Stock Transportation Ltd.

DECISION

2017 NSUARB 175

M07432

NOVA SCOTIA UTILITY AND REVIEW BOARD

IN THE MATTER OF THE MOTOR CARRIER ACT

- and -

IN THE MATTER OF THE MOTOR VEHICLE TRANSPORT ACT

- and -

IN THE MATTER OF Motor Carrier License No. P00595 and Extra-Provincial Operating

License No. XP01078 issued to STOCK TRANSPORTATION LTD.

BEFORE:

Dawna J. Ring, Q.C., Member

APPLICANT:

STOCK TRANSPORTATION LIMITED

Michael P. Scott, LL.B

Jeremy P. Smith, LL.B

BOARD COUNSEL:

HEARING DATE:

S. Bruce Outhouse, Q.C.

Stacy O’Neill, LL.B

January 30 and February 1, 2017

ORAL CLOSING

SUBMISSIONS:

February 9, 2017

March 30, 2017

UNDERTAKINGS

DATE ADVISED

SUBMISSIONS

COMPLETE:

April 6, 2017

DECISION DATE:

DECISION:

November 14, 2017

The Board will hear from the parties to decide what, if

any, terms and conditions it may order for the current

school bus services. The remainder of the Licenses are

cancelled at dates and under interim terms to be

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decided. The Board retains jurisdiction to complete

these.

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TABLE OF CONTENTS

I

II

III

IV

V

SUMMARY ........................................................................................................... 5

ISSUES .............................................................................................................. 13

WITNESSES ...................................................................................................... 13

INDUSTRY......................................................................................................... 15

FACTS................................................................................................................ 22

1.

2.

3.

Stock and Knowledge .............................................................................. 22

Before Notice of Show Cause.................................................................. 27

Show Cause Proceeding ......................................................................... 49

(A)

(B)

(C)

(D)

(E)

(F)

(G)

(H)

(I)

Information Requests.................................................................... 49

May Montreal Trip ......................................................................... 53

Murray Corner............................................................................... 61

Newbridge Saint John Trip............................................................ 61

August 12-15 Trip.......................................................................... 63

Random Inspection ....................................................................... 65

Newbridge Contract ...................................................................... 66

October 20-23 Trip........................................................................ 71

November 1-5 Trip ........................................................................ 72

November 17-20 ........................................................................... 74

Other Movements.......................................................................... 74

(J)

(K)

4.

Timeline ................................................................................................... 77

VI

ARGUMENTS..................................................................................................... 82

1.

2.

Board Counsel......................................................................................... 83

Stock........................................................................................................ 87

VII

FINDINGS .......................................................................................................... 88

1. Scope of Motor Carrier Act ...................................................................... 88

(A)

(B)

(C)

Statute........................................................................................... 88

Arguments..................................................................................... 89

Board Finding................................................................................ 96

1)

2)

Summary............................................................................ 96

Analysis.............................................................................. 98

(a)

(b)

(c)

(d)

(e)

(f)

Interpretation Act ..................................................... 98

Plain Reading of Definition ...................................... 99

Overview of MC Act............................................... 100

Object .................................................................... 102

History ................................................................... 103

Occasion and Necessity ........................................ 103

Consequences....................................................... 105

1. Safety.............................................................. 106

2. Negative Impact on Transportation Services... 107

3. Administration.................................................. 109

(g)

3)

Conclusion........................................................................ 111

2.

Charge 1. Stock using its HMC to transport passengers from and/or to the

Province of Nova Scotia contrary to section 4 of the Motor Vehicle

Transport Act ......................................................................................... 112

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3.

4.

Charge 2. Stock using its HMC to transport students from Newbridge

Academy upon a highway within the Province of Nova Scotia, contrary to

s. 7(1) of the MC Act.............................................................................. 114

Charge 3. Stock using its HMC and its [school bus] Vehicle Unit No.

25486 to transport students from Newbridge Academy free of charge,

contrary to s. 22 of the MC Act .............................................................. 116

Charge 4. Stock’s failure to make the HMC available or use the HMC for

the purposes set out in the Licenses ..................................................... 118

Charge 5. Stock resisting or willfully obstructing an inspector in the

execution of his or her duty or his or her exercise of powers by not

cooperating and providing all requested information to the Motor Carrier

Division, Department of Transportation and Infrastructure Renewal,

contrary to s. 35(2) of the MC Act.......................................................... 125

5.

6.

(A)

(B)

Montreal Trip............................................................................... 126

Saint John Trip............................................................................ 129

7.

8.

9.

Charge 6. Stock’s failure to charge rates for charter services in conformity

with its Licenses contrary to s. 22 & 23(1) of the MC Act....................... 131

Charge 7. Stock leasing its HMC to Newbridge Academy for the transport

of students, contrary to s. 7(1) & s. 22 of the MC Act ............................ 133

Charge 8. Any other breaches which become known to the Board in the

proceedings ........................................................................................... 143

(A)

Stock Misled the Board ............................................................... 144

1)

2)

3)

IR Responses................................................................... 144

Not processing HMC movements like all others............... 150

Board Hearing .................................................................. 151

(B)

Stock joined two licenses together without authority to do so

contrary to s. 8(g) of the Board Public Passenger Motor Carrier Act

Regulations................................................................................. 152

Stock transported school officials from the Halifax Regional School

Board .......................................................................................... 154

In addition to the above breaches, Stock also used various vehicles

including its school and activity buses and HMC, and/or operated

school bus services, contrary to s. 7(1) of the MC Act. ............... 154

Stock demanded its drivers drive the HMC after they exceeded

their permitted hours of being on duty contrary to s. 12(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under

the MVT Act ................................................................................ 155

Stock requested its drivers falsify their Daily Log contrary to s. 86(2)

of the Commercial Vehicle Drivers Hours of Service Regulations

under the MVT Act ...................................................................... 168

(C)

(D)

(E)

(F)

VIII REMEDIES....................................................................................................... 169

IX CONCLUSION.................................................................................................. 180

SCHEDULE “A”........................................................................................................... 184

LEGISLATION.................................................................................................. 184

X

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I

SUMMARY

A Notice of Show Cause Hearing dated December 2, 2016, was issued to

[1]

Stock Transportation Limited (Stock); its Regional Manager, Troy Phinney; and Director

of Charter Services, Tina Coldwell. They were directed to attend before the Board to

show why Stock’s Motor Carrier License No. P00595 (MC License 595) and Extra-

Provincial Operating License No. XP01078 (XP License) and (collectively Licenses)

should not be amended, suspended, or cancelled for failure to operate and furnish

services in conformity with its Licenses, pursuant to the Motor Carrier Act, R.S.N.S.

1989, c. 292 (MC Act) and the Motor Vehicle Transport Act, R.S.C. 1985, c. 29 (3^rd

Supp.) (MVT Act).

[2]

Stock was represented by counsel, Michael Scott and Jeremy Smith. The

Show Cause proceedings were advanced by Board counsel, S. Bruce Outhouse, Q.C.

and Stacy O’Neill. The hearing occurred in the Board’s hearing room on January 30

and February 1, 2017. Oral arguments were provided on February 9, 2017.

Undertakings were filed and counsel advised the Board on April 6, 2017, that no further

submissions would be filed as a result.

[3]

The Notice of Show Cause included all documents known to the Board at

the time and begins as follows:

TAKE NOTICE Stock Transportation Ltd. (“Stock Transportation”), that Troy Phinney and

Tina Coldwell are required to attend before the Nova Scotia Utility and Review Board

(“Board”) to show why Motor Carrier License No. P00595 and Extra-Provincial Operating

License No. XP01078 (“Licenses”) should not be amended, suspended or cancelled for

failure to operate and furnish service in conformity with the Licenses, pursuant to the

Motor Carrier Act (“MC Act'), R.S.N.S. 1989, c. 292, the Motor Vehicle Transport Act,

R.S.C. 1985, c. 29 (3rd Supp.) (“Motor Vehicle Transport Act"), and all orders, rules,

regulations and schedules made thereunder, including:

1. using its Highway Motor Coach (“HMC”) to transport passengers from and/or

to the Province of Nova Scotia contrary to section 4 of the Motor Vehicle

Transport Act;

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2. using its HMC to transport students from Newbridge Academy upon a highway

within the Province of Nova Scotia, contrary to s. 7(1) of the MC Act,

3. using its HMC and its Vehicle Unit No. 25486 to transport students from

Newbridge Academy free of charge, contrary to s. 22 of the MC Act;

4. failure to make the HMC available or use the HMC for the purposes set out in

the Licenses;

5. resisting or willfully obstructing an inspector in the execution of his or her duty

or his or her exercise of powers by not cooperating and providing all requested

information to the Motor Carrier Division, Department of Transportation and

Infrastructure Renewal, contrary to s. 35(2) of the MC Act,

6. failure to charge rates for charter services in conformity with its Licenses

contrary to s. 22 & 23(1) of the MC Act;

7. leasing its HMC to Newbridge Academy for the transport of students, contrary

to s. 7(1) & s. 22 of the MC Act, and,

8. any other breaches which become known to the Board in the proceedings.

[Notice of Show Cause Hearing, December 2, 2016, p. 2]

[4]

The alleged breaches were also referred to as charges, therefore, either

term is used.

[5]

The Licenses at risk of being cancelled, suspended and/or amended are

those Stock acquired from Perry Rand Transportation Group Limited (Perry Rand) in

2013. Each provides authority for Stock to operate various services. Under both

Licenses, Stock is authorized to provide charter services to any organized group and

had contract services which have expired. Under MC License 595, Stock is also

authorized to provide school bus services for the Conseil Scolaire Acadien Provincial

(CSAP) and Annapolis Valley Regional School Board. Stock operates approximately

500 vehicles.

[6]

Stock also holds a Motor Carrier License No. P02714 (MC License 2714)

under which it operates school bus services for CSAP and the Halifax Regional School

Board (also HRSB). This License is not part of this Show Cause proceeding.

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[7]

The object of the legislation is to ensure there are safe, quality,

sustainable motor carrier transportation services for those in and/or coming to Nova

Scotia (the Industry). To achieve this, the Legislature regulates the Industry including

safety, licensing, inspection, compliance and enforcement.

[8]

Motor carriers operating public passenger vehicles on the highways are to

do so in accordance with the Acts, orders, rules, regulations, schedules and their

licenses (s. 22) (collectively also referred to as the “Acts”). The Board is given authority

to accomplish, administer and enforce the objects of the Act. Inspectors of the Motor

Carrier Division of the Department of Transportation and Infrastructure Renewal (MCD)

are authorized to inspect the vehicles and investigate to ensure compliance. No one is

to resist or willfully obstruct inspectors in the exercise of their duties (s. 35(2)).

[9]

Safety is the primary concern. These are the largest passenger vehicles

on the highways. An accident involving one of these vehicles can cause serious injury

or death to the passengers on board and to others travelling on the highway.

[10]

The two major components affecting safety are the driver and the vehicle.

Comprehensive regulations set specific hours of work and rest to ensure drivers of

these vehicles do not fall asleep at the wheel and/or are too tired to drive them safely.

Drivers are required to keep daily logs of their hours. Motor carriers are prohibited from

requesting their drivers to operate the vehicle beyond their permitted hours or to falsify

their logs.

[11]

The vehicles are subject to comprehensive inspections twice a year, in

addition to any random or roadside inspections. Major deficiencies must be repaired

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and the vehicle satisfactorily re-inspected before it may operate again. Minor repairs

are generally provided a date for completion.

[12]

Ultimately, safety is only achieved by motor carriers’ compliance. With

thousands of vehicle movements each year, it is impossible, and should be

unnecessary, for the inspectors to monitor each vehicle movement, in particular

considering the number of vehicle mechanical inspections required each year.

[13]

Sustainability of these services in Nova Scotia is achieved by the Board

regulating the licensing of the vehicles which mainly includes determining the terms of

service and setting rates. The former sets the parameters for the services similar to a

seller’s territory. Rates must be sufficient to cover the costs of providing quality safe

service and a small profit.

[14]

Stock’s representative at the Show Cause hearing was Mr. Phinney, who

became Regional Manager in 2009 and in charge of its offices from Alberta to the

Maritime Provinces. The Board also heard from the Director and Acting Manager of the

MCD; three previous or current Stock drivers; the CEO of Newbridge Academy

(Newbridge) and its Director of Varsity Hockey; and the Director of Sales for

Ambassstours.

[15]

After hearing from all witnesses and considering all evidence and

arguments, the Board finds Stock has repeatedly operated its public passenger

vehicles, including its school buses, as it wished and contrary to the Acts, rules,

regulations, its Licenses, and orders; even drivers’ safety regulations. It was cavalier

about these. As Mr. Phinney stated about the first May trip,” we did it anyway”.

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[16]

The Board also finds Stock repeatedly conducted itself in a manner to hide

its delinquent operations from being detected. First, while knowing the information,

Stock did not answer the questions of the Inspector and the Director of the MCD;

provided misleading and/or incomplete information to them; and in one instance, gave

false information to a customer to forward on to the MCD.

[17]

Second, for movements of some of its vehicles, Stock did not generate,

produce, or maintain any of Stock’s normal business records including not inputting the

movements into its computer programs or maintaining documentation including those

required to be kept with drivers’ daily logs to ensure compliance with those regulations.

[18]

would attend before the court and pay a fine, if ordered.

[19] Much of the information became known to the Board through these

When Stock’s delinquent conduct was detected and it was ticketed, Stock

proceedings and often only after most of the other witnesses had testified. However,

the Board finds Stock provided false, misleading and/or incomplete information to the

Board in this proceeding, including failing to provide full and accurate responses to

Information Requests (IRs).

[20]

The Board also finds Stock’s behavior before the Show Case Notice,

during the proceedings and at the hearing to be somewhat dismissive. As Board

Counsel noted, knowing that these Licenses were in jeopardy of being cancelled, it was

surprising how little information Mr. Phinney brought before the Board to address

Stock’s operations.

[21]

Other than Ms. Blades, Mr. Phinney was the last witness to testify. When

the preceding witnesses provided details of trips, itineraries, dates, groups (information

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Stock had failed to provide) he confirmed their evidence honestly. Otherwise, the Board

found his evidence to be at times evasive, incomplete, and/or appeared made up as the

proceedings advanced.

[22]

Furthermore, despite always being represented by legal counsel, Mr.

Phinney alleged he did not know the various rules, regulations (even safety ones), the

Acts, or Board Decisions (not even those relating to Stock), or he blamed others. In

summary, the Board finds he lacked credibility. Where evidence of Mr. Phinney and

any other witness conflicts, the Board accepts the evidence of the latter.

[23]

The Board finds Stock failed to operate in accordance with the Act, order,

rules, regulations and its Licenses as follows:

1.

used its HMC to transport passengers from and/or to the Province of Nova

Scotia contrary to section 4 of the MVT Act;

2.

used its HMC to transport students from Newbridge upon a highway within

the Province of Nova Scotia, contrary to s. 7(1) of the MC Act;

3.

used its HMC and its school bus Vehicle Unit No. 25486 to transport

students from Newbridge free of charge, contrary to s. 22 of the MC Act;

4.

failed to make the HMC available or use the HMC for the purposes set out

in the Licenses;

5.

resisted and willfully obstructed inspectors in the execution of their duties

and powers by not cooperating and providing all requested information to the

Motor Carrier Division, contrary to s. 35(2) of the MC Act,

6.

failed to charge rates for charter services in conformity with its Licenses

contrary to s. 22 & 23(1) of the MC Act; and

7.

leased its HMC with Newbridge for the transport of students, contrary to s.

7(1) & s. 22 of the MC Act,

[24]

The Board found the following breaches became known during the

proceedings:

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(a) used its school buses and/or operated school bus services contrary

to s. 7(1) of the MC Act;

(b) misled the Board including failing to provide full and accurate

responses to Information Requests contrary to Board Regulatory

Rules 16(2)(a);

(c) joined two licenses together without authority to do so contrary to s.

8(g) of the Board Public Passenger Motor Carrier Act Regulations

(d) transported school officials from the Halifax Regional School Board;

(e) demanded its drivers drive the HMC after they exceeded their

permitted hours of being on duty contrary to s. 12(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act; and

(f)

requested its drivers falsify their Daily Driver’s Logs contrary to s.

86(2) of the Commercial Vehicle Drivers Hours of Service

Regulations under the MVT Act.

[25]

The Board finds Stock’s conduct in the operation of its vehicles in Nova

Scotia, in particular its misleading conduct in relation to the MCD and the Board, to

exhibit a lack of fitness and willingness to provide safe, quality and proper services in

accordance with the Act, rules, regulations and orders, even the safety regulations.

[26]

[27]

The totality of these breaches is a significant concern for the Board.

In addition, Stock’s repeated demands that its drivers drive after their

regulated permitted 16 hours on duty is very disconcerting. It is contrary to the essential

safety regulations for operating its vehicles. Furthermore, by terminating the

employment of the two non-unionized employees who resisted these demands, the

Board finds as the regulator that Stock sent a message to its other employees that they

are to do as they are told or they could lose their job.

[28]

The Board is most concerned with the safety of the public including school

children.

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[29]

The Board gave careful consideration to the appropriate remedy and

whether to cancel these licenses in their entirety, including the school bus services

which represents 98% of Stock’s operations.

[30]

The Board asked counsel to specifically address this issue and the school

bus services in their closing arguments.

[31]

After considering all facts, arguments, the breaches, and s. 13 of the MC

Act, the Board decided it will not cancel Stock’s Licenses in their entirety, but will

provide Stock with an opportunity to present recommendations to address all of the

breaches and concerns set out in this Decision as they relate to its current school bus

services. The Board will hear from both counsel before deciding what, if any, terms and

conditions may be appropriate for Stock’s current school bus services to protect the

students. All other services on the Licenses are cancelled. The Board will also hear

from counsel on the dates of termination and what, if any, interim terms and conditions

should be ordered, other than for the overflow cruise ship services and use of the HMCs

which are cancelled immediately, as the cruise ship season for 2017 is finished. The

Board retains jurisdiction to complete these.

[32]

After Issues and Witnesses, the Board will first provide an overview of the

regulation of the Industry. This is done for two reasons; first, it is the basis for the

alleged breaches; and second, one of Mr. Phinney’s defences to the breaches and/or

arguments for the appropriate Remedies is that he did not know the laws and rules

applicable to Stock’s operations.

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II

ISSUES

The general issues are:

[33]

1) Did Stock fail to operate and furnish motor carrier services in conformity with its

Licenses, pursuant to the MC Act, MVT Act, and all orders, rules, regulations,

and schedules made thereunder?

