R. v. Columbia Dodge 1967 Ltd. (No. 2)
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Mr. Eaves [Eves]
for the Defence
Mr. Eaves, what I am going to do is I have made a decision. I am going to read it into the record and if you wish to have a copy of it, you can order a transcript, all right, because I haven't been able to prepare a proper written judgment.
This is a charge against Columbia Dodge of speed in a municipality on March 2nd, 1997, at Maple Ridge, B.C. This matter was commenced on December 11th, 1997. The Crown's case was entered by way of the usual three certificates. Mr. Eaves then gave evidence on behalf of the disputant and he was cross examined by the Crown, Ms. Brown, and the matter was adjourned to today's date for decision.
The defence that is put forward by the disputant in this case is one of due diligence. First of all, I would like to review the evidence in direct and in cross examination of Mr. Eaves. His evidence in direct was quite brief and to the point. He describes Columbia Dodge as a small business, of which is the Fixed Operations Manager. He described a Driver Responsibility Program and a Certificate of Responsibility that he personally developed. A copy of this document was entered as Exhibit number 4. He explained who the document is completed by and that there are consequences for employee drivers who contravene this certificate.
The certificate was developed by Mr. Eaves as a result of a decision made on January 22nd, 1997, by Her Worship Morrison. He submitted a copy of this judgment which was in favour of Columbia Dodge. However, I do not believe Mr. Eaves wants me to rely on it to decide this case, but rather to show that he took some of Her Worship Morrison's comments to heart, and as a result, further refined the procedure that was always in place at Columbia Dodge.
Her Worship Morrison makes several comments to the effect that the issue was not fully explored and in fact, says and I quote, "It may well be that this decision is entirely wrong, and I certainly would not base your company policy on this decision. It is not a well-reasoned, well-thought-out, well-researched decision."
Mr. Eaves was cross examined at some length by Ms. Brown. The evidence that came out in cross examination was as follows. Mr. Eaves manages a fleet or thirty-five vehicles for Columbia Dodge. Some of these vehicles are assigned to employees to deliver parts and some to other employees. The vehicle in question was assigned to a Mr. Butt, apparently the brother of the owner of Columbia Dodge. He is not a parts driver.
The Certificate of Responsibility, Exhibit number 4, was actually the one that was presented to Mr. Butt and signed by him. The question of other people driving the vehicle that was assigned to Mr. Butt was explored. Mr. Eaves described a company policy that clearly states that this is forbidden.
Mr. Eaves also described the company policy regarding punishment for employees who do not follow the rules set out in the Certificate of Responsibility. This could range from a verbal reprimand and written complaint placed on the employee's file, to dismissal. There is also a policy of having new employees attend a driver's training course at the Justice Institute, although Mr. Butt did not attend this course.
Mr. Eaves says that he has personally reviewed the I.C.B.C. Fleet Safety Manual in an effort to develop company policy that would be clear and understandable. Later on, during cross examination Mr. Eaves described some personal knowledge of Mr. Butt's driving habits and that Mr. Butt is a cautious driver who does not speed in Mr. Eaves' experience.
As a result of this violation ticket, Mr. Butt was given a verbal reprimand with his brother the owner of the company present. I cannot imagine that this was a pleasant experience, and I think it would act as some deterrent. Mr. Eaves said that the monetary penalties cannot be passed on to employees due to the Employment Standard laws.
When questioned by Ms. Brown regarding the nominated driver process, Mr. Eaves said that in his experience there is a high rate of rejection in this procedure by I.T.C.U. for whatever reason. Obviously, this is a route that the company has tried. Mr. Eaves described the nominated driver process as cumbersome and awkward. The company does, however, pass some penalty onto the employee, albeit not monetary. Employees' driving abstracts are reviewed prior to employment and whenever any problem arises. Mr. Butt did not produce one, but Mr. Eaves described why.
In the Crown 5 submission, Ms. Brown says that while Columbia Dodge policy is well-intended, it could be more consistently applied. She also submitted that the monitoring of drivers should be checked more regularly.
I have reviewed some case law in this area, specifically the case of Her Majesty the Queen v. Tilden Car Rental Inc., a decision from Alberta. This case describes the kind of policy and measures that should be put in place in order for the disputant to be able to rely on the defence of due diligence. I would like to quote some of the points made in that case in light of some of Ms. Brown's submissions. One of the Crown's points is that while Mr. Butt has signed a Certificate of Responsibility, what assurance do we have that others in his family would not drive the vehicle? The Court in Tilden said that, "A poor history would negate due diligence; an excellent record coupled with the exercisable power a parent or personal owner has owner the vehicle and family and friends might well establish due diligence."
In the Tilden case, no details of driving records were sought or known. Such was definitely not the case in Columbia Dodge. Their procedure is fairly clearly set out by Mr. Eaves. I would describe it as three-tiered.
First, before a person is employed by Columbia Dodge, the driving record is reviewed and a fairly detailed form, the Certificate of Responsibility, Exhibit number 4, with questions on it is discussed. There is a section that deals with what the company's expectations are regarding obeying the rules and regulations of the Motor Vehicle Act. The employee initials the statements.
The Crown made a point that the form states that, "The driver will not exceed the posted speed limit at any time." The charge in this case is that of speeding in a municipality, where no posted speed sign necessarily exists. While this may be a significant point to Ms. Brown, and perhaps myself, I doubt that it would mean much to the ordinary driver, and I do not find it to be a point that anything can turn on.
As Mr. Eaves has said, he designed this document himself and in my view he has done a pretty good job of it. I believe and find that he has done this in good faith, and in an honest attempt to make sure that employees of Columbia Dodge obey the law, not just to protect the company from further prosecution.
The second tier is the training that is given to the employees who will be driving the parts delivery vehicles, a job that necessitates them being on the road quite a bit. This training was not given to Mr. Butt, but Mr. Eaves gave reasons for that. Part of this tier is also the review of drivers' records when circumstances require.
The third tier is the penalty process. Although there was no monetary penalty, what Mr. Eaves has described is a penalty. In the worst case, employees are dismissed from the job. Mr. Eaves has explained why monetary penalties are not passed on. That is due to the prevailing labour laws. He is also said that although he did not attempt the nominated driver process in this particular case, he has in the past and not found it to be very satisfactory. I should probably say at this point that I have found Mr. Eaves to be a credible witness who gave his evidence in a straight-forward manner.
I have reviewed one other case as well, R. v. Best Buy Car and Truck Rentals Ltd., a B.C. Provincial Court case decided on August 19th, 1997. This case reviewed the Tilden case as well. Best Buy properly pointed out that, "For the defendant to have exercised due diligence, the defendant must show on the balance of probabilities that it has done what a reasonable person would think would be necessary to require that a person not speed in a vehicle of a registered owner. This is a high standard, but not an impossible one.
The question that I must ask myself is what else should a reasonable person or company do, aside from what Columbia Dodge has done. Except for passing the monetary penalty along, or proceeding with the nominated driver process, I honestly cannot think of anything. Mr. Eaves has explained to my finding satisfactorily why this is not done. In this case, I find that Columbia Dodge has met the test of due diligence, and I dismiss this charge.