts fr us abut Mr. Packiyanathan's hnesty and integrity cnnected t his municipal licence. His explanatin that he did this because he needed a jb did nt, in ur view, excuse this behaviur. We nted, further, that when Ms Ma first asked abut the dcument, Mr. Packiyanathan appeared t say it was his wn recrd, but that he presented MLS with just the first page. Only after Ms Ma pinted ut that his wn recrd actually des nt have a cnvictin related t disbeying lane lights did Mr. Packiyanathan tell the whle stry, abut hw the cmpany he wrked fr prepared the dcument and tld him t take it t MLS. Again, this raised cncerns fr us abut Mr. Packiyanathan's hnesty and integrity related t the municipal licence. We nted that Mr. Packiyanathan has a number f cnvictins and pending charges under the Trnt Municipal Cde and the Highway Traffic Act, the mst recent being incurred at the end f August T his credit, Mr. Packiyanathan has nt incurred any new charges fr mving vilatins since the May 2015 date f the charge fr driving with ver 80 mg f alchl in his bld. That said, he des have very recent (August 2017) utstanding Highway Traffic Act charges related t cncerns abut a tw truck. S we cannt say that Mr. Packiyanathan has shwn that he is cmmitted t a pattern f imprvement. Further, we are aware that his prvincial driving licence was suspended fr apprximately eight mnths, then the vehicle was equipped with an ignitin interlck device, fr sme f the perid between May 2015 and present, which likely had the effect f helping Mr. Packiyanathan avid further infractins. We were trubled by Mr. Packiyanathan's statement that he made nly ne mistake (i.e., in presenting the falsified dcument t MLS). In fact, Mr. Packiyanathan's recrd includes a Criminal Cde cnvictin fr driving with mre than 80 mg f alchl in the bld. Mr. Packiyanathan did nt appear t have any insight int the fact that this incident als cnstituted a very grave mistake in any driver, and mre s in a persn seeking a municipal licence related t a driving activity. Nr did Mr. Packiyanathan take any respnsibility fr a variety f ther ffences when, fr example, he stated that the cnvictins fr perating a tw truck in disrepair, r lacking the apprpriate paperwrk were the fault f the tw truck cmpany. Mr. Packiyanathan was tearful when acknwledging his errr in presenting MLS with the fake driving recrd. Even s, he did nt appear particularly remrseful; rather, he appeared t be upset at the prspect f lsing his tw truck driver s licence. 6

7 Decisin f the Tribunal: Re: Linsan Packiyanathan Nvember 9, 2017 The mst cmpelling reasn fr denial f this licence lies in the grunds mentined in subsectin 1(e). As set ut abve, we have reasnable grunds fr belief that Mr. Packiyanathan's carrying n a tw truck business wuld infringe the rights f the public and wuld endanger public health and safety. We are nt f the view that it wuld be apprpriate t issue Mr. Packiyanathan a licence with cnditins. Perhaps cnditins culd have helped, had Mr. Packiyanathan's driving and Trnt Municipal Cde recrd been the nly cncerns. But, Mr. Packiyanathan's admissin f fluting the MLS licensing applicatin prcess, cupled with his lack f insight int hw such actins culd impact MLS s ability t regulate licensed activities s at t prtect residents f the city, raised cncerns fr us abut his ability t carry n the business with hnesty and integrity. We are aware f n cnditins which culd address this cncern. And even if we were, we wuld nte the many, many by-law infractins n Mr. Packiyanathan's recrd alng with utstanding by-law charges fr very recent cnduct, which wuld make us questin the likelihd f his cmplying with municipallyenfrced cnditins. Originally Signed Mira Calderwd, Chair Panel Members, Aly N. Alibhai and (Hedy) Anna Walsh cncurring Reference: Minute N. 317/17 Date Signed: _Nvember 23,