2) If there was a failure to operate in conformity with the above, should the Board

amend, suspend, and/or cancel Stock’s Licenses?

[34]

Where the Board has not addressed facts or issues in this Decision, it is

because it did not find them to be material to its findings.

[35]

The parties have raised some legal issues in relation to the alleged

breaches and remedies. These will be addressed under scope of the MC Act and/or

specific charges.

III

WITNESSES

The following witnesses were called by Board counsel. All testified under

[36]

subpoena except those with the MCD.

[37]

Natalie Aisthorpe was the Director of the MCD from June 3, 2009, to

October 18, 2016.

[38]

John Penney worked with the MCD for 21 years and was its Chief

Inspector from 2009 until October 18, 2016, when he became the Acting Manager.

[39]

Trevor MacEachern is the CEO of Newbridge Academy (Newbridge). It is

a private sport school. At the relevant times to this proceeding, Newbridge rented

space at the Sackville Sports Stadium (Sackville) for grades junior primary to grade five;

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and at the East Hants Sportsplex (East Hants) for grades six to 12, as both had ice

surfaces. Newbridge owned four 15-passenger vans and one 45-passenger bus.

[40]

Patrick Flynn is the Director of the Varsity Hockey Programs at

Newbridge.

[41]

Sean Buckland is the Director of Sales for Ambassatours, and works with

Murphy’s on the Water, both related to Absolute Charters Inc. (Ambassatours or

Absolute). He worked for Absolute for nine years and was in his current role for the last

two. In this capacity, he charters public passenger vehicles to service cruise ships.

[42]

Kelly Bishop was a spare driver with Stock commencing February 1, 2016.

She had been a driver for three years in Saskatchewan and is trained on all vehicle

types operated by Stock, including its mini-buses, buses for special needs children, all

three school buses, and HMCs. As a spare driver with Stock, Ms. Bishop did not have a

specific run, however, most weeks, she worked five days a week. At the time of the

hearing, she was a part-time driver with Ambassatours and also operated her own

courier company.

[43]

Donald Andrew LePage worked as a spare driver with Stock beginning in

November 2015. He mainly drove school buses, but also did work on the HMC. As a

spare driver he would attend at Stock’s office at 5 o’clock in the morning to be assigned

a school run after which he could be asked to do a portion of another run. If covering

for someone sick or on leave he could do the same school run for three or four weeks.

[44]

Mr. Phinney has been in the transportation business his whole life and in

the busing business since 2009.

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[45]

Stock called Carla Blades as its witness. Ms. Blades had worked for

Stock as a school bus driver for five and one-half years. She has also done charter

services. Ms. Blades held other positions in the past, including doing vehicle

inspections and part-time dispatcher.

IV

INDUSTRY

For more than 100 years, buses (now public passenger vehicles) have

[46]

been regulated in Nova Scotia. When the trucking industry was deregulated in Nova

Scotia in 1994 and the bus industry in other provinces, the Legislature did not do so for

these vehicles.

[47]

This overview relates to those that are in the business of carrying people

on the highways and providing public passenger transportation, like Stock and the other

licensed motor carriers in the Province. It does not address an individual who privately

owns one of these vehicles and uses it as a trailer.

[48]

In numerous decisions the Board has noted the importance of these

services to the public. These include the line-run services (regular route) and tourism

as noted below:

[16]

The public’s interest in the Industry includes the important line-run services used

to transport people, many on limited incomes, to medical appointments, school, work,

and to visit loved ones and friends. It also provides parcel express services, important to

individuals, as well as rural businesses and health services. The public’s interest in

charter transportation services includes the tourism industry, which is significant to Nova

Scotia’s economy. The Ivany Report (“The Report of the Nova Scotia Commission on

Building Our New Economy, February 2014”) stated at p.19, amongst other references,

the following:

Geographic and economic realities dictate that Nova Scotia’s rural

communities, like rural areas everywhere, will continue to rely heavily on

sectors like tourism, forestry, fisheries and agriculture, and on production

from renewable and non-renewable natural resources.

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[17]

Consequently, on a macro level the services are important to everyone in the

Province and, on a micro level, are important to those either utilizing the services

personally, or those operating ancillary businesses serving tourists.

[Motor Carrier Industry (Re), 2015 NSUARB 33]

[49]

Nova Scotia has a relatively small population scattered throughout the

Province, except in the Halifax and Sydney areas. Capital costs for the Industry are

high. For example, a highway motor coach costs in excess of $500,000 per vehicle.

Unlike some other provinces, motor carriers investing in the Industry in Nova Scotia are

not provided with grants, subsidies, and/or rebates to assist them in providing these

services, except those operating under rural community transportation programs.

[50]

To ensure there are safe, quality and sustainable motor carrier

transportation services in the Province, the MC Act regulates most aspects of the

Industry, in particular, safety, licensing, inspection of vehicles, compliance and

enforcement.

[51]

Under the Federal Government Motor Vehicle Transport Act, a person

wanting to have authority to operate extra-provincial transportation services must

receive a license under the same licensing regime that exists in the Province.

Therefore, the MC Act also applies to licenses under the MVT Act ss. 5 and 6.

[52]

No motor carrier is permitted to operate these vehicles without a license or

to operate them not in accordance with the license. Section 7 of the Act reads:

License and compliance required

7

(1)

Except as herein provided, no person, either as principal or by an agent

or employee, shall operate a public passenger vehicle upon a highway within the

Province

(a) without holding a license issued by the Board allowing the vehicle to be so

operated; or

(b) in a manner, at a place or for a purpose that is not authorized by the terms of

his license.

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(2)

No motor carrier shall operate a public passenger vehicle under the

license issued to him other than a public passenger vehicle designated in such license.

[53]

[54]

Section 4 of the MVT Act states the same:

Operation without licence prohibited

4

Where in any province a licence is, by the law of the province, required for the

operation of a local bus undertaking, no person shall operate an extra-provincial bus

undertaking in that province except under and in accordance with a licence issued under

the authority of this Act.

A person must operate in accordance with the Acts, orders, rules,

regulations, schedules, and its license; s.7 and 22. Failure to do so constitutes

sufficient cause for remedies including cancellation. Section 22 reads:

Failure to comply

22

A motor carrier shall operate and furnish service in conformity with the license

issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

[55]

This language is restated on the front page of every license and

references the applicable statute. For the MC Licenses, it reads:

Stock Transportation Ltd.

51 Frazee Ave

Dartmouth, NS B3B 1Z4

All services shall be furnished in accordance with this License, the Motor Carrier Act and

Regulations.

[Exhibit, S-1 to S-4]

[56]

Immediately following the above, the Licenses reference the failure to

operate accordingly:

Failure to operate in accordance with this license, the Act and Regulations shall be good

and sufficient cause for the Board to amend, suspend or cancel this License in addition to

any prosecution.

[Exhibit, S-1 to S-4]

[57]

Safety is paramount. These are the largest passenger vehicles on the

highway. The school bus may carry up to 76 students. A highway motor coach may

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carry 58 adults. Articulated coaches are larger. Generally, these vehicles do not have

seatbelts. An accident with one of them can cause serious injury or death to those

travelling in them as well as any others it hits travelling on the highway, such as a family

in a small car.

[58]

In addition to drivers having the proper license to operate the vehicle,

there are both federal and provincial comprehensive regulations setting the maximum

number of hours drivers are permitted to be on duty, drive the vehicle, and minimum

rest periods per day and per work cycles.

[59]

Under the MVT Act, are the Commercial Vehicle Drivers Hours of Service

Regulations (Drivers Regulations). For transportation solely within the Province, the

Motor Vehicle Act R.S., c. 293, s. 1., applies to the MC Act pursuant to s. 4. Under the

Motor Vehicle Act are the Commercial Vehicle Drivers’ Hours of Service Regulations

(Nova Scotia Regulations). Both of these Regulations are similar in nature, but not

identical.

[60]

It is the Drivers Regulations under the MVT Act that are applicable in this

case and, therefore, the following is a general review. Drivers are not permitted to

operate these vehicles after having been on duty for 14 hours (s. 12(2)), unless rotating

with other drivers, which extends it to 16 hours.

[61]

No one is permitted to request or allow a driver to operate one of the

vehicles beyond that time period. Drivers Regulation 12(2) reads:

Daily Driving and On-duty Time

12(2) No motor carrier shall request, require or allow a driver to drive and no driver shall

drive after the driver has accumulated 14 hours of on-duty time in a day.

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[62]

Drivers are required to keep daily logs noting each hour they are on duty,

driving, or resting, regardless of the reason for the movement. No motor carrier can

request, require or allow any person to enter inaccurate information into the daily log or

to falsify it (86(2)). The logs must be maintained by the motor carrier for six months,

along with supporting documentation (85(3)(b). The latter is defined as any document

to assess compliance with the regulations. In the Nova Scotia Regulations supporting

documents is defined as:

“supporting document” means a document or information that is recorded or stored by

any means and that is required by the director or an inspector to assess compliance with

these regulations, and includes fuel receipts, bills of lading, shipping documents and

accommodation receipts.

[63]

Drivers Regulations require the production of the daily log books,

supporting documents and other relevant records requested by an Inspector (99(1)):

99 (1) A motor carrier shall, during business hours, at the request of an inspector,

immediately make available for inspection at a place specified by the inspector daily logs,

supporting documents and other relevant records as well as any permit a driver may be

driving under or have been driving under during the period for which the inspector makes

the request for the documents.

[64]

The vehicles are thoroughly inspected twice a year. An Inspector can also

require the vehicle for a random or roadside check.

[65]

Pursuant to s. 34 of the MC Act, the Inspectors are authorized to enforce

the provisions of the Act and the Regulations pertaining to the conduct of the motor

carrier, take necessary measures to prevent the operation of a vehicle by the motor

carrier not complying with the terms and conditions of the Act, and any other duties

given by the Minister. A person may not resist or willfully obstruct an Inspector in the

execution of their duties or the exercise of their powers under this Act or Regulation (s.

35(2)).

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[66]

To ensure there is safe, quality, sustainable motor transportation services

in the Province, the MC Act directs the Board to license and administer the legislation to

achieve those goals.

[67]

In determining whether a person should receive and/or maintain their

license, quality and safety are paramount. The Board is to consider whether the motor

carrier has the fitness, willingness, and ability to provide quality permanent, and proper

service (s. 13(c)).

[68]

Sustainability is also an important component of the licensing provisions.

This is accomplished by the Board determining the area, the size, type of vehicles,

number of vehicles, and the type of service the motor carrier is permitted to do. Every

license is restricted by certain terms and conditions (s. 16). The service component is

like a seller’s territory.

[69]

If there are too many vehicles in an area there will not be sufficient

revenue generated to sustain the services. Consequently, the Act requires the Board to

determine whether licensing further vehicles in a particular area will cause an excess of

equipment. The Board is also to take into consideration whether the Applicant has

complied with its License, which also includes all Acts and Regulations (s. 13(a)).

[70]

The Board can also take into consideration public interest and any other

matter that is relevant. These are set out in s. 13, which reads as follows:

Factors Considered

13

Upon an application for a license for the operation of a public passenger vehicle

or for approval of the sale, assignment, lease or transfer of such a license, the Board may

take into consideration

(a) any objection to the application made by any person already providing

transport facilities whether by highway, water, air or rail, on the routes or between the

places which the applicant intends to serve, on the ground that suitable facilities are, or, if

Document: 259021

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the license were issued, would be in excess of requirements, or on the ground that any of

the conditions of any other license held by the applicant have not been complied with;

(b) the general effect on other transport service, and any public interest that may

be affected by the issue of the license or the granting of the approval;

(c) the quality and permanence of the service to be offered by the applicant and

the fitness, willingness and ability of the applicant to provide proper service;

(ca) the impact the issue of the license or the granting of the approval would

have on regular route public passenger service;

(d) any other matter that, in the opinion of the Board, is relevant or material to the

application.

[71]

The Board must also set rates (s. 27(1)(c)) that are sufficient to cover the

costs of providing the services and a small profit. Rates are generally the greater of the

number of kilometers travelled or time. Kilometers include those with passengers (live)

and those without (deadhead). The latter is from the company’s equipment point,

usually its place of business. The kilometers a vehicle travels to pick up a charter group

may be a significant number. Time is usually by hour during a one day charter and daily

for a multi-day trip. Charges that do not cover the costs of operating this service can be

predatory and affect the carriers, the Industry, and ultimately impact or reduce the

services to the public.

[72]

If a carrier wishes to operate the vehicles for services not on its license, it

can apply to the Board to amend its license to include them (s. 12), or apply for a trip

permit or temporary authority under s. 9.

[73]

To be given a license is a privilege and does not provide any perpetual

rights, s. 10(1).

[74]

The Board has been granted the power to do any act necessary and

advisable for the effective exercise of its power in the administration of the Act and

Regulations (s. 27(1)(e)) and powers to enforce compliance (s. 29).

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[75]

If a motor carrier fails to operate in accordance with the Act, it is

considered good and sufficient cause for the cancellation, amendment and/or

suspension of its Licenses (s. 22) as well as constituting an offence under the Act and

liable to a penalty on the first offence between $250 and $5,000 or any subsequent

offence between $500 and $5,000 (s. 37).

V

FACTS

As one of Stock’s arguments is that it did not know the laws and

[76]

regulations affecting its services and operations under the Act, the Board begins with

Stock’s knowledge and then reviews the facts from 2009 when Mr. Phinney became its

Regional Manager. The Board reviews the facts to the Notice of Show Cause and

those facts that became known during this proceeding. For the latter, some of the facts

and events are reviewed in this section, but many are noted under the specific alleged

breaches/charges in the Findings section. At the end of this section is a Timeline of the

pertinent events.

1.

Stock and Knowledge

[77]

Stock is the Canadian subsidiary of the National Express Company

(NEC), which is one of the largest bus companies in the world. It has revenues in

excess of one billion dollars per year. Mr. Phinney is the Regional Manager for Stock’s

offices for Alberta and Nova Scotia. Stock has approximately 1,600 employees and

1,300 vehicles in Canada, and in Nova Scotia approximately 600 employees and 500

vehicles. It is the largest motor carrier in Nova Scotia. Ninety-eight percent (98%) of its

work is school bus services.

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[78]

In closing arguments, Stock’s counsel (also Stock) acknowledged Stock is

a motor carrier in the business of transporting people in passenger vehicles for gain.

Witnesses had testified this was their understanding of Stock’s business, including Mr.

MacEachern (Transcript, pp. 102-103).

[79]

Although Mr. Phinney acknowledged Stock used legal counsel before the

Board including for its Licenses, transfer of Perrry Rand’s Licenses, prior 2015

Amendment Application and this Show Cause hearing, he stated he lacked knowledge

of the information pertinent to the operation of these vehicles and services as exhibited

by his testimony below.

[80]

Mr. Phinney “breezed over” the Motor Carrier Act and Regulations:

The Chair:

And have you had occasion to read the Motor Carrier Act and

Regulations when you first came here?

Mr. Phinney:

I breezed over it, yes.

[Transcript, February 1, 2017, p. 637]

[81]

Mr. Phinney stated he did not know drivers were on duty if not resting in a

sleeper berth until the August 2016 trip.

[82]

Mr. Phinney did not know about the “tagging” of licenses:

The Chair:

Do you know anything about tagging?

Mr. Phinney:

The Chair:

Pardon me?

Tagging of licences?

No.

Mr. Phinney:

[ibid, p. 646]

[83]

Mr. Phinney testified he had never heard of a temporary license:

Mr. Scott:

There was reference yesterday made by Ms. Aisthorpe that you could

have gotten some sort of temporary licence or something to deal with the

same issue that you were you trying to address with either the lease or

doing it by free. Before yesterday, have you ever heard of that?

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Mr. Phinney:

No, I have not.

[ibid, p. 615]

[84]

On re-examination, Board counsel introduced a Temporary Authority (TA)

Application submitted by Stock in 2015 to use its four HMCs for cruise ship services

[Exhibit S-21]. It was signed by Dwight Keeping, who is Stock’s Safety Manager in

Stock’s executive offices. Mr. Phinney testified he was not aware of the TA Application.

A letter from the Board dated September 28, 2015, denied the TA. Mr. Phinney stated

that was the first time he saw the letter.

[85]

Mr. Phinney held the erroneous views that a motor carrier would be

automatically granted authority on its license to service a contract awarded under a

public tender (Tender or Request for Proposal (RFP)), without a public hearing, and the

carrier could charge any amount of money, including zero. He was not told that by

anyone from the Board nor did he read it in a decision of the Board.

Mr. Outhouse: Now, I just want to ask you again, to be clear, and I know that you have

stated you felt that because this was a tender request, as it’s called here,

that you could bid to Newbridge whatever price you like; you could have

bid zero, you could have bid $10; you could have done whatever you

like?

Mr. Phinney:

That’s -- yes.

[ibid, p. 560]

Mr. Outhouse: Sorry; if there was an RFP you wouldn’t need a licence?

Mr. Phinney:

That if it was an RFP licence, that our licence would be granted under

the RFP. That’s what we were told during that time.

…

Mr. Outhouse: But you were never told that by the Board?

Mr. Phinney: No, sir.

Mr. Outhouse: And that never appeared in any decision of the Board.

Mr. Phinney: Again, I don’t even recall reading the decision by the Board, sir.

[ibid, pp. 632-633]

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[86]

Regarding the Notice of Hearing dated June 2, 2012, provided to the

Industry for the Board’s generic hearing regarding discounts, including contracts and

Tenders/RFPs, Mr. Phinney stated he did not see this. He suspects no one else at

Stock saw it either. He was not aware of the proceedings, nor did he read the Motor

Carrier Industry (Re), 2015 NSUARB 33 () (Discount Decision):

The Chair:

Okay. Are you aware that the Board issued decisions in relation to

discounts, and specifically contracts?

Mr. Phinney:

I am not aware, no.

[ibid, p. 639]

[87]

Stock alleged lacking knowledge about invoicing for the HMC charter

services, Mr. Phinney stated:

Mr. Scott:

Right. Was it your intention to charge for that?

Mr. Phinney:

We didn’t know -- that’s just our -- in our infancy, we didn’t know what

we’re doing so we just left it as no.

[ibid, p. 619]

Stock’s Undertaking from its Amendment Application, Exhibit S-6 in this proceeding,

showed numerous charter invoices. The Board notes invoicing does not differ by

vehicle, only the rate varies.

[88]

Mr. Phinney stated he did not know how much a HMC is worth:

Mr. Phinney:

I have no idea; [$]150,000.

