R. v. Autobahn Freight Lines Ltd., 2015 ONCJ 185

ONTARIO COURT OF JUSTICE CITATION: R. v. Autobahn Freight Lines Ltd. , 2015 ONCJ 185 DATE: 2015·03·30 COURT FILE No.: Ministry of Transportation 0860 999 00 1702345Z BETWEEN: HER MAJESTY THE QUEEN — AND — AUTOBAHN FREIGHT LINES LTD. Before Justice of the Peace H. DeBacker Heard on November 12, 2014 and February 3, 2015 Reasons for Judgment released on March 30, 2015 B. Fortune ..................................................................................... counsel for the prosecution A.

Debly ............................................................................................. counsel for the defendant JUSTICE OF THE PEACE DEBACKER: [ 1 ] Autobahn Freight Lines Ltd. stands charged Contrary to

Section 3(

b) of the Dangerous Goods Transportation Act which reads, “3. No person shall transport any dangerous goods in a vehicle on a highway unless, (

a) All applicable prescribed safety requirements are complied with; and (

b) The vehicle and all containers and packaging in it comply with all applicable prescribed safety standards and display all applicable prescribed safety marks.” Ontario, Dangerous Goods Transportation Act,

Schedule Corrosives as a Class 8 dangerous good. [ 2 ] In this matter, the prosecution proved each and every one of the essential elements. Autobahn Freight Lines Ltd. was the registered owner of both the tractor and trailer commercial vehicle combination inspected on August 24, 2013. Autobahn Freight Lines Ltd. was also the registered CVOR – commercial vehicle operator registration – holder. [ 3 ] The issue of this trial was: defence argued an exemption applied that would exonerate the defendant. There was a mix of Ontario, Canadian Federal and even United States law considered.

Facts and Law [ 4 ] Regulation 261, R.R.O 1990 of the [Ontario] Dangerous Goods Transportation Act adopts Canadian Federal Regulations.

Section 2 of that Ontario Regulation reads, “2. The safety requirements, safety standards and safety marks set out in the Federal Regulations are prescribed for the purpose of

Section 3 of the Act” The referencing of

Section 3 of the Dangerous Goods Transportation Act is directly applicable. [ 5 ] Ministry of Transportation inspector Clarke testified the commercial motor vehicle combination travelling eastbound on Highway 401 was stopped at the truck inspection station at the Town of Lakeshore on August 24, 2013.

He identified the driver, Matthew Holweg, and confirmed ownership of the commercial motor vehicle unit and CVOR through documents he observed on the date of the stop and entered certified documents in these proceedings. [ 6 ] Inspector Clarke testified Bill of Lading for the load being transported surrendered to him by the driver indicated there were dangerous goods within the trailer. It was not in dispute that the Bill of Lading indicated the shipment originated from “Toledo Plant” in Ohio, United States and was in transport to Bramalea Assembly Plant in Bramalea, Ontario.

Copy of the Bill of Lading was entered as Exhibit 5. Bill of Lading described load as, “756 packages UN2794, Batteries, wet, filled with acid, Class 8, PG III. Not subject to regulations per 49 CFR 173.159(

e) Weight of load 34,102 pounds.” The Bill of Lading itself read at the top, by way of an X, “placards corrosive 8, four corrosive No. 8 placards have been applied.” [ 7 ] Canadian Federal, Transportation of Dangerous Goods Act, 1992, define and set out, batteries, wet filled with acid, have UN number UN2794 and are designated as a Class 8, primary class, Dangerous Good. [ 8 ]

Part 4 of Canadian Federal, Transportation of Dangerous Goods Act, 1992, Entitled “Dangerous Goods Safety Marks” sets out the required labelling on both small and large means of containment. “4.15 Dangerous Goods Safety Marks on a Large Means of Containment: Placards and UN Numbers

(1) A placard and UN number must be displayed in accordance with the following table on a large means of containment containing dangerous goods, other than a ship or an aircraft, if the dangerous goods (

d) have a gross mass greater than 500 kg” The table then following set out in Column 2 placards required –for- primary class placard. “

(3) The placard must be displayed on each side and each end of a large means of containment, except that the placard may be displayed on (

b) The front of the truck, instead of on the leading end of a trailer unit of the truck.” [ 9 ] It was the inspector’s evidence and finding of this court that 34,102 pounds, the weight noted for the load of batteries on bill of lading, exceeds 500 kilograms, confirming the requirement for such external placards. [ 10 ] Inspector Clarke viewed Class 8 dangerous goods placards, as defined and regulated under