[ibid, p. 577]

[89]

Regarding the Inspectors, without knowing their actual education

background, Mr. Phinney acknowledged they inspect the mechanical aspects of the

buses.

[90]

He does not regularly read the Board’s Decisions:

The Chair:

So do you regularly read any of the decisions of the Board on issues like

this?

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Mr. Phinney:

I would be embarrassed to say that I do. No, I don’t.

[ibid, p. 640]

[91]

Mr. Phinney did not recall reading the Decision of its Amendment

Application, Stock Decision 2016 NSUARB 16:

Mr. Outhouse: And with respect to that application, you said that you attended the

hearing.

Mr. Phinney:

Mr. Outhouse: And you read the decision?

Mr. Phinney: I may have breezed over it, yes.

Yes, I did.

Mr. Outhouse: But there was a settlement agreement that hearing, wasn’t there,

between you and the other carrier with respect to the use of the vehicles.

Mr. Phinney:

I do believe -- you want to ---

Mr. Outhouse: I will.

…

Mr. Outhouse: I’m just going to read you a couple of passages from the decision and

see ---

Mr. Phinney:

Sure.

Mr. Outhouse: --- if you read them and are familiar with them.

This is about the settlement agreement, it says:

“The parties agreed to very strict use of the highway motor

coaches. Without the agreement, the Board would not have

granted any authorization for the use of these highway motor

coaches.” (As read)

Do you remember that statement?

Mr. Phinney:

…

No, I don’t.

Mr. Phinney:

Again, I don’t even recall reading the decision by the Board, sir.

Mr. Outhouse: Well, I’ll take you to another passage from it. After laying out the

restrictions on the licence in detail as we reviewed them earlier this

morning ---

Mr. Phinney:

Yeah.

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Mr. Outhouse: --- the Board referred to the rates that you were proposing; that is, your

company was proposing to charge for the service and it said this:

“After careful consideration, and with the limited evidence

provided by Stock in this case, the Board finds its proposed rates

in general are too low and potentially predatory.

Furthermore, the Board finds Stock failed to show the proposed

rates were fair and reasonable for the services it was providing.

The Board, therefore, sets the rates outlined in this decision.” (As

read)

So your proposed rates the Board found that they were too low, perhaps

even predatory, and set different rates; correct?

Mr. Phinney:

Mr. Outhouse: You don’t recall that.

The Board said this in its decision:

I don’t recall.

“As there is no need for these HMC vehicles in an unrestricted

charter market in Nova Scotia, and considering the negative

impact they would have on the industry, an expansion of the

HMC authority beyond the above restrictions would not be

permitted.” (As read)

Do you recall that?

Mr. Phinney:

No, sir. [Emphasis added]

[ibid, pp. 629-635]

[92]

The Board’s Order from the Stock Decision specifically referenced

contracts Stock had on its Licenses that were to be removed and had to proceed

through the public hearing process. These included contracts with Capital Health and

Public Works. When asked about this Order, Mr. Phinney stated he did not understand

it, but, once again, stated he ‘breezed through it’.

2.

Before Notice of Show Cause

[93]

When Mr. Phinney became Stock’s Regional Manager in 2009, the

economic downturn or the Great Recession, as described in the Ivany Report (The

Report on the Nova Scotia Commission on Building Our New Economy, February 2014)

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had just begun in 2008. This affected the motor carrier Industry in Nova Scotia. As

carriers requested permission from the Board to grant larger discounts and their year-

end financial statements showed little or no profit margins, the Board held a generic

hearing on discounts. The Notice was published in the Royal Gazette on March 7,

2014. The Board engaged an economist, Michael Gardner, of Gardner Pinfold

Consulting Inc., to address various issues, including the impact of discounting methods

on the sustainability of the Industry, Discount Decision at paras. 30 to 33, 34, 38 to 39.

[94]

When the initial hearing was adjourned, the Board issued an interim

Discount Decision, 2013 NSUARB 21 , on January 2, 2013. The Board

determined all contracts seeking to charge below the motor carrier’s licensed rates,

including those resulting from a Tender or RFP, had to advance through the MC Act

public hearing application process and subject to an analysis under s. 13. In the

interim, no one would be licensed to provide a discount of more than 20% below the

rates set by the Board, subject to any case specific evidence the Board found would

justify a variation.

[95]

On December 3, 2013, the Board approved the transfer of Perry Rand

Licenses to Stock. These are the two Licenses that are the subject of this Show Cause

proceeding.

[96]

The Discount Review hearings and submissions took place in 2014 with

the Board issuing its Decision on February 24, 2015. The Board amongst other things

set the following minimum rates for all HMCs:

Daily Rate Hourly Rate Kilometre Live

Deadhead

Layover

Rate

2015

2016

2017

$1,150

$1,200

$1,250

$115

$120

$125

$2.60

$2.70

$2.85

$2.35

$2.45

$2.55

$700

$725

$750

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Plus applicable taxes.

[97]

On April 10, 2015, Stock applied to the Board to amend these Licenses to,

amongst other things, change various charter rates, add four highway motor coaches to

its charter services and set HMC rates. The 2015 Applications were opposed by

virtually all licensed motor carriers in the Province operating HMCs and by another

operating vehicles with 36 seats or more.

[98]

The Board’s Decision of these Applications is Stock 2016 NSUARB 16. In

this section it is generally referred to as the Decision, otherwise it is referenced as the

Stock Decision.

[99]

The background information included that Stock had approximately 600

employees in Nova Scotia, 3,200 in Canada and 42,000 worldwide. Ninety-eight

percent (98%) of its services in Nova Scotia are school bus services. It operates

approximately 500 school buses, 13 mini-coaches, semi-coaches and activity buses

(paras. 16 and 17).

[100]

Stock is one of many companies operating around the world under the

ownership of the NEC. Stock’s sister company in the United States is Durham Schools.

An inter-company bulletin from NEC noted the four HMC vehicles were available. Mr.

Phinney said they were already owned by NEC; therefore, they were essentially paid

for. Consequently, Stock did not care if these HMCs made money (paras. 19-21).

[101]

The Decision summarizes Mr. Phinney’s testimony that, as part of Stock’s

responses to RFP, Stock did, and would in the future, include the HMCs as an added

benefit for School Boards (para. 22).

[102]

The Decision notes Mr. Phinney acknowledged Stock’s HMC could have a

significant negative impact on the other motor carriers (para. 31).

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[103]

At the close of Stock’s evidence, the parties reached an Agreement

regarding the use of the HMCs. Stock, therefore, requested its Applications be

amended to adopt the Agreement which restricted the use of its HMCs to solely

providing overflow cruise ship services under contract with a licensed motor carrier and

as the last vehicles to be used for such services, with a seating capacity of more than

36 seats. They could not be used for any other services, including, but not limited to,

schools, charters and tours (paras. 52-61).

[104]

This meant the vehicles could only be used under the MC License 595

and only within the Province. Consequently, Stock was no longer requesting that

portion of its XP License Amendment Application to authorize the use of the HMCs for

extra-provincial transportation movements.

[105]

As Stock’s representatives were unsure whether it was properly charging

its deadhead rates for charter services, it gave an Undertaking to provide a range of

charter invoices (Charter Undertaking).

[106]

Prior to Stock completing the Charter Undertakings, the Board issued its

Decision regarding deadhead charges on November 24, 2015, (Nova Scotia) Motor

Carrier Industry (Re), 2015 NSUARB 246 (Can LII) (Deadhead Decision). The Board

confirmed there would be no change to the requirement for motor carriers to charge

their licensed deadhead rates for all kilometers their vehicles travelled without

passengers from and to the carrier’s equipment point, before and after the

transportation services with its charter passengers.

[107]

After Stock substantially completed the Charter Undertaking, the Board

issued the Stock Decision on February 26, 2016. The Board amended many of Stock’s

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charter rates on both Licenses effective immediately, addressed its contract services,

and decided its MC License 595 would not be amended to add the HMCs and overflow

cruise ship services until there was full compliance with the Undertaking (paras. 8, 32,

and 163).

[108]

In the Decision, the Board permitted Stock’s amendment requests and

adopted the Agreement with modifications. The Board’s reasons included some

background information and an analysis of the evidence and Agreement. This included

information about sustainability of motor carrier services for the public, some of the

unique factors affecting it in Nova Scotia, and the MC Act achieving this through the

Board’s licensing of all aspects of the Industry including the motor carriers, the number

and types/sizes of vehicles, location and areas of services, and rates (74-83). For the

latter, it stated at para. 83 as follows:

[83]

Rates need to be sufficient to recover the cost of providing the service with a

profit and are essential for the repair and replacement of vehicles; important for safe,

quality services; sustainability; and permanence of the service; as noted in s.13(c) of the

MC Act. Insufficient rates can be predatory, result in an unhealthy Industry, a loss of

carriers, and, ultimately, a loss of services for the public, Deadhead Decision.

[109]

The Decision reviewed the Board’s recent Discount and Deadhead

Decisions. It also summarized the Board’s adoption of the expert opinions of Mr.

Gardner including that all forms of discounting are a zero-sum gain; that is, work

attained by one carrier through discounts was merely taking work from another motor

carrier; reduced the carriers’ revenues; and in the long term, would impact the

sustainability of the motor carriers and therefore, these transportation services to the

public (paras. 84-95).

[110]

The Stock Decision outlined the Board’s review of all evidence and s. 13

considerations and found that, but for the Agreement, Stock would not have been

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granted the amendments to its Licenses to use these four HMCs for numerous reasons.

One in particular was that there would be an excess of equipment in the Province. The

Board’s comments included the following:

[102] At the time the Agreement was reached between the parties, Stock had

presented all of its evidence to the Board and had closed its case. To fully appreciate

this Decision, it is important to note, the Board finds Stock failed to prove the provisions

of s.13 of the MC Act for its initial Applications seeking unrestricted use of these highway

motor coaches for all charters. In particular, Stock had failed to prove there was a need

for four (4) additional HMCs in the Province, and as such, these vehicles would result in

an excess of equipment if its initial proposal of unrestricted amendments to the licenses

were granted. …

[108] The restrictions agreed to by the parties are very important for the sustainability

of the licensed carriers in the Province and, therefore, are critical to the Board’s approval

of the use of these highway motor coaches for the reasons noted below.

[109] The sustainability of the existing licensed carriers who have already made the

investment of funds, time and energy into vehicles currently servicing the cruise ship

industry in the Province, is pivotal to this case. To achieve their sustainability, the Board

will remain diligent in its regulation of the types and number of vehicles, and their rates,

as the Industry moves forward from the prior poor economic years until their financial

health improves. This will require, for example, seeing an increase in the utilization of the

existing carrier’s licensed fleets and/or approving license expansion requests, before the

Board approves adding other vehicles into various market areas. This is particularly

important for those existing licensed carriers who have experienced the most significant

financial difficulties due to the negative effects of the various factors noted above,

including discounts and not charging deadhead rates. Many are smaller carriers and/or

in rural communities.

[110] May to November are the main months for the licensed carriers’ short tourism

season in Nova Scotia. As noted above, 30% of Coach’s annual revenues are generated

from September and October alone. This is when all carriers have to make their money

or “get it done”. Consequently, the licensed carriers require both the charter and cruise

ship work during those months to be sustainable.

[111] The most critical components of these agreed restrictions are that they are

designed not to impact this existing charter or cruise ship work which all licensed carriers

rely on.

[112] Stock is prohibited from doing any charter work for anyone, including for its

contracted School Boards, as they are currently using the existing licensed carriers for

their HMC needs.

[113] Stock is also not permitted to do any cruise ship work if any of the licensed

carriers have equipment available. Under this restriction, it includes vehicles beyond the

HMC to those with a seating capacity of 36 passengers or more, to address the other

vehicles of carriers, like Mac Tours, that are used by Absolute for cruise ship services.

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[111]

The Board emphasized how important strict adherence to these

restrictions were to the success of this type of model:

[119] Strict adherence to the above by Stock, and other carrier’s subcontracting its

services, will be very important to the success of this model agreed to by the carriers.

[112]

The Board noted the HMCs were not sustainable with the small amount of

overflow cruise ship work. The Board, therefore, noted that if Stock determined it no

longer wanted to provide the overflow cruise ship services with these restrictions, then

Stock could request an abandonment of its authority to operate its HMCs:

[122] Stock knows these highway motor coaches are not sustainable with their

authority in Nova Scotia alone, has agreed to these restrictive terms and, therefore, has

assumed the risks of embarking on this venture. As noted above, Stock has also used

these vehicles in New Brunswick.

[123] If Stock determines it no longer wants to provide the services with these

restrictions, then Stock may request the abandonment of its authority to operate these

highway motor coaches. As noted above, without these restrictions, s.13 of the Act is not

met, there is an excess of equipment, and the sustainability of the Industry is impacted.

[113]

Regarding Stock’s requests to amend various charter rates for other

vehicles, in general, the Board found the proposed rates were too low and could

negatively impact the Industry:

[144] Rates are a very important component of the Board’s regulation of the Industry.

As also referenced above, for any agreement reached between the parties, the Board

has to consider the broader implications on the Industry as a whole. The Board has

given the rates very careful consideration. In summary, based on the very limited

information from Stock, the Board finds its rates are too low and can negatively impact

the Industry.

[114]

[115]

The Board, therefore, set specific charter rates.

A separate section was devoted to contracts where the Board referenced

its Interim Discount Decision, eliminated Stock’s open contract authority and its

contracts that had expired. It further noted that all renewals or new contracts had to

proceed through the MC Act public hearing process and were subject to a s. 13

analysis.

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[116]

As Board counsel noted in its closing submission, all of the above was

summarized in the Conclusion to the Board’s Decision which reads:

[181] Stock initially applied to amend its Licenses to operate four highway motor

coaches for any type of charter, add HMC rates, and revise charter rates in its three other

vehicle classifications.

[182] The parties agreed to very strict use of the highway motor coaches. Without the

Agreement, the Board would not have granted any authorization for the use of these

highway motor coaches. The Board finds that in relation to its initial Applications, Stock

failed to prove the requirements of s.13, in particular, it failed to show there was an

unrestricted need for these vehicles.

[183] The goal of the MC Act is to provide safe, quality transportation services

throughout the Province. The Board finds that the Industry, coming from a recession and

discounting methods, remains unhealthy and under-revenued. There is an excess of

vehicles in the Province. Further unrestricted licensed vehicles for all charters would

have a negative impact on the licensed carriers, which in turn encumbers achieving the

objects of the MC Act.

[184] With the restrictions and modifications, the Board approves the addition of four

highway motor coaches and the deletion of the two 20 passenger mini-coaches and two

39 passenger deluxe semi-coaches on its MC License and the deletion of the latter two

vehicles and one 28 passenger mini-coach on its XP License. The highway motor

coaches are restricted to:

(a)

Use for cruise ship services only and may not be used for any other service,

including but not restricted to schools, charters and tours;

(b)

(c)

(d)

Between the months from May to November;

From any port in the Province;

Only under subcontract to another licensed carrier for the cruise ship work,

such that Stock may not contact and/or contract with a cruise ship company;

and

(e)

Used as a last resort, when there are no other vehicles available with a

seating capacity of 36 seats or greater, after compliance with the Notification

Chart below:

Operator of Last Resort for Cruise Ship Services

Charter Period

Notification Date

Subcontract Date

May 1 – June 30

July 1 – Aug. 31

Sept. 1 – Oct. 31

Nov. 1

Apr. 1

June 1

Aug. 1

Oct 1

Apr. 16

June 16

Aug. 16

Oct. 16

(f)

Notification must be:

(i)

Provided to all licensed carriers which operate vehicles with 36 seats

or greater;

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(ii)

The same dates must be provided to all applicable carriers; and

A copy of the notification and responses are to be filed with the MCD.

(iii)

[185] After careful consideration, and with the limited evidence provided by Stock in

this case, the Board finds its proposed rates, in general, are too low and potentially

predatory. Furthermore, the Board finds Stock failed to show the proposed rates were

fair and reasonable for the services it was providing. The Board, therefore, set the rates

as outlined in the Decision.

[186] With the various restrictions on the use of the HMCs, in particular to not operate

charters other than for cruise ship services as the last carrier, and their rates as set by

the Board, the Board finds s.13 is satisfied by enabling the servicing of cruise ship

passengers without negatively impacting the Motor Carrier Industry.

[187] The Board also finds the amount of work available to these highway motor

coaches in Nova Scotia alone, is not sufficient to sustain them. The Board notes Stock

has also used these vehicles in New Brunswick. However, if Stock determines it does

not wish to operate these vehicles under the terms set by this Decision, then Stock

should seek to abandon their use. As there is no need for these HMC vehicles in an

unrestricted charter market in Nova Scotia, and considering the negative impact they

would have on the Industry, an expansion of the HMC authority beyond the above

restrictions would not be permitted.

[188] The rates for Stock’s activity buses, semi-coaches and mini-coaches are

effective immediately. Upon Stock complying with its Undertaking and the Board’s

subsequent review, Stock’s Schedule E(1) in its Licenses shall remove the requisite mini-

coaches and semi-coaches and add four highway motor coaches pursuant to the service

authorization and rates as outlined in this Decision. The Board retains jurisdiction to

complete this and to correct and resolve the contract services in Stock’s Licenses.

[117]

On March 2, 2016, within four days of the Stock Decision and the Board

adopting Stock’s agreement and amendment requests to prohibit the use of its HMC for

school bus services, Stock contacted Ms. Aisthorpe and asked her to add the HMCs to

Stock’s Licenses for its contract with the Halifax Regional School Board.

[118]

Ms. Aisthorpe stated school bus services must be operated by school

buses D250 (or specific passenger cars). The Board notes the former have numerous

requirements such as being painted yellow, back door exit, “stop” arm. School buses

are authorized to provide services to and from school and for extra-curricular activities

sanctioned by the specific school board. Some school buses may also be licensed for

charter services.

Document: 259021

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[119]

A series of email communications between herself and Mr. Phinney

ensued. On March 3, 2016, Ms. Aisthorpe emailed Mr. Phinney confirming his inquiry

and stated Stock’s HMCs could only be used for cruise ship services and not HRSB:

Good afternoon Troy-

In relation to your inquiry yesterday afternoon and subsequent to my reviewing the recent

Board Decision in detail it would appear the [highway] motor coaches are restricted to

"use for cruise ship services only and may not be used for any other service, including

but not restricted to schools, charters and tours;". I note, additional restrictions also apply.

As such, the coaches cannot be operated for HRSB co or extra-curricular activities.

Please do not hesitate to contact me with related comments or questions; or, if additional

information is desired.

Best regards,

[Exhibit S-5, Tab 3, p. 59]

[120]

Ms. Aisthorpe confirmed she quoted from the Stock Decision. Regarding

her comment “I note, additional restrictions also apply.”, she was referencing the

Board’s further restrictions including that the HMCs could only provide backup cruise

ship services and outlined a process for determining its vehicles would be the last used.

Furthermore, these restrictions are noted in Stock’s MC License 595 [Exhibit S-1, p. 22].

[121]

The MC License 595 also requires notifications be filed with the MCD.

Ms. Aisthorpe testified while she was with the MCD, no such notifications for cruise

services were filed.

[122]

Ms. Aisthorpe received a responding email from Mr. Phinney stating the

use of the HMCs were part of Stock’s contract with HRSB, which meant its contract was

now void. It would also have an impact on Stock’s new contract with HRSB.

Document: 259021

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[123]

Ms. Aisthorpe responded to Mr. Phinney by email dated March 4, 2016,

stating school services only permit the use of D250 school buses (or specific passenger

cars). HMCs are not permitted to operate school bus services. Her email reads:

Troy-

Based on the Board Decision and restrictions indicated the coaches cannot be operated

for HRSB co or extra curricular activities; the contract terms and conditions for the RFP

submission should have been contingent upon receiving Board approval to operate.

The Decision explicitly states "Stock is prohibited from doing any charter work for anyone,

including for its contracted School Boards, as they are currently using the existing

licensed carriers for their HMC needs." (Board Decision, M06816 & M06817; p. 34, para

[112])

The current license for HRSB contract school service (i.e. to & from; and, co or extra-

curricular) would permit the use of authorized D250 school buses or any exempted

vehicles under Board regulation 51A (e.g. passenger car when operated in the capacity

of a school bus for the transportation of a pupil).

Please do not hesitate to contact me with related comments or questions; or, if additional

information is required.

Best regards,

Natalie

[ibid, p. 58]

[124]

Mr. Phinney’s responding email then requested the MCD add the HMCs to

its school bus License for the Halifax Regional School Board (MC License 2714). Ms.

Aisthorpe’s next email informed Mr. Phinney that could not be done. Rather, it required

an Amendment Application to Stock’s License. While Ms. Aisthorpe was at the MCD,

no subsequent Amendment Application was received.

[125]

Mr. Phinney’s emails constantly refer to RFPs and a carrier being able to

charge what it wants and to have these added to its Licenses without going through the

public hearing process. This was fully reviewed in the Board’s Interim Discount

Decision released January 21, 2013. All contracts including those under public tender

or RFPs had to advance through the MC Act’s public hearing process and are subject to

Document: 259021

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s. 13. This was again outlined in the Stock Decision under a separate section entitled

“Contracts” and specifically addressed the contract services on Stock’s Licenses noting

some were to be removed and others required applications to the Board for renewal. It

quoted from the Interim Discount Review Order. Furthermore, the Order issued to

Stock on March 23, 2016, stated its schedule of services required correction and

completions. Ms. Aisthorpe then told Stock this again in the above email exchange.

[126]

After Stock fully complied with the Charter Undertakings, authorization to

use the HMCs was granted by Order of the Board dated April 29, 2016, and added to

Schedule F on its MC License 595. The latter reads:

F(4) SPECIALTY IRREGULAR PUBLIC PASSENGER CHARTER SERVICE

The highway motor coaches are restricted to the transportation of cruise ship passengers

under subcontract to another licensed carrier in the Province of Nova Scotia from any

port between May to November as a last resort, when there are no other licensed

vehicles available with a seating capacity of 36 seats or greater, after compliance with the

notification chart below:

Charter Period

Notification Date

Subcontract Date

May 1 – June 30

July 1 – Aug. 31

Sept. 1 – Oct. 31

Nov. 1

Apr. 1

June 1

Aug. 1

Oct 1

Apr. 16

June 16

Aug. 16

Oct. 16

The highway motor coaches may not be used for any other services, including but not

limited to, for schools, school children, charters, and tours; and are further subject to the

terms and conditions of the License. [Emphasis added]

Effective this 29th day of April, 2016.

[Exhibit S-3, Schedule F]

[127]

The Charter Undertaking referenced Stock’s computer program. The

materials provided with this response from Ms. Coldwell included the Trip ID (client),

Invoice, Trip Name, Customer, Date, Itinerary, Start Time, End time, Vehicle Unit No.,

Document: 259021

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Depot, Fee, and Kilometers travelled for each movement of each vehicle providing

charter services for the specified period.

[128]

Ms. Aisthorpe stated that of the four HMCs, only one was presented for

inspection, stickered, and plated by the MCD. On May 18, 2016, the HMC was added

to Schedule E(4) of the MC License 595 as:

E(4) Total Plates: 1

P01235

56

Motor Coach

2005 MCI

2M93JMPAX6W063250

[ibid, Schedule E]

[129]

Ms. Aisthorpe testified that within a short time after the HMC was added to

Stock’s License, the MCD received information Stock had used it to provide extra-

provincial transportation services. She did not have any details of the movement. On

June 7, 2016, Inspector Parker requested information about its movements. On June

10, 2016, Ms. Aisthorpe sent a follow-up email to Mr. Phinney requesting detailed

information. Her email reads:

Good afternoon Troy-

This email is sent in follow-up to Inspector Parker's request on June 7, 2016 for

information in support of extra provincial transportation services provided by Stock

Transportation Ltd.

The Inspectors request was prompted by comments indicating the highway motor coach

(VIN# 2M93JMPAX6W063250) recently inspected/stickered travelled to Quebec; possibly

on two different occasions.

Please provide corresponding documentation for each extra provincial transportation

service provided.

Documentation should include, but is not limited to:

- Driver information (name, master#, contact phone#, etc.)

- Driver Hours of Service (HOS) Log Book (i.e. outside 160 kms of home base)

- Vehicle pre-trip sheets

- Trip itinerary & contact (or, general details outlining the nature of the transportation

offered)

- Invoice issued (if applicable).

Document: 259021

- 40 -

The information requested is intended to confirm vehicle use is in compliance with

approved license terms and conditions; relevant Motor Carrier Act Section 22 included

here for your reference:

Failure to comply

22 A motor carrier shall operate and furnish service in conformity with the license issued

to him and in conformity with this Act and all orders, rules, regulations and schedules

made hereunder, and the failure of a motor carrier so to conform shall, in addition to

constituting an offence against this Act, be good and sufficient cause for the suspension

or cancellation or both by the Board of the license issued to the motor carrier, or for the

suspension or cancellation by the Board of part of the license or of any authorization

issued to the motor carrier.

Similar requests for supporting documentation are routinely made by the Inspectors; as

accommodated by Motor Carrier Act Section 34(2). Excerpt included here for your

reference:

Inspector

34 (1) The Minister may appoint a person or persons in the public service to act as

inspector or inspectors under this Act.

(2) The inspector or inspectors shall enforce the provisions of this Act and the regulations

that pertain to the conduct of motor carriers and shall take all necessary measures under

this Act to prevent the operation of any motor carrier without such motor carrier having

first complied with the terms and provisions of this Act and the regulations, and shall

perform such other duties as the Minister may from time to time determine.

Please provide the requested information at latest by the end of the month, June 30,

2016.

Please do not hesitate to contact me with related comments or questions.

Best regards, [Emphasis added]

[Exhibit S-5, Tab 6, p. 71]

[130]

On the due date of June 30, 2016, Mr. Phinney replied as follows and

asked Ms. Aisthorpe for the specific dates of the trips as this might speed up the

process:

Thank you for the email Natalie. I am still gather [ing] the information requested. I wish

you could be more specific, do you have specific dates that you are looking for?

I assure you that any movement of our coach was provided at no charge to any

customer. If I could ask for an extension to next week I will provide what information we

have. In the meantime if there are specific dates? It might speed up the process.

I hope you can see to extend the time line.

Thanks again, [Emphasis added]

[ibid]

Document: 259021

- 41 -

[131]

On July 4, Ms. Aisthorpe responded, providing an extension to July 8,

2016, and further informed Mr. Phinney that “Details on any extra-provincial charter

tours are requested”.

[132]

information would be provided the following week due to personal circumstances.

[133] Ms. Aisthorpe never received any information from Mr. Phinney about

these trips before she left the MCD on October 18, 2016.

[134] As to Mr. Phinney’s comment in his June 30, 2016, email that the services

On July 8, Mr. Phinney sent an email apologizing for the delay and the

are at no charge to any customer, Ms. Aisthorpe testified that Stock’s HMCs are public

passenger vehicles and, therefore, are subject to the terms and conditions of their

Licenses, including rates:

Mr. Outhouse: Just turn to Mr. – you don't have to turn. On page 71, you'll see Mr.

Phinney's reply. And this is June 30th, the date he was to supply the

information, tells you he's still gathering it and wishes you could be more

specific what specific dates you were looking for.

And then he says this:

"I assure you that any movement of our coach was provided at no charge

to any customer." (As read)

He then asks for an extension of a week to provide the information. In

the meantime, he asks you if you've got any specific dates that might

speed up the process.

First of all, what's your -- what was your reaction to the free of -- "Was

provided at no charge to any customer"?

Ms. Aisthorpe: So in that context, the highway motor coach is a motor -- a public

passenger vehicle. It's P plated; it's fully regulated, so it would be subject

to the terms and approval of the licence that was granted.

So in this context, my email has been supportive and it requests by the

inspector for further information, so typically, that's provided in routine

course through industry inquiries as to operation of the vehicle.

Whether it was provided for free or not, the motor coach would be

subject to the licence terms, which include rates.

[Transcript, January 30, 2017, pp. 186-187]

Document: 259021

- 42 -

[135]

Ms. Aisthorpe and Mr. Penney testified the MCD has permitted carriers

once or twice a year to provide free services to legitimate charities, like the Canadian

Wish Foundation, where the drivers have donated their time. There is nothing in writing.

It is an enforcement practice. She noted some carriers obtain temporary authorities or

trip permits for their charitable work. Ms. Aisthorpe testified she had discussions with

Mr. Phinney about this as well as having an Outlook appointment to discuss it by

telephone further in July, which did not take place. She testified as follows:

Mr. Outhouse: Did you have any discussions with Mr. Phinney that you recall about

performing these services for free, or services for free generally?

Ms. Aisthorpe: Yes, I do recall we had discussions about performing work for free, and

the context of legitimate charitable work, so where carriers provide

transportation and/or drivers for -- in support of legitimate charities.

[Transcript, January 30, 2017, p. 216]

[136]

The MCD conducted a random inspection on Stock’s HMC August 18,

2016. The impetus for the inspection was a complaint to the Clerk of the Board (Clerk)

on August 16, 2016. Amongst the concerns were requests for drivers to exceed their

hours and potential safety issues with the vehicle regarding brakes and tires. (This was

later provided in an Incident Report prepared by Ms. Bishop and Mr. LePage dated

August 22, 2016 and filed with the MCD.)

[137]

Ms. Aisthorpe stated that during a random inspection, the MCD would

typically look at the steering, suspension and/or brakes. Consistent with past practice,

Ms. Aisthorpe contacted Mr. Phinney by telephone and confirming email requiring the

vehicle to be presented for inspection [Exhibit S-5, Tab 8, p.80].

[138]

In Mr. Phinney’s responding email, he stated the HMC is needed the next

day and it will be available for inspection on Friday. Ms. Aisthorpe testified that was not

satisfactory for safety reasons. If the allegations were founded and there were actual

Document: 259021

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imminent safety deficiencies, the risk of permitting its use could result in a failure of the

vehicle and subsequent injury. Further emails were exchanged.

[139]

The inspection was conducted at Parts for Trucks in Dartmouth on August

18, 2016, as it cannot be inspected at Stock’s facility. The Report [Exhibit S-5, Tab 9, p.

83] noted there were 15 major items that had to be repaired before the vehicle would be

permitted to operate again. Three deficiencies related to the brake system. The

emergency brake efficiency was at 48%, even though the air brake efficiency was at

87%. After a vehicle is repaired, a further inspection, including brake test is required.

Less major items were to be repaired by September 15, 2016.

[140]

On August 27, 2016, Ms. Aisthorpe received an email from Mary

Dempster, COO of Ambassatours, regarding Stock providing its HMC for its licensed

service for overflow cruise ship services, stating they keep calling Stock and do not get

a reply. It reads:

Hi Natalie

The last hearing was about Stock helping out (with 4 buses) and [the Board] gave them

OK as last call buses…..but we call and they don’t answer the request. Is this bus on the

road with Stock (its in their yard)?

[Exhibit S-5, Tab 10, p. 86]

The email attached an image of Stock’s HMC.

[141]

Ms. Aisthorpe testified she responded to Ms. Dempster’s email indicating

the status that one HMC had been inspected, plated, and was ready for use for overflow

cruise ship services.

[142]

On September 21, 2016, the MCD received a copy of Stock’s Response to

Newbridge’s Tender for its transportation needs. The Response is dated August 25,

2016, and provides Stock’s prices as well as its proposal to use two yellow school

Document: 259021

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buses for transporting students between the two sportsplexes used by Newbridge and

to use all four of its HMCs for the transportation of the school’s hockey teams. The

latter provides a schedule of each proposed hockey trip for the 2016/17 school year and

Stock’s charges. The relevant trips up to November 20, 2016, are:

Dates

Pick Up

Destination

Pricing

2016

September 17-18

September 24

East Hants Sportsplex Charlottetown/

Summerside, PE

2000

East Hants Sportsplex Amherst, NS

East Hants Sportsplex Hingham, MA

1200

4100

September 30-

October 2

October 13-15

October 12-16

October 20-23

October 28-30

October 27-30

November 3-5

November 10-13

November 17-20

East Hants Sportsplex Saint John, NB

East Hants Sportsplex Trois-Riviéres, QC

East Hants Sportsplex Toronto, ON

East Hants Sportsplex Pictou Co., NS

East Hants Sportsplex Boston, MA

East Hants Sportsplex Burlington, ON

East Hants Sportsplex Fredericton, NB

East Hants Sportsplex Moncton, NB

3000

6500

4000

2000

4000

3000

[143]

The MCD also obtained a copy of the other Tender Response Newbridge

received from a licensed motor carrier who had provided HMC services to Newbridge in

the previous school year 2015/16.

[144]

The HMC was repaired, re-inspected and permitted to operate again on

September 22, 2016.

[145]

Ms. Aisthorpe contacted Trevor MacEachern to obtain information about

the coach transportation services Newbridge had received for its scheduled hockey trips

Document: 259021

- 45 -

on September 17 and 24, 2016. She confirmed her request in an email dated

September 26, 2016, which reads:

Good afternoon Trevor-

Further to our recent discussion and by way of follow-up, please provide the Division

details (e.g. carrier name, itinerary, invoice, etc.) on the coach transportation services

required by the NewBridge Varsity Hockey team(s) on:

- September 17 - 18 from the East Hants Sportsplex to Charlottetown/Summerside, PE,

and

- September 24 from East Hants Sportsplex to Amherst, NS.

Please do not hesitate to contact me with related comments or questions.

Best regards,

[Exhibit S-5, Tab 13, p. 95]

[146]

On September 27, 2016, Mr. MacEachern stated Newbridge had used an

“activity bus” supplied by Stock as follows:

Hey Natalie,

With respect to your questions, with the late award of the tender and the start of school

we decided to cancel the weekend to PEI for September 17-18.

On September 24 and 25 Stock Transportation made available one of their activity buses,

unit number 25593, to transport our team to Amherst for the games. After speaking with

Stock this service was provided free of charge.

If you have any other questions, please do not hesitate to contact me.

Best regards, [Emphasis added]

[Exhibit S-5, Tab 13, p. 95]

[147]

Also on September 27, 2016, Ms. Aisthorpe received an email from

Inspector Adam Levings [Exhibit S-17] which noted the odometer readings for Stock’s

HMC. Ms. Aisthorpe testified the handwritten note on the email are her calculations of

the difference between the odometer readings of September 22 and 27, 2016, being

995.7 kilometers.

[148]

The MCD subsequently obtained Newbridge’s Facebook page.

It

contained an entry dated September 23, 2016, which referred to the PeeWee team

Document: 259021

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travelling to Saint John for the weekend after playing in Amherst. It included a picture of

the team boarding and on Stock’s HMC; not an activity bus.

[149]

Mr. Penney saw Stock’s Freightliner school bus Vehicle Unit No. 25486 at

East Hants Sportsplex on September 27, 2016. He conducted a routine roadside

inspection where he checked the driver’s documents and did a cursory walk around of

the vehicle for any defects. Documents could include the type of service being

provided, the customer, the number of passengers and general service questions. His

Inspection Report is Exhibit S-5, Tab 16.

[150]

The vehicle was plated SB-P00493 which is licensed to operate charter

services. The driver advised he was providing backup services for Newbridge as its

vehicle was out of service. Mr. Penney understood this meant Stock had been

providing the services since the vehicle broke down. The driver also advised the

services were being provided for free which Mr. Penney confirmed with Ms. Coldwell.

[151]

Mr. Penney provided the above information and documentation to Ms.

Aisthorpe and testified Stock was currently being investigated to determine what was

happening. He did not have any further involvement with Stock in 2016.

[152]

Upon receiving the documents, Ms. Aisthorpe reviewed the Report to

make sure the vehicle was licensed to do the charter services, and that it had no major

defects. She also reviewed the License and determined from the Licensed rates the

charge for this service (being the greater of the kilometers or time) was $601.80 per trip

[Exhibit S-5, p.109].

[153]

Due to the date stamp of September 21, 2016, on Stock’s Tender

Response, Ms. Aisthorpe believes the MCD may have received drafts of Stock’s

Document: 259021

- 47 -

Applications to amend both of its Licenses to add contract services for the

transportation of Newbridge students. The formal Applications were completed, signed

and received by the MCD on September 26, 2016 [Exhibit S-15 and Exhibit S-16].

[154]

When Ms. Aisthorpe sent the two Amendment Applications to the Clerk

she attached a Memo, dated September 27, 2016 [Exhibit S-15, p. 1], that included the

following:

• attaching Newbridge’s Facebook page postings, it appeared Stock is,

and has, provided services to Newbridge;

• based on inspection reports Stock’s HMC has travelled 10,741

kilometers since its initial inspection in April;

• the MCD’s request for Stock to provide details on HMC use remained

outstanding; and

• Industry email inquiries include Stock’s HMC is not in use for overflow

cruise ship services.