Part 4 for Class 8 Corrosives, displayed on three sides of the commercial motor vehicle combination namely, both sides of the trailer and rear of the trailer. Missing was a corrosive 8 placard at the front. There was neither a placard at the front of the truck, or tractor as it is sometimes referred to as nor, at the front of the trailer. This evidence was proof beyond a reasonable doubt of non-compliance with

Section 3 of the Dangerous Goods Transportation Act. [ 11 ]

Part 4 of Canadian Federal, Transportation of Dangerous Goods Act, 1992, Entitled “Dangerous Goods Safety Marks” sets out the requirements for labelling within a small means of containment. “4.10 Dangerous Goods Safety Marks on a Small Means of Containment: Labels

(1) One label must be displayed on a small means of containment for the primary class and one for each subsidiary class set out in column 3 of

Schedule 1 for each of the dangerous goods in transport in the small means of containment, [except that]” There were a number of exceptions that did not apply. Further, there were no subsidiary classes. [ 12 ] Inspector Clarke then viewed and made observations regarding the commodity inside the trailer. Photographs, the inspector took of what he observed, were entered as exhibits in these proceedings. It was the inspector’s evidence as well as the finding of this court, that several skids of batteries, wet filled with acid, was the commodity that was inside the trailer that date.

The inspector indicated there were no regulation dangerous goods’ labels on any of the skids of batteries save and except for one partial or portion of one label with part of the word “corrosive”. There were labels with part number and the word “battery” however, there were no required dangerous goods labels. The inspector’s photographs and evidence regarding several skids of batteries within the trailer absent the required dangerous goods corrosive Class 8 labelling, was proof beyond a reasonable doubt of non-compliance with

Section 3 of the Dangerous Goods Transportation Act. [ 13 ] The commercial motor vehicle unit operated by the corporate defendant was carrying a defined primary class 8 corrosive dangerous good, namely, batteries, wet filled with acid. The commercial motor vehicle unit failed to have displayed placards required for both large means of containment, regarding the exterior and small means of containment, regarding the shrink-wrapped skids of batteries, wet filled with acid, inside the trailer, each skid being a small means of containment. Exemptions or Exceptions [ 14 ]

Part 9 of Canadian Federal, Transportation of Dangerous Goods Act, 1992, Entitled “Road” define the relied upon exemption under 9.1 which reads, “9.1 Transporting Dangerous Goods from the United States into or through Canada

(1) Despite the requirements in

Part 2, Classification,

Part 3, Documentation, and

Part 4, Dangerous Goods Safety Marks, a person may handle or transport dangerous goods by road vehicle from a place in the United States to a place in Canada or from a place in the United States through Canada to a place outside Canada in accordance with the classification, marking, labelling, placarding and documentation requirements of 49 CFR, if” Subsections (a), (

b) and (

c) that follow indicate a number of requirements that were not subject in this trial. [ 15 ] Defence counsel presented the Court with what appeared to be an Electronic Code of US Federal Regulations referencing e-CFR, 49,

Part 173.159. [ 16 ] Defence relied upon a line on the Bill of Lading which read, “756 packages UN2794, Batteries, wet, filled with acid, Class 8, PG III. Not subject to regulations per 49 CFR 173.159(e)” Most specifically the line, “Not subject to regulations per 49 CFR 173.159(e)” [ 17 ] Review of 173.159(

e) reads, “When transported by highway or rail, electric storage batteries containing electrolyte or corrosive battery fluid are not subject to any other requirements of this subchapter , if all of the following are met:” [ 18 ] I have reviewed and considered at length 173.159 relied upon by defence. Subsection (

e) indicates batteries are not subject to any other requirements of this subchapter , if all of the following are met. Next the list of requirements was a simple less detailed list. [ 19 ] Firstly, it is crucially important to note that when applying 173.159(

e) itself, the reference is with respect to requirements of this subchapter . 173.159(

e) surely does not indicate if certain requirements are met, the items are not subject to any other requirements under the entire 49 CFR. There is a vast distinction. The words of 173.159(

e) must be applied precisely and not loosely.

[ 20 ] Likewise, the exemption within 9.1 of the Transportation of Dangerous Goods Act, 1992, indicates the exemption exists to Canadian federal Dangerous Goods Safety Marks, “a person may handle or transport dangerous goods by road vehicle….

In accordance with the classification, marking, labelling, placarding and documentation requirements of 49 CFR ” Given careful and precise application, this exemption means so long as the United States 49 CFR safety marks and placarding requirements are met, there is an exemption to Canadian safety marks and placarding. [ 21 ] Inspector Clark testified placarding is required within the United States for dangerous goods. He has viewed United States placards which sometimes look a little different but are the same in primary and secondary class designation.