[155]

On October 19, 2016, the Clerk wrote a letter to Stock. It stated Board

counsel would be reviewing information to assess whether Stock was not operating in

accordance with these Licenses, the MC Act and/or Regulations which may lead to a

Show Cause proceeding. Compliance is relevant to Stock’s current Amendment

Applications pursuant to s. 13(a) of the MC Act. Also, any Show Cause proceeding may

render those Applications moot. After noting these, the letter stated the Amendment

Applications would not proceed until the Board received further advice from its counsel

and/or any Show Cause proceeding concluded. The letter further advised Stock that it

was not authorized to use its HMC to transport students, including from Newbridge, and

this was not alleviated by providing the transportation services for free. This section of

the letter reads:

Document: 259021

- 48 -

Until these matters are resolved, Stock Transportation Limited is not authorized to use its

highway motor coaches for the transportation of Newbridge Academy, or any other

schools pupils, teachers, volunteers or chaperones as noted in its Licenses. This

restriction is not alleviated by providing the services free of charge.

[Exhibit S-7, Tab 28, pp. 16-17]

[156]

Upon being advised of the Board’s letter, Mr. MacEachern contacted Mr.

Oxner, the Executive Director of the MCD and asked how Newbridge could secure a

HMC for its hockey teams. Mr. MacEachern testified Mr. Oxner informed him

Newbridge could either hire a local motor carrier or lease a vehicle.

[157]

By email dated October 31, 2016, Mr. MacEachern informed Mr. Oxner

that Newbridge would like to have the following added to Newbridge’s License:

Thanks for your call this afternoon. Here is the information on the bus that we would like

to add to our currently licence below:

2006 MCI – J4500

VIN # 2M93JMPAX6W063250

[ibid, p. 14]

[158]

Mr. Oxner forwarded the information to the Clerk. The above vehicle is

Stock’s HMC restricted to overflow cruise ship services and cannot be operated for

schools.

[159]

On November 3, 2016, the MCD received documentation from one of its

Inspectors who saw Stock’s HMC at a local arena transporting the students of

Newbridge. The Inspector conducted a document review of the paperwork associated

with the driver and the bus being used. The documentation received by the MCD

included a lease agreement between Stock and Newbridge for the HMC, an insurance

certificate expired on November 1, 2016, driver of the vehicle was Tina Power, and the

business card of Mr. Flynn.

Document: 259021

- 49 -

[160]

The Notice of this Show Cause proceeding was dated December 2, 2016.

With it Stock was provided with the documents the Board had at the time. These

included the Charter Undertakings provided by Ms. Coldwell regarding Stock’s 2015

invoices and deadhead charges.

3. Show Cause Proceeding

[161]

The bulk of the information became known through this Show Cause

proceeding.

(A)

Information Requests

[162]

On January 3, 2017, the Board issued Information Requests to Stock to

be answered by January 16, 2017. The IRs were:

Request IR-1:

Regarding all movements of highway motor coaches from and/or to Nova Scotia from the

first movements to the present, provide details of each movement including, but not

limited to the following:

a) Itinerary;

b) Name of each group of passengers and the contact person for the group with all

contact information;

c) All quotes;

d) All invoices;

e) Vehicle dispatch information; and

f) All trip inspection documents, drivers’ logs, etc.

Request IR-2:

Ensure that the answer provided to question No. 1 includes all School Boards and/or

school personnel transported in the highway motor coaches as well as all contact

information.

Request IR-3:

Provide copies of all mechanical documents and repairs on the highway motor coaches.

Request IR-4:

Regarding the email response of Trevor McEachern, CEO of Newbridge Academy,

(Disclosure Package Vol I, Tab 13, page 95) that, for the hockey events on September

24-25, 2016, Stock Transportation Ltd. provided an “activity bus, unit # 25593”:

a) Was this information provided by Stock Transportation?

b) Provide copies of any communication between the parties regarding this

movement.

Request IR-5:

Document: 259021

- 50 -

Regarding the email from John Penny, Inspector at the Motor Carrier Division, to Tina

Coldwell, dated September 28, 2016 (Disclosure Package Vol 1, page 108), provide

details on all charter services provided to Newbridge Academy since May 2016 using

vehicles other than the highway motor coaches, including, but not limited to:

a) Itinerary;

b) Quotes;

c) Invoices;

d) If there are no invoices, the reason for same; and

e) Vehicle dispatch information.

Request IR-6:

Regarding requests of carriers to use Stock Transportation’s highway motor coaches

from cruise ship services, provide copies of all of Stock Transportation’s responses for

2016.

Request IR-7:

Regarding the document photographed in the Disclosure Package, Vol I, Tab 18, at

pages 127 to 133, provide a complete copy of this Lease and any other Leases between

Stock Transportation and Newbridge Academy entered into on or after May 2016.

Request IR-8:

Regarding the documents in the Disclosure Package, Vol I, Tab 18, pages 125 and 134,

confirm whether Tina Marie Power has worked for Stock Transportation. If yes, in what

Capacity? Confirm whether Tina Marie Power was working for, or in relation to, Stock

Transportation on November 3, 2016.

[163]

Stock’s Response to IR-1 reads:

[Exhibit S-11, p. 2]

[164]

Tab A outlining the itineraries of each HMC movement reads:

Document: 259021

- 51 -

List of movements of Motor Coach 20808 as recalled:



May

o

Trip to Truro

o

Trip To Moncton

Trip to Montreal

Trip To Halifax

• July

o

Trip to Moncton

Trip to Ottawa

Trip to Murry Corner

Trip to Moncton

• August

o

Trip to Halifax

o

Trip to Haileybury

• September

o

Trip to Saint John

Trip to Boston

• October

o

Trip to Pier 21

Trip to Quebec

o Trip to Ontario

• November

o

Trip to Ontario

Trip to Moncton [Emphasis added]

[ibid, p. 4]

[165]

[166]

“Itinerary” is defined in Stock’s Licenses as:

Itinerary: The route, start and end times and dates of the charter as provided by the

customer. It shall also include the total hours each day the driver is to remain on service,

and the approximate mileage for each day.

Stock’s Licenses also state itinerary changes will impact charges:

(5)

Itinerary changes: Quoted rates are based on the Itinerary. It is the responsibility

of the customer to provide the Company with an accurate route including the start and

end dates of the Charter. The greater of the additional hours or kilometers over and

above the original booking will be charged.

[167]

For Tab B, “Stock Office” is the contact person for all movements, except

those for Mr. Flynn. For example, May included:



May

…

o

Trip to Moncton, Deliver of bus to Moncton by stock employee.

Contact Stock office 902 481-8400

.

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o

Trip to Montreal. Hockey group from Fredericton UNB red Devils to

Montreal.

.

Contact is Paddy Flynn 902 789-4625

Trip To Halifax, Bring bus back to Halifax Office

Contact Stock Office 902 481-8400

.

[ibid, p. 5]

[168]

documents were provided including no drivers’ daily logs or supporting documents.

[169] Stock’s Response to IR-2 to include under question 1 all information

Other than some trip Inspection reports, no other information or

regarding School Board and/or school personnel, was:

Response: See above response to IR 1 – B

[ibid, p. 2]

[170]

starting in September.

[171] Stock’s Response to IR-5 reads:

Under IR1-B the only school personnel noted is Newbridge for movements

[ibid, p. 3]

[172]

Tab E states:

List of movements of Stock School buses as recalled:



September

Trip to Amherst

o

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

October

o

Trip to Saint John

Trip to PEI

Trip to Windsor



November

Trip to Moncton

There is a daily shuttle service that started on Oct 11 running from Sackville

sports stadium to East Hants sports stadium. This operates on school days. 130

minute per day. [Emphasis added]

o

[ibid, p. 64]

(B)

May Montreal Trip

[173]

Stock does not have authority on its XP License to operate its HMC on

any extra-provincial movements. Stock’s vehicle was inspected and placed on its MC

License 595 on May 18, 2016. Stock immediately used it for an extra-provincial trip.

[174]

Mr. Flynn was identified as the contact person in the middle of the

following three trips from Stock’s IR Response for May 2016:



May

…

o

Trip to Moncton, Deliver of bus to Moncton by stock employee.

Contact Stock office 902 481-8400

Trip to Montreal. Hockey group from Fredericton UNB red Devils to Montreal.

Contact is Paddy Flynn 902 789-4625

Trip To Halifax, Bring bus back to Halifax Office

Contact Stock Office 902 481-8400 [Emphasis added]

.

[Exhibit S-11, Tab B, p. 5]

[175]

Mr. Flynn testified he organized this five-day trip from Dartmouth to

Montreal and return from May 18 to 22, 2016. It was one trip not three. He took a

group of hockey players from Nova Scotia, New Brunswick and Prince Edward Island to

Montreal.

[176]

Mr. Flynn boarded the bus at Dartmouth Crossing along with some of the

hockey players. Two of Mr. Phinney’s sons were part of the group. At the time, Mr.

Flynn was their coach. The group also consisted of approximately 15 to 20 players from

Document: 259021

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Nova Scotia. Some boarded at Dartmouth Crossing and others were picked up along

the way. Players were also picked up from NB and PEI.

[177]

some work in the Spring with the UNB B Reds hockey program.

[178] Ms. Bishop provided her driver’s daily log book entries for May 22 and 23,

Mr. Flynn stated this was not a trip for Newbridge. Rather, he often does

2016. On May 22, she drove a Stock school bus to the Irving Big Stop in Salisbury,

New Brunswick where she met the driver and Stock’s HMC with hockey players

returning from Montreal. She understood they included Mr. Phinney’s sons. Ms. Bishop

drove the HMC back into Nova Scotia. She made three different stops at Amherst,

Truro and Sackville before terminating the trip at Dartmouth Crossing. She estimated

four to five players exited at each stop, but the majority got off at Dartmouth Crossing.

[179]

Referencing her Driver’s Vehicle Inspection Reports [Exhibit S-11, Tab C]

for May 22 and 26, 2016, she confirmed Bus No. 4, 8 and 33051 are the same vehicle.

[180]

[181]

Mr. Phinney testified he completed the IR Responses.

Mr. Phinney confirmed the evidence of Mr. Flynn and Ms. Bishop. Stock’s

HMC was used to take approximately 15-20 passengers from Nova Scotia to Montreal

and return on a five-day extra-provincial trip. His two sons were on that trip. He went to

Montreal as well, but not on the HMC. He further acknowledged this was one trip not

three.

[182]

Mr. Phinney also confirmed he never provided this known information

about the trip to the MCD and did not provide it when requested by Inspector Parker or

Ms. Aisthorpe. Mr. Phinney also testified that when he asked the MCD for the specific

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dates of the trip to help him find the requested information, he knew the dates and facts.

He also knew there was not a second trip to Quebec. He testified:

Mr. Outhouse: Okay. You never did provide that information.

Mr. Phinney:

Mr. Outhouse: Now, you knew one of those trips was to Montreal.

Mr. Phinney: Correct.

Mr. Outhouse: And you knew the date of that trip.

Mr. Phinney: Yes, I did.

Mr. Outhouse: Your son, or possibly two sons, were on that trip?

Mr. Phinney: Yes.

Mr. Outhouse: Did you go to Montreal?

Mr. Phinney: Yes, I did.

Mr. Outhouse: Did you go on the bus?

Mr. Phinney: No, I did not.

No, I did not, sir.

Mr. Outhouse: We understand – I understand from the evidence given by Mr. Flynn that

he did go on the bus.

Mr. Phinney:

Mr. Outhouse: So you knew about that trip?

Mr. Phinney: I did, yes.

Mr. Outhouse: So why were you asking for dates?

Mr. Phinney: She asked for two possible trips to ---

Mr. Outhouse: Two possible trips, yes.

Mr. Phinney: Right. That’s correct.

Mr. Outhouse: Did you think there were two trips to Quebec?

Mr. Phinney: No.

Mr. Outhouse: You knew there weren’t.

Mr. Phinney: That’s right.

Mr. Outhouse: You knew there was on[e] trip.

I believe so, yes.

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Mr. Phinney:

Mr. Outhouse: And you knew the date of it.

Mr. Phinney: I did know the date of that one trip, yes.

Correct.

[ibid, pp. 492-494]

[183]

Ms. Aisthorpe and Mr. Penney testified it had been the practice of the

MCD to permit a carrier once or twice a year to provide free service to a charity where

the driver donates her/his time. This has been a long-standing enforcement practice of

the MCD. There is no formal policy.

[184]

Ms. Aisthorpe also said she had a discussion with Mr. Phinney concerning

not charging for legitimate charities:

Mr. Outhouse: Did you have any discussions with Mr. Phinney that you recall about

performing these services for free, or services for free generally?

Ms. Aisthorpe: Yes, I do recall we had discussions about performing work for free, and

the context of legitimate charitable work, so where carriers provide

transportation and/or drivers for -- in support of legitimate charities.

[Transcript, January 30, 2017, p. 216]

[185]

A meeting had been set up to discuss charitable services, but it did not

take place. She did not recall anything further being said about free services prior to

her leaving the MCD. Mr. Phinney acknowledged they were to have a meeting in July.

[186]

Mr. Phinney appeared to have known this policy as shown by the following

statement about the May trip:

So we knew that we wanted to provide this as a free service to this program in

order to get these kids to the -- I don’t know whether they’re – I don’t suspect the

UNB [B] Reds are a charitable organization but we did it anyways. [Emphasis

added]

[ibid, p. 521]

[187]

Mr. Phinney, after referencing the definition, stated if you were providing a

charter for free, you needed nothing:

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Mr. Phinney:

I guess, you know, it all comes down to the definition for -- in my time

here since 2009, you know, dealing with the Motor Carrier, it’s always

been that if the charter was provided for free, we needed nothing.

[ibid, p. 521]

[188]

This meant Stock could bring in a fleet of buses, use them for cruise ship

services, and as long as it did not charge for them, Stock was not operating outside its

licensed authority:

Mr. Outhouse: So you could, in theory, bring a fleet of buses in, offer them to the cruise

lines for free, run the other guys out of business and carry on.

Mr. Phinney:

Well, I -- again, that’s the understanding, is that with the Motor Carrier

that as long as we provide our service for free, we did not – we weren’t

operating outside our authority.

[ibid, p. 522]

[189]

Mr. Phinney testified he recalled a number of MCD inspectors, including

Chief Inspector Penney, telling him, at Stock’s shop at 51 Frazee, that as long as Stock

was doing charters for free, it was fine.

[190]

Mr. Penney was recalled to speak to Mr. Phinney’s statements. Mr.

Penney testified such services were once or twice a year for a charitable organization

like the IWK. Regarding providing free services to a commercial operation, he stated he

has never been involved with a company that could sustain it:

Mr. Outhouse: And I’m going to paraphrase what Mr. Phinney said; I don’t have total

recall. So my understanding of his evidence this morning in one respect

was that with respect to free service providing a bus for free, not

charging, that he had been told by a number of inspectors from Motor

Carrier Division, including you, I think you were named twice, that this

was fine; as long as they weren’t charging, it wasn’t a problem because it

wasn’t under Motor Carrier Act, it wasn’t for gain.

What do you say about that?

Mr. Penney:

That’s correct. We have instructed carriers, various carriers, it’s been

past practice of the Division with regards to what the Division would

consider charitable work, i.e., a single trip provided to the IWK or maybe

Ronald McDonald House or the Truro Boys and Girls Club. When we -- if

we’re talking about free services, we are expressing that on behalf of

charitable organizations or you’re providing service and goodwill. And I

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have never experienced any carrier that would do that indefinitely or as a

part of a contract service.

So any time I’ve expressed that, it’s always been in the terms of, you

know, a single trip or maybe a one-off, or it may happen twice a year;

maybe you’re providing service for the Legion or, you know, it’s a

charitable thing that you’re doing.

Mr. Outhouse: In the context of a licensed carrier, providing free service on an ongoing

basis to a commercial operation, have you ever seen that as a donation

or a charitable -- or not covered by the Motor Carrier Act?

Mr. Penney:

Never. I’ve never been involved with a company that could sustain that.

[Transcript, February 1, 2017, pp. 654-656]

[191]

Regarding the itineraries for this and all other trips disclosed by Stock in

its IR Responses, Mr. Phinney acknowledged they did not include the starting point for

the coach, the pickup places, or the movements of the HMC (ibid, p. 498).

[192]

Mr. Phinney appeared evasive answering Board counsel’s questions

regarding Stock’s computer programs and the information they can provide for all

movements of Stock’s vehicles.

[193]

Board counsel then drew Mr. Phinney’s attention to one of Stock’s Charter

Undertaking responses in which Ms. Coldwell references Stock’s computer program as

follows:

As per Request IR-4: (a) HTS – is Home to School. “charter services done for HTS

customers” This was a drop down menu in a computer program, that got selected

incorrectly for charter customer.

[Exhibit S-6, Tab 20, page 3]

The materials provided with this response from Ms. Coldwell included the Trip ID

(client), Invoice, Trip Name, Customer, Date, Itinerary, Start Time, End time, Vehicle

Unit No., Depot, Fee, and Kilometers travelled for each movement of each vehicle

providing charter services for a specified period.

Document: 259021

- 59 -

[194]

When confronted with the above information, Mr. Phinney then stated this

is what Stock produces for a “legitimate booking”. All of the information is placed into

Stock’s computer system. He stated, however, this was not done for any of the HMC

movements. He further testified Stock has no documentation for any HMC movements

in answers to Board counsel questions about his itinerary IR Responses at page 4:

Mr. Outhouse: … So now I want to go back again to the page 4 and the, “As recalled,”

because as recalled means to me you’re working from memory as

opposed to checking logbooks and so on.

Mr. Phinney:

Again, you know, with respect to the coach buses, we have no bookings.

We have no documentation -- I want to use the right word but we have

no bookings; we’ve never booked a charter or a trip on that bus. It was

just as needed we used the bus.

So we didn’t -- a typical fieldtrip would come in to our office where it

would be booked, there would be itinerary provided, there would be a

price associated with it. There would be a confirmation back out to the

customer. But the coach bus, we’ve never done that with a coach bus

because we haven’t done anything with it yet. [Emphasis added]

[Transcript, February 1, 2017, pp. 506-507]

[195]

The Board finds from the evidence before it in this proceeding, Stock also

did not produce any documentation for any of its vehicle movements (HMC, school

buses or activity vehicles) when operating outside of its Licenses.

[196]

Furthermore, Stock did not follow the above and input the information into

its computer system for its one “legitimate booking” for Stock’s use of its HMC by Coach

Atlantic for overflow cruise ship service (ibid, p. 517). Mr. Phinney gave various

reasons for this including Stock had “very limited information” (ibid, p. 465) and as for

invoicing as noted above he stated “we didn’t know what we were doing so we just left it

as a no” (ibid, p. 619)

[197]

Stock’s IR Responses for this May trip (and for all other vehicle

movements requested) failed to provide any driver’s logs or supporting documentation.

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When asked about this, Mr. Phinney began with “I’m unaware” and then acknowledged

he did not recall looking for them:

Mr. Outhouse: And so is there a driver’s log?

Mr. Phinney:

I’m unaware. I’m not sure.

Mr. Outhouse: Did you look?

Mr. Phinney:

I don’t recall, no.

…

Mr. Outhouse: So do you have the drivers’ logs?

Mr. Phinney:

I would have to go back -- I would suspect so, yes. If we’re required to

have them, then our office would have them.

[ibid, pp. 499 & 501]

[198]

Stock may not have to retain, he did not attempt to obtain these from the drivers.

[199] The Board accepts the evidence of Ms. Aisthorpe and Mr. Penney and not

For the Driver’s Daily Logs for movements within 160 kilometers that

that of Mr. Phinney regarding free trips. The Board finds as a fact that the MCD only

ever stated to Mr. Phinney that it would not enforce one or two trips per year for a

charity like the IWK when the driver donated her/his time. This was an enforcement

practice with no formal policy.

[200]

The Board also finds Mr. Phinney’s following comment is consistent with

this message from the MCD when in May he doubted the UNB B Reds Hockey team

was a charity, “but we did it anyways”.

[201]

The Board also does not believe Mr. Phinney’s evidence on the various

reasons espoused as to why Stock did not input this and other trips into its computer

system or maintain other documents for those movements of its vehicles that were for

free and/or otherwise contrary to the MC Act. Rather the Board finds that not producing

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these usual business documents had the effect of making the detection of these

movements very difficult for the MCD or the Board. Without the evidence of Mr. Flynn,

the full particulars of this trip would not have been discerned.

(C)

Murray Corner

[202]

Under IR-2 Stock was to identify all movements and contact information

done for school board and/or school personnel. Stock’s IR-1 Response for July

includes the following trip itinerary to Murray Corner, New Brunswick:



July

o

Trip to Murray Corner

[ibid, Tab A, p. 4]

[203]

Stock IR Response for the group name and contact information reads:



July

…

o

Trip to Murray Corner, Staff function

Contact Stock office 902 481-8400 [Emphasis added]

.

[ibid, Tab B, p. 5]

[204]

At the hearing, Mr. Phinney acknowledged he took officials of the Halifax

Regional School Board and some of his staff to his cottage in Murray’s Corner for a

lobster dinner. Without the hearing, this information would not have been discerned

from the IR response.

(D)

Newbridge Saint John Trip

[205]

As noted above, Ms. Aisthorpe’s contacted Mr. MacEachern requesting

details of Newbridge’s transportation services and confirmed it in her email of

September 26, 2016.

[206]

On September 27, 2016, his response included:

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… On September 24 and 25 Stock Transportation made available one of their activity

buses, unit number 25593, to transport our team to Amherst for the games. After

speaking with Stock this service was provided free of charge. [Emphasis added]

[Exhibit S-5, Tab 13, p. 95]

[207]

Mr. MacEachern confirmed the documents (sent with Ms. Aisthorpe’s

September 27, 2016, Memo to the Board) were a copy of Newbridge’s Facebook page

[Exhibit S-5, Tab 12, p. 91]. For the entry on September 23, 2016, of the PeeWee team

travelling to Saint John for the weekend, Mr. MacEachern confirmed the picture was of

the team on Stock’s HMC; not an activity bus.

[208]

Mr. MacEachern did not travel on the vehicle and did not recall seeing it.

The information in his above email to Ms. Aisthorpe was provided by Stock to either his

assistant or Mr. Flynn. He testified he would not have known the unit number of the bus

noted in his email:

Mr. MacEachern:

I certainly wouldn't have known the unit number and I couldn't -- I

didn't even recall this whole exact exchange when you were

asking me earlier about it.

[Transcript, January 30, 2017, p. 44]

[209]

Mr. MacEachern’s email also does not reference that the team went to

Saint John. He stated that although Saint John was not on the Tender schedule, it is

his present recollection that one of the tournaments, such as the one in Charlottetown,

may have been cancelled. He stated the transportation arrangements were made by

Mr. Flynn.

[210]

[211]

Stock confirmed it provided the vehicle information to Newbridge (IR-4(a)).

With Mr. MacEachern’s email response and the Tender schedule, Ms.

Aisthorpe testified she would have had no way of knowing about Saint John or that the

information about the activity bus was not correct:

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- 63 -

Mr. Outhouse: Yes. Okay. And do -- you had the discussion about the tender that

Newbridge had put out. And you did receive a copy of it.

Ms. Aisthorpe: Yes.

Mr. Outhouse: And we'll get to that. But on this occasion, you're writing to Mr.

MacEachern and asking him to provide details with respect to the

services which were provided prior to this, according to the schedule.

Ms. Aisthorpe: Yes.

Mr. Outhouse: I guess you had -- you obviously had the tender at this stage because

you knew those dates.

Ms. Aisthorpe: Yes.

Mr. Outhouse: Sure. Okay. And he writes back to you the next day giving you the

information, namely, that the Charlottetown trip was cancelled, and gives

you the details with respect to the Amherst trip. You did not ask about

the Saint John trip.

Ms. Aisthorpe: No.

Mr. Outhouse: And it wasn't on the schedule, I gather.

Ms. Aisthorpe: No.

Mr. Outhouse: No. And so he didn't provide you with any information with respect to

that.

Ms. Aisthorpe: Correct.

Mr. Outhouse: And with respect to the information he did provide you, that Stock had

made an activity bus available, Unit Number 25593, do you have any

reason to know one way or the other whether that's correct?

Ms. Aisthorpe: No.

[Transcript, January 30, 2016, pp. 199-201]

[212]

The Board notes it was very fortuitous the MCD subsequently obtained a

copy of Newbridge’s Facebook page which happened to have a posting specifically

about this trip with a picture of the vehicle and the team boarding it and on it. Without it,

this movement would have gone undetected.

(E)

August 12-15 Trip

Document: 259021

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[213]

Without having any authorization through a trip permit, temporary authority

or adding the service to its Licenses, Stock used its HMC to travel to Northern Ontario

and return with its drivers to Nova Scotia. Stock was moving school buses to Northern

Ontario. Approximately 33 drivers were involved.

[214]

Stock had been operating charter services with its other vehicles extra-

Drivers Regulations and NS

provincially and within the Province since 2013.

Regulations for their permitted safety hours (on-duty, driving, and resting) and the

completion of drivers’ daily logs apply to all of Stock’s vehicles, as they are constructed

to seat more than 10 people. Stock is required to maintain the drivers’ daily logs for all

movements of more than 160 kilometers from Cambridge, Nova Scotia. It is not

required to maintain them for the shorter trips provided Stock maintains other required

information about drivers’ hours.

[215]

During this August trip Stock repeatedly made demands of its HMC drivers

to drive beyond the permitted hours of operation which would include a requirement for

the drivers to put inaccurate information in their logs.

[216]

All driver witnesses stated there were drivers on this trip that did not know

how to complete the drivers’ logs.

[217]

[218]

below.

The facts are noted in more detail under Charges 8(E) and (F).

Information about the HMC on this trip also led to the Random Inspection

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(F)

Random Inspection

[219]

Ms. Bishop prepared a Bus Driver’s Vehicle Inspection Report for August

14, 2016 [Exhibit S-5, Tab 9, p. 82]. For the defective items she checked off gauges

and warning lights, left and right rear tires and wheels.

[220]

Her remarks included the dual tires needed to be changed as they were

measuring four millimeters or less. The right rear tag was being changed in Petawawa,

Ontario. She further noted there were no out of province plates on the vehicle.

[221]

[222]

The trip ended August 15, 2016.

As noted above, Ms. Aisthorpe contacted Mr. Phinney to do a random

inspection of the vehicle. He replied Stock needed it and, therefore, it would be

available on Friday.

[223]

Ms. Bishop testified on returning to Stock a few days after the completion

of the August trip, the dual rear and tag tires had been changed and new ones placed

on the vehicle.

[224]

Regarding the MCD directive to produce the HMC for a vehicle inspection

on August 17, 2016, Mr. Phinney testified Stock needed the vehicle. He stated he

asked Stock’s mechanics whether there were any imminent safety concerns and there

were none:

Mr. Phinney:

I requested information from my shop to have a look at the bus to see if

there was any imminent safety concerns that they were aware of.

Mr. Outhouse: And what was the ---

Mr. Phinney: They reported none at the time.

[Transcript, February 1, 2017, p. 552]

[225]

He acknowledged the request resulted from a safety complaint the MCD

had received. The HMC was inspected the next day on August 18. The inspection

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showed there were 15 defects (including three for its brakes) that required repairs

before the HMC could be operated again. If Mr. Phinney had been successful in

resisting having the HMC inspected, it would have travelled on the highways with these

defects.

(G)

Newbridge Contract

[226]

Mr. MacEachern testified Newbridge utilized the services of a licensed

motor carrier in the Province for its HMC needs during the 2015/16 school year. On

April 14, 2015, Newbridge met the licensed motor carrier to discuss its HMC

transportation needs for the school year. No contract was signed with that licensed

motor carrier; nor was a Tender issued. Mr. MacEachern testified Newbridge used the

HMC services of the licensed motor carrier on a trip-by-trip basis until its travel budget

was depleted.

[227]

For the 2016/17 school season, Mr. MacEachern stated Newbridge had

increased the number of hockey teams to five. Newbridge’s budget was prepared

based on the prices Stock agreed to charge for its transportation services. Although

hockey teams may usually take one or two trips a year, for the 2016/17 season

Newbridge had gone significantly above that for its teams. It was Mr. MacEachern’s

opinion that if Newbridge had to charge more tuition, Newbridge would likely not have

had as many students attending the school for 2016/17:

Mr. MacEachern:

Yeah. Yeah. I mean, you know, when we expanded to five

teams, you know, it -- the prices were going to be astronomical.

You know, often hockey teams will run a trip, but it's, you know,

one or two a year where we're, you know, gone significantly so,

you know, it would eat up a lot of our budget and we'd have to

charge more, making it, you know, less likely we'd have as many

students as we did. [Emphasis added]

Document: 259021

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[Transcript, January 30, 2017, pp. 68-69]

[228]

Mr. MacEachern testified his assistant prepared a Tender for Newbridge’s

transportation services for the 2016/17 season which included:

1. Transfer of students from East Hants and Sackville each afternoon from

September 12 to June 9; and

2. Transportation of students by HMC with washroom for specific listed hockey trips

(which could change), all priced separately.

[229]

The Tender was dated August 16, 2016, and closed on August 26, 2016.

School was to start on September 12, 2016, and the first hockey trip was scheduled for

September 17, 2016.

[230]

Mr. Flynn testified Newbridge did not send the Tender document to all

licensed motor carriers. It only posted the document on Newbridge’s website. He

stated he had nothing to do with the awarding of the Tender for the 2016/17 school

year. He provided the Tender responses to the owner, Mr. MacEachern. Although

they talked about the responses, he was not involved in the actual decision.

[231]

Newbridge received two responses to the Tender; one from the licensed

motor carrier Newbridge used for its 2015/16 school season and the other from Stock.

Stock’s included the following:

Prices are contingent on licensing approval from the Nova Scotia Utility and review

board[.]

[Exhibit S-5, Tab 15, p. 100]

[232]

Mr. MacEachern testified the contract was awarded to Stock shortly after

the close of the tender or during the first week of September. The Board notes the latter

would have been less than one week before the start of school and less than two weeks

before the first hockey trip.

Document: 259021

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[233]

Mr. MacEachern testified that when Newbridge awarded the contract to

Stock, it was on the assumption Newbridge would be paying for the services:

Mr. Scott:

--- to date?

Right. That you awarded a tender with the assumption that you

would be paying Stock. Yes?

Mr. MacEachern:

Yes.

[Transcript, January 30, 2017, p. 73]

[234]

Furthermore, Mr. MacEachern knew Stock was in the business of

providing bus services for which it charged a fee.

The Chair:

Am I correct, though, when you went through this tendering process and

you were seeing the prices that were provided by Stock and another

carrier, you knew Stock was in the business of providing buses; that they

would provide a service to people like you or others and charge for it?

Mr. MacEachern: Yes.

[ibid, pp. 102-103]

[235]

After reviewing some of the price differences between the quotes offered

by Stock and the licensed motor carrier Newbridge used the previous year, Mr.

MacEachern testified price was a very significant factor in awarding the contract to

Stock:

Mr. Outhouse:

--- or the one to -- the first big trip to Massachusetts, the price

that's being quoted by Stock is 4,100 and the price that's being

quoted in the other quote is 6,575.

Mr. MacEachern:

Mr. Outhouse:

Okay.

Correct? And then if I go down to the first Toronto trip -- or sorry,

(inaudible) significant trip, it's being quoted at 3,000 by Stock

and by -- 6,650 by the other bidder?

Mr. MacEachern:

Mr. Outhouse:

Yes.

And then the Toronto trip is 4,000 by Stock ---

Yes.

Mr. MacEachern:

Mr. Outhouse:

--- and 10,390 by the competitor?

Document: 259021

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Mr. MacEachern:

Mr. Outhouse:

Right.

And you'll see that same thing is similar down below for a trip to

Burlington, Ontario, 4,000 and 10,720. So ---

Mr. MacEachern:

Mr. Outhouse:

Yeah.

--- I just draw those to your attention, Mr. MacEachern. You'd

agree with me, wouldn't you, that price was a very significant

factor ---

Mr. MacEachern:

Mr. Outhouse:

Oh, yes.

--- in your choice of these bids?

Yeah.

Mr. MacEachern:

[ibid, pp. 92-93]

[236]

The Board also notes the Tender response from the licensed motor carrier

lists the additional charges for changing drivers on the long trips; the change being

required to meet the safety regulations limiting drivers’ hours.

[237]

For shuttle service of students between Newbridge’s locations, Mr.

Phinney testified he determined the price of $26,100 by looking at Stock’s price for

another customer in the Province. He cut the charge in half as Stock was only doing

service in one direction and not both. When asked about whether he looked at his

Licensed tariff in determining this price, his response was he did not. As noted above,

he thought with an RFP, Stock could charge anything it wanted (ibid, p. 557).

[238]

Stock’s Tender prices for Newbridge hockey trips are well below its

Licensed rates and below the minimum rates set by the Board for HMCs. For example,

there is a three-day trip from the East Hants Sportsplex to Pictou, Nova Scotia for which

Stock would charge $2,000. Stock’s Licensed rates are the greater of the distance or

the daily rate. The daily licensed rate for Stock’s HMC is $1,400. The base charge

using the daily rate is $4,200 and subject to HST and other charges on its License. The

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Board minimum daily rate for the HMC in 2016 is $1,200 and the base charges for this

trip would be $3,600.

[239]

Mr. Flynn also testified that during the previous school year 2015/16,

Newbridge used a licensed carrier in the Province for its HMC needs. The costs were

very expensive. Mr. Flynn, in general, testified he understands HMCs are expensive,

and people investing in these need to charge rates that cover their costs. Mr. Flynn

further testified he was not recommending people charge rates that are not sustainable.

Mr. Flynn was not aware the Board had set minimum rates for HMCs in the Province to

ensure the sustainability of the licensed motor carriers.

[240]

Mr. Flynn testified to Newbridge’s use of Stock’s public passenger

vehicles for its students in the fall of 2016. In particular, Board counsel reviewed some

of the trips on the schedule attached to Stock’s Tender response, Exhibit S-5, Tab 15,

pp. 99-100.

[241]

Mr. Flynn testified the first trip was the above September 23-24, 2016, to

Saint John. Saint John was not on Newbridge’s Tender hockey trip list. He stated that

although the schedule is fairly accurate, it will undergo some modifications. Some

tournaments are cancelled, while others are added, such as Saint John. Once

Newbridge received Stock’s Tender prices for the various trips, Newbridge would expect

any new trips to be a similar cost.

[242]

Mr. Phinney stated he put on the Tender the statement about the prices

being contingent on Board approval because he knew they would have to be added to

Stock’s Licenses. As above, he stated he did not think the inclusion on its Licenses

needed to proceed through a public hearing process and Stock was able to charge

Document: 259021

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Newbridge what it wanted, including nothing. He also testified he could withdraw from

the contract at any time, as he did not have approval from the Board.

[243]

With respect to this statement about Stock’s prices dependent upon

approval of the Board, Mr. MacEachern thought this was just a filing on Stock’s

Licenses.

[244]

Stock waited before applying to amend its Licenses to seek to have the

Newbridge contract services added. At the time of receiving the applications, the MCD

provided facts which suggested Stock may not be operating within its Licenses.

(H)

October 20-23 Trip

[245]

On October 19, 2016, the Clerk forwarded its letter to Stock which

included information about Board counsel’s review and stated that until matters were

resolved Stock could not use its HMC for schools (including Newbridge) and that this

was not alleviated by providing the services for free.

[246]

Mr. Phinney acknowledged that regardless of what he may have thought

about not charging its Licensed rates, it knew from this letter it could not provide

services for free.

[247]

Mr. Flynn testified that on October 20-23, 2016, Stock’s HMC transported

Newbridge’s students on a four-day trip to Toronto, Ontario.

[248]

[249]

Mr. Phinney and Mr. MacEachern said the trip was for free.

Mr. Phinney testified Stock is not in the business of providing

transportation services for free; and nor was it to be considered a long-term position of

the company.

Document: 259021

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(I)

November 1-5 Trip

[250]

Stock continued to use its HMC to transport students for Newbridge under

a document called “a lease” for the same contract services as above, other than

providing the services for free.

[251]

Mr. MacEachern testified that when he was informed of the Clerk’s

October 19, 2016, letter to Stock, he contacted Mr. Oxner. He stated Mr. Oxner said

Newbridge could either hire a local motor carrier or enter into a lease agreement for a

HMC. The latter was possible, provided the vehicle was inspected, the lease

agreement and insurance were on the bus, and it was driven by a qualified driver.

[252]

Mr. MacEachern testified he knew the cost of a HMC was between one

half to one million dollars (Transcript, January 30, 2017, p. 58). He understood the

concept of a lease for a HMC would be similar to leasing a car. He also understood the

concept that licenses for these expensive vehicles are like a salesperson’s territory and

that a person would require approval from the Board before it could provide

transportation in someone else’s area of service.