He testified batteries, wet filled with acid are primary Class 8 Corrosive in both United States and Canada. The placard is a triangular shape in both Canada and United States. In both countries the bottom ½ of the placard is black with a white number 8. In Canada, The top ½ has a picture of beakers spilling onto a hand and block showing a burn occurring. United States placards have the word corrosive instead of the picture. That is the only difference. [ 22 ] Defence relied upon 173.159 which is a sub, sub, sub, sub, subsection, entitled: General Requirements for Shipments and Packagings of Title 49 CFR.

This entire subchapter referred to how items are to be packaged and braced. There was no reference to placarding of dangerous goods and safety markings within this subchapter. [ 23 ] The 173.159 document provided read like this: Title 49 next, Subtitle B next,

Chapter 1 next, Subchapter C next,

Part 173 next, Subpart E next, 173.159. It appears Title 49 CFR is the primary relevant United States law. 173.159 is a sixth generation subparagraph. [ 24 ] Now, let us work through and analyze. Taking the Bill of Lading reference at face value, 173.159(

e) requirements, of the subchapter 173.159, are not the 173.159 requirements for packaging and bracing to be used for transport of these batteries. [ 25 ] 173.159 sets out different methods for packaging and bracing corrosives of which batteries, wet filled with acid, are included. There are two methods for packaging and bracing corrosives transported by vehicle on land. One method is set out in subparagraph (

e) of 173.159. The second method, when (

e) does not apply, is set out in (a)(f)(

g) and (

h) which work in conjunction with each other and is the more onerous method over the (

e) method. Further, 173.159 sets out methods for packaging and bracing corrosives transported by rail and by air. That is the extent of the operation of the subchapter 173.159. It is a sixth generation subparagraph. [ 26 ] This Court finds that a line on the Bill of Lading which reads, “Not subject to regulations per 49 CFR 173.159(e)” Means the alternative method for packaging and bracing within 173.159 is the method required for packaging and bracing. [ 27 ] The fact that there are two methods for packaging and bracing, has absolutely no bearing or weight upon the defendant’s requirement for safety placarding of the dangerous good primary Class 8 commodity.

[ 28 ] 9.1 itself of Canadian Federal, Transportation of Dangerous Goods Act, 1992, indicates that despite its requirements one may transport dangerous goods in accordance with the marking and placarding requirements of 49 CFR. [ 29 ] 49 CFR marking and placarding requirements for dangerous goods was never presented to the court. Provided and relied upon by defence was only a subchapter that was neither applicable to marking and placarding nor relevant with respect to the 9.1 exemption. [ 30 ] Alternatively, or stated another way, perhaps defence relied upon the lack of placarding requirements within the pages it provided for Subpart 173.159 of CFR 49 as an exemption referred to in

Section 9.1 of Canadian Federal, Transportation of Dangerous Goods Act, 1992. [ 31 ] Again, 173.159(

e) exemption is with respect to the subchapter 173.159 only and not the entire 49 CFR requirements. Inspector Clark’s evidence and description of United States dangerous good placards along with the legislated Canadian 9.1 exemption, are both an acknowledgment, in law and reality, there exists a United States placarding 49 CFR requirement.

A sixth generation subchapter of 49 CFR which does not even refer to placarding and safety marks is not applicable to the 9.1 exemption. [ 32 ] As an illustration, the defence claim is akin to one asserting, they had their seatbelt on therefore the law of obeying speed limits does not apply; or their tires met the regulations therefore there is no need to stop for a red light. [ 33 ] Dangerous Goods is safety legislation. Defence assertion is against the safety spirit and intent of safety legislation. It makes no common sense and is not supported.

The inspector gave evidence corrosive batteries are a primary Class 8 dangerous good in both the United States and Canada and both countries require placarding.

Further evidence, from the Bill of Lading itself, was that four corrosive No. 8 placards are required in the United States, just as they are as well, in Canada. [ 34 ] Therefore, the defence has not established in any way an exemption or exception applied that would exonerate this defendant from complying with the [Ontario] Dangerous Goods Transportation Act and [Canadian] Transportation of Dangerous Goods Act and their regulations. [ 35 ] The prosecution has proven Autobahn Freight Lines Ltd. failed to display prescribed safety marks on both the large and small means on containment.

There will be a finding of guilt and conviction to register. Released: March 30, 2015 Signed: “Justice of the Peace H. DeBacker”