[253]

Mr. MacEachern testified he did not see the “lease” document before it

was signed by Mr. Flynn on November 1, 2016, nor did anyone in Newbridge prepare it.

He did not know that it did not contain any rental price for the HMC.

[254]

Regarding the “lease”, Mr. Flynn testified he knew Newbridge and Stock

tried to put one together for this trip to Burlington, Ontario. Mr. Flynn stated he was

aware the MCD recommended Newbridge could lease a vehicle. Mr. MacEachern was

the person seeking information about Newbridge’s options for obtaining HMC

transportation. Mr. Flynn stated he had no involvement with the creation of the “lease”

document.

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[255]

Mr. Flynn testified he was at the HMC ready to leave on this Burlington

trip. The “lease” document was there. It was unsigned, so he signed it.

[256] Mr. Flynn did not notice that the document left the rent blank. He testified

that when he signed the document he thought Newbridge would pay Stock for these

trips at an amount close to Stock’s Tender prices. Under cross-examination by Stock,

Mr. Flynn stated he was not party to any discussions about Newbridge paying Stock for

the services, but commented he would not be able to say Newbridge was not going to

pay for the service either.

[257]

Mr. Phinney testified he personally drafted the lease document between

Stock and Newbridge [Exhibit S-11, Tab G]. He took clauses from other leases Stock

had used at various times. He prepared the lease very quickly so the bus could leave on

this trip. Mr. Flynn signed it as he entered the HMC.

[258]

Mr. Phinney confirmed the lease was intended to be for six months. Stock

would provide the driver, which was exclusively under Stock’s control. Stock would do

all the repairs for the vehicle. Stock would also provide gas and insurance. Mr.

Phinney also stated that despite the expenses, such as for the driver, Stock was

providing the service for free.

[259]

He confirmed Stock was providing the same service under the lease as

under the intended contract with Newbridge, except now Stock was providing it for free:

Mr. Outhouse: Okay. But my point is you are going to, in effect, put the lease in place

with, in effect, no rent, and you’re going to continue to provide the same

service, same bus, same driver, same deal with respect to expenses and

so on as you were doing before, only now you have a lease in place

between the two of you.

Mr. Phinney:

Yes.

[Transcript, February 1, 2017, p. 579]

Document: 259021

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(J)

November 17-20

[260]

In summary, when Newbridge was informed that it could no longer use

Stock’s HMC, Stock again used the HMC to transport Newbridge students by tagging its

Licenses together. It transferred students on its school buses to Moncton and then

used its HMC to shuttle the students between hotels and the rink.

[261]

The facts are the Clerk informed Mr. MacEachern and Mr. Flynn, by email

dated November 3, 2016, that for Newbridge to lease and operate Stock’s HMC,

Newbridge needed to make an application to the Board which would advance through

the public hearing process (as set out in the MC Act).

[262]

Mr. Flynn testified that for the trip to Moncton on November 17-20, 2016,

Stock provided a school bus to transport the Newbridge students to Moncton. In

Moncton, Stock’s HMC was used to shuttle the students between the hotel and the rink:

Mr. Outhouse: So if I understand your evidence correctly, what happened was your

team or teams were transported by school bus provided by Stock to

Moncton, and then the coach [HMC] was used to shuttle players from the

hotel where they were staying to the various arenas ---

Mr. Flynn:

Yes.

[Transcript, January 30, 2017, pp. 134-135]

[263]

[264]

Mr. Phinney confirmed Mr. Flynn’s evidence (Transcript, supra, p. 545).

After the Moncton trip, Newbridge used a licensed motor carrier with

authority to operate an HMC.

(K)

Other Movements

[265]

Stock used various vehicles (including school buses, activity buses, and

HMC) on other trips not mentioned above, without authority to do so by trip permit,

Document: 259021

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temporary or permanent authority, and/or without charging its Licensed rates set by the

Board.

[266]

Mr. MacEachern testified Newbridge had used Stock’s school buses a

couple of times in the previous school year of 2015/16, and on one occasion for a

period of approximately six weeks when its bus broke down:

Mr. Outhouse:

Okay. All right. Had you ever dealt with Stock Transportation

prior to this -- awarding this tender?

Mr. MacEachern:

Yes. They had helped us out a couple of times the previous year

when our bus was broken down or being held up for inspection. I

believe it was held up for about six weeks.

Mr. Outhouse:

And this is the 46- passenger bus?

Mr. MacEachern:

Yes.

Mr. Outhouse:

service?

And they helped you out, what; by providing what type of

Mr. MacEachern:

A school bus.

[ibid, pp. 32-33]

[267]

Under cross-examination by Stock, he stated Newbridge did not pay for

that service either:

Mr. Scott:

Okay. And do I understand, aside from sort of providing some

advice on a couple of occasions, where you had a breakdown,

Stock provided you with a replacement bus?

Mr. MacEachern:

Mr. Scott:

Oh, yes.

Right. And that was free of charge?

Mr. MacEachern:

Yes.

[ibid, pp. 86-87]

[268]

Mr. Flynn also testified Stock provided buses to Newbridge during the

previous school year, of 2015/16.

Document: 259021

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[269]

For the current school year, Stock provided activity and other school

buses (in addition to Unit No. 25486) for Newbridge students as outlined in Stock’s IR

Response Exhibit S-11, Tab E, p. 59, (ibid, pp. 541-547).

[270]

Mr. Phinney stated that on the very date he testified at this Show Cause

hearing Stock was providing (and had provided in the past) free school buses to other

public school boards (without authorization to do so either under trip permit, temporary

authority or permanent license authority) (ibid, p. 581);

[271]

As an example of a recent trip were Stock used its vehicles for free, Mr.

Phinney testified Stock transported an employee’s brother, and others from the same

facility, to a local event. This movement appeared to have been on the HMC (ibid, p.

649).

[272]

Stock continued to operate its vehicles as it wished even after having

been stopped, charged and at times fined for operating outside of its Licenses including

having “the wrong students”, that is students Stock was not authorized to transport:

Mr. Scott:

Has it ever[ ] come up as part of an inspection, I mean, a bus getting

pulled over during, say, you know, moving some employees up to your

cottage of something? Has that ever come up?

Mr. Phinney:

It has in the past where they’ve pulled us over for having the wrong

students or the wrong such and such on the bus, yes.

Mr. Scott:

Right. And the issue of whether you’re charging or not, has it come up?

Yes.

Mr. Phinney:

Mr. Scott:

Have you ever had a problem as a result?

Yeah, we’ve been fined in the past.

For what?

Mr. Phinney:

Mr. Scott:

Mr. Phinney:

Mr. Scott:

For operating outside our licence authority.

Right. And what was the result of those charges? [Emphasis added]

[ibid, pp. 593-595]

Document: 259021

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4.

Timeline

2009

2013

- Mr. Phinney becomes the Regional Manager for Stock in charge

of its offices from Alberta to Nova Scotia.

January 21

- Interim Discount Decision: Board determined all contracts

seeking to charge below their Licensed rates, including those

that were public tendered, had to advance through the Board’s

regular application process and subject to s. 13.

December 3

- Stock given Board approval for transfers of Perry Rand’s license

giving Stock authority to provide charter services.

- No HMC authorized on the Licenses.

2015

February 24

- Discount Decision which includes limiting discounts and setting

minimum rates for HMC.

April 10

- Stock applied to amend its Licenses to amongst other things

add four HMCs for full charter authority and set or increase

various charter rates.

April 13

July 27

- Newbridge contacts local licensed motor carrier to arrange for

its HMC needs for the 2015/16 school year.

- At its hearing, Stock requested to amend its Applications to

incorporate the agreement reached with opposing parties to

only use the HMCs for overflow cruise ship services and

specifically, no charters or school services.

- Stock’s request to amend its Applications removed the request

for an XP authority for the HMCs.

- Stock undertook to provide charter invoices for May, June 2015

re whether charging its deadhead rates.

September

2015/16

- Local licensed motor carrier provides HMC services to

Newbridge’s hockey teams for the 2015/16 school year.

- Stock provided Newbridge with a school bus a couple of times

during the school year including for a six week period (for free).

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- Stock has provided school buses to other public school boards

for which it was not licensed (for free).

November 4

December 4

- Deadhead Decision confirms carriers must charge rates for

each deadhead kilometer.

- Email from Ambassatours to Stock [S-11, Tab 5, pp.66-68] to

book three HMCs for overflow cruise ship services for 2016:

September 01, 05, 08, 11, 12, 15, 16, 19, 22, 23, 25, 26, 28, 29

& 30

October 04, 05, 06, 07, 11, 13, 14, 20 & 28.

2016

January 29

- Absolute/Ambassatours contacts Stock also requesting dates

for three coaches on June 29^th.

February 26

- After Stock substantially completes the Charter Undertakings,

Board renders Stock Decision incorporating the amendments to

its Applications as requested by Stock with modifications.

March 2-6

- Stock asked the HMCs be placed on its school bus services

including for HRSB on MC License 2714.

- Series of emails between MCD and Stock- MCD informed Stock

the HMCs may only be used for overflow cruise ship services,

may not be used for schools, school buses with specific

characteristics including safety may only be used for school

services, and HMCs cannot be added to school bus services

without applying to the Board.

Date unknown - Ambassatours also calls Mr. Phinney regarding Stock’s

availability for overflow cruise ship services.

May 18

- One HMC is satisfactorily inspected, plated and added to the

MC License.

May 18-22

- Stock used the HMC to transport between 15 and 20 hockey

players from Nova Scotia (including two of Mr. Phinney’s sons),

as well as Mr. Flynn (the hockey coach), on a five-day trip from

Dartmouth to Montreal and return.

June 7

- Inspector Parker of the MCD requested information about extra-

provincial transportation services provided with Stock’s HMC.

No information was provided.

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June 10

June 30

- Ms. Aisthorpe, Director of the MCD, sent a detailed email

requesting the same information about the extra-provincial

transportation with Stock’s HMC to be answered by June 30^th.

- Mr. Phinney writes to the MCD requesting an extension, stated

the services were provided at “no charge to any customer”, and

asked for specific dates:

… I wish you could be more specific, do you have specific dates

that you are looking for?

… In the meantime if there are specific dates? It might speed up

the process. [Emphasis added]

July 4

July

- Extension is provided to July 8^th.

- Stock took the HMC to New Brunswick carrying Halifax

Regional School Board officials to Mr. Phinney’s cottage.

- Three other extra-provincial trips to Moncton, Ottawa and

Moncton.

July 8

- Mr. Phinney emails advising information would be provided the

following week due to personal circumstances.

July

- A meeting was set for Mr. Phinney and Ms. Aisthorpe to talk

about charitable services (meeting did not occur).

August 12-15

- Stock’s HMC movement from Dartmouth to Northern Ontario

and return with drivers to relocate school buses.

- Stock demands drivers operate the HMC after they will exceed

their permitted safety hours on duty.

- Above congruently demands drivers record inaccurate

information about their hours on duty and driving in their Drivers’

Daily Logs.

August 16

August 17

- Ms. Bishop and Mr. LePage, two non-unionized employees, do

not receive any further work from Stock.

- Ms. Aisthorpe contacts Mr. Phinney by telephone and email

directing the HMC be provided for inspection.

- Mr. Phinney says Stock needs the vehicle and it will be

available Friday for the Inspection.

- MCD repeats direction and Stock then requests a delay.

- MCD inspects the HMC:

August 18

Document: 259021

- 80 -

- 15 defects (including three in relation to brakes) that must be

completed before the vehicle is allowed to operate again.

- Other defects must be completed by September 15, 2016.

August 22

August 27

- Ms. Bishop and Mr. LePage prepare an Incident Report and file

it with the MCD.

- Ambassatours CEO, Mary Dempster, emails the MCD asking

whether Stock is using its HMCs for overflow cruise ship work

as they have repeatedly called and received no responses

(attached picture of Stock’s HMC).

August 16

August 25

August 26

- Newbridge places a Tender on its website for its transportation

needs for the 2016/17 school year: (a) school shuttle and (b)

HMC for hockey teams.

- Stock responds to Newbridge Tender as does the licensed

motor carrier with HMC authority that serviced Newbridge in

2015/16 school year.

- Newbridge Tender closes.

- Stock’s prices well below the minimum rates for HMC set by the

Board and Stock‘s licensed rates.

- Stock quoted prices for some trips are 50% to 60% below the

local licensed motor carrier and below Board set minimum rates

for HMC.

- Stock’s response states ‘prices are subject to NSUARB

approval’. Contract services and prices are both subject to

NSUARB approval.

September

- Newbridge advised Stock is the successful bidder (shortly after

the Tender closed or within the first week of September). If the

latter, school started within less than one week and first hockey

trip less than two weeks.

September 18 - Stock’s HMC repaired, re-inspected, and licensed to operate.

September 23-25- Stock’s HMC took Newbridge students to Saint John, New

Brunswick trip (not on the schedule of trips in its Tender).

September 26 - Stock Amendment Application to service Newbridge is perfected

(filed Sept. 21).

- Does not include Halifax Regional School Board.

Document: 259021

- 81 -

September 26 - Ms. Aisthorpe contacts Mr. MacEachern of Newbridge asking

details about its September trips listed on the Tender schedule.

September 27 - Mr. MacEachern responds that Stock provided one activity bus,

Unit No. 22593, to Amherst.

- No reference is made of the Saint John trip for its students.

September

- Newbridge’s Facebook page: posting dated September 23^rd–

shows a picture of Newbridge’s hockey team on Stock’s HMC

referencing the team travelling to Saint John.

- Stock took Newbridge students to Boston. (No date provided in

IR Response).

September 27 - Ms. Aisthorpe’s Memo to the Clerk with Stock’s Amendment

Application and provided the following facts:

• With the attached Newbridge’s Facebook postings, it

appeared Stock is, and has, provided services to Newbridge;

• Based on inspection reports Stock’s HMC has travelled

10,741 kilometers since its initial inspection in April;

• The MCD’s request for Stock to provide details on its HMC

use remained outstanding;

• Industry email inquiries include Stock HMC not in use for

overflow cruise ship services.

September 27 - Chief Inspector Penney inspects Stock’s school bus, Unit

#25486, at East Hants Sportsplex where the driver identifies he

is transporting Newbridge students between its facilities (for

free).

September 28 - Chief Inspector Penney confirms in an email to Ms. Coldwell

that Stock is providing the above shuttle services for free.

October

- Trips for Newbridge to Quebec. No date given in IR Response.

October 19

- Clerk writes to Stock stating its Amendment Applications for the

Newbridge contract are suspended until the Board counsel’s

review, Stock is not authorized to transport students of

Newbridge, and this is not alleviated by providing the services

for free.

October 20-23 - Stock uses its HMC to transport Newbridge students to Ontario

and return. (Stock states for free).

Document: 259021

- 82 -

October 21 [?] - Stock officially begins using a school bus to provide shuttle

services between Newbridge’s two school locations. (For free).

October 31

- Mr. Oxner of the MCD informs Mr. MacEachern of Newbridge

that it can either hire a local motor carrier or lease a vehicle.

Newbridge advises the MCD by email that it will lease vehicle:

2006 MCI – J4500, VIN # 2M93JMPAX6W063250 and add the

vehicle to Newbridge License. Vehicle is Stock’s HMC.

November 1

- Stock uses its HMC to take Newbridge students to Burlington,

Ontario on a 3-5 day trip.

- Lease is virtually the identical contract Stock has with

Newbridge. Mr. Flynn signs it as he enters the HMC.

- Mr. Phinney drafts document called “Lease,” and uses its HMC

to transport Newbridge students.

- Stock states for free. Mr. Flynn of Newbridge signed “lease”

believing Newbridge would eventually pay if Stock is licensed.

November 3

- MCD receives documents from an Inspector after a roadside

inspection of Stock’s HMC at a local rink. Driver Tina Power

states transporting Newbridge students and provides a copy of

the lease.

- Clerk emails Mr. MacEachern and Mr. Flynn of Newbridge

advising Newbridge must make an application to the Board to

obtain approval to use Stock’s HMC.

November 17-20- Stock used its HMC for Newbridge’s students in Moncton, New

Brunswick by tagging Licenses. Stock transported Newbridge

students to Moncton in a school bus (for free) and then used its

HMC to shuttle students between the hotel and rink.

December 2

- Date of the Notice of the Show Cause and disclosure

documents.

VI

ARGUMENTS

In this Section, the Board will review the general arguments raised by

[273]

counsel. Their arguments relating to specific charges will be addressed under the

charge.

Document: 259021

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1. Board Counsel

Board counsel gave an overview of the law and cases applicable to these

proceedings before discussing each of the charges separately.

[275] Board counsel began her submissions with a review of the Board’s power

[274]

and authorities. In particular, she emphasized the provisions of s. 27(1)(a) in granting

the license, (c) fixing rates, and (e) doing such acts as are necessary for the effective

administration. Under s. 29, the Board has power and authority to give effect to the

Rules, Regulations and Decisions. Under s. 19(1) the Board may, at any time, amend,

and suspend or cancel a license for cause after a hearing; and (2) will take into

consideration the provisions of s. 13.

[276]

World Class Limousine and Company, 2014 NSUARB 172, noted there

are no stated objects under the MC Act. However, in reviewing the legislation as a

whole and giving it a broad and liberal interpretation, the Board found its objects are:

[30] As also noted in prior Board decisions, there are no stated objects in the Motor

Carrier Act. In reviewing the legislation as a whole, and giving it a broad, liberal and

purposive interpretation, the Board has found that the objects of the Motor Carrier Act are

to ensure there are safe, quality and sustainable motor carrier public passenger services

which best meet the interests of the traveling public within, to, and from Nova Scotia. To

accomplish this, the Motor Carrier Act requires the Board to regulate virtually all aspects

of the motor carrier industry: see Absolute, 2010 NSUARB 171 (), para. 42.

[277]

In Acadian InterCity Coaches LP, 2010 NSUARB 22, the Board

referenced its jurisdiction under the Motor Vehicle Transport Act. It stated the Federal

Government appointed the Board to exercise the government’s authority and jurisdiction

over intra-provincial transportation. In this context, the Board is effectively a Federal

Board. It has the authority to grant extra-provincial operating licenses for motor carriers

taking people from Nova Scotia to other areas outside of its borders, and bringing

Document: 259021

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people into the Province. The MVT Act directs the Board to exercise its jurisdiction

using the same criteria outlined in the MC Act.

[278]

Board counsel argued the following findings in the Board’s Discount

Decision are relevant to this proceeding and were summarized or included in the Stock

Decision:

 Proceeding initiated by the Board to consider discounting practices and

impact on the Industry;

 Two technical conferences with participants;

 Board ultimately adopting rate recommendations with modifications;

 Set minimum rates for HMCs;

 Board and its predecessors have regulated the Industry since 1911;

 Sustainability is one of the legislation’s overriding directives (para. 14);

 Board reviews a number of unique factors affecting sustainability which

were also addressed in the Stock Decision;

 Rates must be sufficient to cover costs, are essential for repairs and

replacement of vehicles, which is important for safe quality services and

sustainability (para. 25);

 Rates that do not cover costs of operation are considered predatory (para.

27);

 Evidence of economist. Mr. Gardner (also referenced in the Stock Decision)

summarized:

o Overall discounts are a zero-sum gain meaning any business

attracted by one motor carrier using a discount takes work away

from another (para. 39);

 The Board’s review of the various discounting practices included cutting

rates, quoting rates approved for a lower class, and cash sponsorship (para.

67);

 Whether considering regulated or unregulated discounts the effect is the

same; it reduces the revenue generated by the motor carriers (para. 72);

 Mr. Gardner stated the Industry was not healthy, it was under-revenued;

and all things being equal, discounts will result in the financial position of the

Industry worsening;

 The Board accepted the evidence of Mr. Gardner that discounting will have

a negative impact on individual motor carriers and the Industry as a whole

(para. 85);

 The Board adopted the definition of HMC, set discount at 20%, but the

discount charged cannot go below the minimum rates set by the Board

(para. 104).

Document: 259021

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[279]

The minimum HMC rates gradually increased annually until 2017, at which

point the Board would set minimum rates for 2018 to 2020.

[280] Board counsel then reviewed the Stock Decision in detail, noting the

Applications to amend its licenses were initially filed on April 10, 2015 (but not

perfected), shortly after the Discount Decision was released.

[281]

[282]

Stock was represented by Jason Cooke at the hearing.

After reading the Board’s Discount Decision, Stock removed its proposed

amendment for a 20% discount for its HMC (para. 9).

[283]

Stock had purchased the Licenses of Perry Rand in December of 2013,

which had the authority to do general charter services (para. 18). In this Show Cause

proceeding Mr. Phinney acknowledged Perry Rand had abandoned its authority to

operate HMCs.

[284]

its RFP responses as an added benefit to school boards (para. 22).

[285] Mr. Phinney acknowledged Stock’s HMCs could have a significant

negative impact on the other motor carriers (para. 31).

Stock did not care if the HMCs made money (para. 21). They were part of

[286]

After referencing sustainability as one of the overriding objectives of the

MC Act, Board counsel emphasized paragraphs 78 and 79 of the Stock Decision:

[78] Key components to achieving the objectives of the MC Act, including sustainability,

are the Board’s regulation of the number and types/sizes of vehicles operating in the

Province, the location of the carriers, the areas in which the services are provided and

the rates they charge. The interrelationship of these issues is briefly summarized below.

[79] Regulating the number of vehicles permitted to operate in the Province ensures the

supply is not greater than the demand so that there is sufficient work available for

licensed carriers to recover the costs of providing the transportation services, including

their capital investment, and to make a profit. This is the first issue the Board is to

consider under s.13(a) of the MC Act; that is, whether there would be an excess of

equipment if the license is granted.

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[287]

The Stock Decision referenced the importance of the sufficiency of the

rates for the sustainability of motor carrier services and how insufficient rates could be

predatory (para. 83), before providing a lengthy review of the Discount and Deadhead

Decisions.

[288]

Regarding the licensing of the HMCs, Board counsel read into the record

the following passages where the Board found that Stock had not met the criteria of s.

13 of the MC Act. Nor did Stock do so for the cruise ship services. Furthermore, as the

motor carriers remained unhealthy and under-revenued, the Board would continue to

monitor them to achieve sustainability for the services:

[102] … To fully appreciate this Decision, it is important to note, the Board finds Stock

failed to prove the provisions of s.13 of the MC Act for its initial Applications seeking

unrestricted use of these highway motor coaches for all charters. …

[103] Even in relation to the cruise ship services, the evidence did not support

unrestricted approval, …

[104] One of the most important facts in this case is, that after reviewing the most recent

year-end financial statements of the carriers, the Board finds the Industry in Nova Scotia

is very unhealthy and under-revenued. …

[109] …To achieve their sustainability, the Board will remain diligent in its regulation of

the types and number of vehicles, and their rates, as the Industry moves forward from the

prior poor economic years until their financial health improves. …

[289]

Under paragraph 112, the Board specifically stated Stock was prohibited

from doing any charter work for anyone, including for its contracted school boards, as

they are currently using the existing licensed motor carriers for their HMC needs. Board

counsel emphasized Mr. Phinney was told this, again, in an email from Ms. Aisthorpe on

March 3, 2016.

[290]

Board counsel noted an agreement was reached between the motor

carriers, which the Board granted, for the very restricted use of the HMCs for overflow

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cruise ship services. They could not be used for any other service, including but not

restricted to, schools, charters, and tours (para. 118).

[291]

At para. 122, Stock was advised by the Board the HMCs were not

sustainable with this operating authority alone, but Stock had agreed to these terms. If

Stock determined it no longer wanted to provide the services, it could apply to abandon

the services.

[292]

Board counsel emphasized the Board’s Findings that Stock did not meet

the criteria of s. 13. There is an excess of equipment. The sustainability of the Industry

is impacted.

[293]

Board counsel argued that, even if Mr. Phinney “breezed through” this

entire Decision, all of these points are succinctly referenced in the Conclusion section of

the Stock Decision.

[294]

Board counsel argued the overarching issues in this Show Cause

proceeding, under the MC Act and the MVT Act, are

1. Stock provided services with a licensed public passenger vehicle to groups it was

not licensed to service; and

2. Stock provided the services for free.

[295]

The remaining comments of Board counsel relate to the scope of the MC

Act or facts and her arguments for various charges. The Board will address these

separately.

2. Stock

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[296]

Stock’s main argument challenges the scope of the MC Act and the

Board’s jurisdiction, which is addressed below. Its other arguments relate to the specific

charges. These will be addressed in the Findings section.

VII

FINDINGS

The Board will decide the scope of the MC Act and Board’s jurisdiction

[297]

before addressing each charge.

1. Scope of Motor Carrier Act

Issue:

Does the Motor Carrier Act apply to a motor carrier if it

uses its licensed vehicles to transport people for free?

(A)

Statute

[298]

The main sections of the MC Act argued for this issue are:

(i)

“public passenger vehicle” means a motor vehicle operated by or on behalf of a

person carrying on upon any highway the business of a public carrier of passengers, or

passengers and freight, for gain and includes a school bus;

License and compliance required

7

(1)

Except as herein provided, no person, either as principal or by an agent

or employee, shall operate a public passenger vehicle upon a highway within the

Province

(a)

without holding a license issued by the Board allowing the vehicle to be

so operated; or

(b)

in a manner, at a place or for a purpose that is not authorized by the

terms of his license.

(2)

No motor carrier shall operate a public passenger vehicle under the

license issued to him other than a public passenger vehicle designated in such license.

[Emphasis added]

[299]

Under the UARB Act, the Board has jurisdiction to determine questions of

law, s. 4 and 22(2).

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(B)

Arguments

[300]

Board counsel understood Stock would raise, as a defense to the charges,

the definition of “public passenger vehicle” in the MC Act and providing free

transportation services. Board counsel emphasized it is “the business” of a public

carrier of carrying passengers “for gain” that is central to the definition. When a vehicle

is licensed by the Board, all of the vehicle’s movements are regulated under the MC

Act.

[301]

Board counsel argued Stock is a business. It is one of the largest bus

companies in the world. Stock acknowledged it is in the business of carrying

passengers on the highways for gain. Stock has restricted Licenses. The vehicles at

issue in this case have restricted license authority.

[302]

Board counsel used, as one of the examples of free service in this case,

those for Newbridge. Newbridge is also a business. Newbridge put out a Tender for its

transportation services. Stock answered and advised what money it proposed to

receive for providing the services. They had a business relationship.

[303]

Without licensed authority, Stock provided the same transportation

services to Newbridge for free.

[304]

Mr. Flynn had understood that even though Newbridge had received these

initial trips for free, it was his understanding that if Stock received its licensed authority,

Newbridge would pay for the services. Similarly, with respect to the lease, Board

counsel argued Mr. Flynn’s evidence was that, at some point, Newbridge would have to

pay for the services. Board counsel argued Mr. Flynn is part of Newbridge.

[305]

With respect to charitable purposes, past practice of the MCD was not to

enforce licenses if a motor carrier provided free service to a charity once or twice per

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year. Board counsel argued both Ms. Aisthorpe and Mr. Penney had not encountered a

situation like this where there were multiple trips for free.

[306]

Board counsel argued one of the reasons why free service has not

happened multiple times is because it is a form of discounting. Regardless of whether

that is the intent, it is the result.

[307]

In addressing the Board’s question of whether the transportation of

employees is exempt, Board counsel stated there is nothing in the Acts which exempts

the need to be licensed when an employee is on the vehicle. Furthermore, she argued

that under the MVT Act, there is nothing that references “for gain”. Therefore,

regardless of the Board’s decision in relation to “for gain” and its meaning within the MC

Act, under the MVT Act this vehicle had to be licensed to move out of Nova Scotia

whether it carries employees or not.

[308]

where a vehicle’s movement one day is under its license and the next day it is not.

[309] Board counsel also argued this raises two main issues: sustainability and

Board counsel emphasized the interpretation cannot cause a situation

safety. Safety is impacted by frequency. If a motor carrier uses the vehicle endlessly

for shuttling employees, further inspections may be necessary. For example, in the

August 18, 2016, inspection, the HMC was found to have brake safety issues amongst

other repairs that needed to be remedied and re-inspected before it would be authorized

to operate again on the highway.

[310]

Board counsel stated there are various ways motor carriers may request

authorization to use their vehicles for other services beyond their licensed authority,

including employees, such as trip permits and temporary authority under s. 9.

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[311]

Stock’s counsel commented that, in preparation for this hearing, he read

and reread the MC Act many times and has brought fresh eyes to the legislation and,

therefore, a fresh interpretation.

[312]

business of transporting people in passenger vehicles for gain.

[313] In summary, however, Stock argues, other than movements for which the

Stock’s counsel (also Stock) acknowledged Stock is a motor carrier in the

HMC is licensed, everything else is outside of the MC Act and, therefore, not within the

Board’s jurisdiction. The word “gain” restricts the Board’s jurisdiction to only those

activities of the vehicle when it is being used for a commercial purpose. Consequently,

when Stock is transporting the public in its vehicles for free, the Board has no authority

over those movements. When Stock is transporting an employee with friends and

family for free, the MC Act has no application. In other words, “gain” is connected to

each specific individual movement. Stock argues it is akin to a taxi. When the roof light

is on, it is collecting money and is within the MC Act. Otherwise, the vehicle can do

what it wants on the highways of Nova Scotia and across Canada and need not be

licensed for any free movements.

[314]

Specifically, Stock argued the MC Act allows the Board to regulate busing

activities” for gain”. It is not regulating the vehicles, but rather the individual movements

of them. Stock begins its argument as follows:

… But whatever the case what is very clear on a plain reading of the Act is that the

activity to be regulated, the activity that is being governed under the Act is commercial

bussing. Commercial bussing.

It's not the busses that are being regulated, it's their activity. And specifically commercial

activity for gain. Nobody's disputing that Stock Transportation is in the business of

bussing and that it meets the other requirements of operating public passenger vehicles

under the Act.

[Transcript, February 9, 2017, pp. 120-121]

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[315]

Stock emphasized the critical component is whether the bus is being

operated “for gain”. If not, then the activity is not within the scope of the MC Act and,

therefore, is not regulated by the Board. Consequently, anything for free, for private, or

for employees, is not within the MC Act.

[316]

Stock argued Board counsel was incorrect when, in referencing ss.

7(1)(a), she stated no one is permitted to transport “people” on the highways of Nova

Scotia. Stock argued a person does not need a license to transport people on the

highways of Nova Scotia. Rather, Stock argued the wording of s. 7 is “cannot operate a

public passenger vehicle”. Public passenger vehicle is defined and refers to the

activities related to and is “for gain.”

[317]

meaning of the word.

[318] Stock argued “gain” means for a commercial business use.

“Gain” is not defined in the MC Act and, therefore, would have the plain

The

transportation movement is for a fee, for costs, for a fare. It argued the MC Act makes a

distinction between commercial and non-commercial activities, similar to a taxi car:

… It is a commercial business use presumably for a fee, for cost, for fare. It is a public

vehicle, it's not one that you're using to move your people around. That would be a gain

in some context, in a broad context.

We need to move buses to Quebec and we have a motor coach [HMC] that we can use

as a chase bus in a wildly broad sense of the term that would be a gain to the company

because they don't have to hire another bus or it's more comfortable for their drivers or

what-have-you.

What I am suggesting is it's not a gain for the purpose of the Act because that's clearly a

much more substantive intention so as not to confuse non-commercial use with

commercial use, the same way we'd make a distinction between the use of a taxi and the

use of a private car, notwithstanding that that may be the same vehicle.

[ibid, pp. 135-136]

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[319]

Stock also argued the Board could adopt the Ontario Court’s interpretation

of “compensation” used in the Ontario legislation as the meaning of “for gain” under the

MC Act of Nova Scotia.

[320]

Stock referenced the following definition from the Oxford Dictionary:

Noun, something gained, achieved, etc., an increase of possessions, etc., a profit,

advance or improvement, the acquisition of wealth.

[ibid, p. 147]

[321]

When asked about the above Oxford definition, Stock discouraged the

Board from adopting it, stating words like “advance” are too broad. If adopted, most

things would be considered “for gain”. Furthermore, this would stretch the definition to

include donations or outreach to the community, which it stated are not “for gain”. Its

argument continued:

… It's not intended to capture non-commercial activity. If we stretch the definition of gain

for the purpose of reaching a result, then you know we end up on a very slippery slope

where we could argue things like well if Stock Transportation is donating a bus for an

IWK parade which everybody appears to agree is perfectly reasonable, well in some way

is that not a gain?

Is it marketing, is it some sort of goodwill outreach to the community? Does it have to be

altruistic or are they benefiting from it in some way? I mean that would fall under a

broader definition of gain.

Most things would be gain. But I would expect that it would be common ground that the

use of the word "gain" in the Act is chosen specifically to connect to commercial activity.

[ibid, pp. 123-124]

… What I would counsel against is stretching that definition out so that effectively we can

-- it has no meaning so that we can say you know well if they're involved with charity work

that's marketing and you know maybe it advances the company because it increases

morale.

[ibid, p. 135]

[322]

Stock argued the reason why the MCD allows a company to, once or twice

a year, use its vehicles for charitable work without charging a fee, and why they will

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allow employees to be moved, is because the underlying thread of the legislation is that

it is outside of the MC Act and, therefore, outside the jurisdiction of the Board.

[323]

Although Stock argued, generally, for an interpretation of the word “gain”

in a commercial context, it did not provide a commercial definition. Stock further stated

it did not want to be pinned down to a specific definition of “gain”.

[324]

In seeking to understand the parameters of what movements would be

within the MC Act and which ones would not, Stock, without naming the case,

referenced the 1960 Decision of the United States Supreme Court regarding free

speech and pornography. The Court stated they could not codify what pornography

was, but ‘they would know it when they see it’. Stock argued the same should apply to

the Board in its approach to services “for gain”, so that the Board does not completely

close off any use of the public passenger vehicles for free.

[325]

In addressing some of the factual scenarios in this case, Stock argued that

even though Stock had a commercial contract arrangement with Newbridge for which it

did not have a license, it could then offer the same services for free. By providing them

for free, Stock’s use of its HMC brought it outside of the MC Act. He stated:

Chair:

And so the fact that they had a signed contract and were providing

absolutely exactly the same service[,] but without any compensation[,

movement] one is in and one is out of my jurisdiction and one is in and

one is out of the license.

Mr. Scott:

Not always but in that -- in the case that we're talking about yes I would.

[ibid, pp. 215-216]

[326]

Stock then argued it is not within the MC Act because it “… isn’t obviously

of any benefit to Stock…”. The Board noted Stock had taken this work away from a

licensed motor carrier that had provided the HMC services for Newbridge during the

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previous school year. Stock would benefit financially, if the HMCs were licensed to do

Newbridge’s requirements.

[327]

When the Board asked, what happens if Stock is not granted the license,

is it permitted to operate the services for free for the fall? He replied:

Chair:

-- that they're late, somehow they're going to be able to operate free

service for the fall.

Mr. Scott:

No and I wouldn't say that that's necessarily true. …

[ibid, p. 221]

[328]

When asked how it differed from any other discount, such as giving a

customer two free weeks of service, once again, Stock was unable to provide the Board

with the clear distinction of what would be within and what would be outside of the MC

Act and its jurisdiction. Once again, Stock resisted any defined parameters.

[329]

Stock also argued that when Mr. Phinney puts his son’s hockey team on

the bus, he wonders if anyone seriously considers it, in any meaningful sense, as being

“for gain” or “a commercial purpose.” However, if Mr. Phinney was to do this for 50

hockey trips a year, then it would come under the jurisdiction of the MC Act.

[330]

Stock resisted setting a defined number of trips, but argued the Board

should assign weight to the aggregate number in determining whether the movement is

for a commercial gain.

[331]

If Stock brought a number of vehicles into the Province and offered them

all for free, in an effort to compete against licensed motor carriers for cruise ship

services, in his opinion, that would be for a commercial purpose and for gain

(Transcript, January 30, 2017, p. 155).

[332]

The Board noted with Stock’s 1,600 employees, if each one was permitted

to transport a relative and friends, all four HMCs could be used 365 days of the year for

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free. When the Board asked how it achieves the object of sustainability under those

factual circumstances, Stock stated it does not matter because either the transportation

movement is within the MC Act or it is not.

[333]

When the Board asked about the 85,000 registered charities in Canada

and how the Board could possibly regulate the Industry with that number of potential

free services each year, the same answer applied.

[334]

On oral reply submissions, Board counsel re-emphasized the definition of

a “public passenger vehicle” does not have commas such that it is limited to when the

vehicle is being operated “for gain”. Rather, the key is whether it is operated by or on

behalf of a person carrying on “the business” of transporting passengers “for gain”.

Stock is in the business of carrying passengers for gain. Consequently, in Board

counsel’s submissions its vehicle must be licensed by the Board for all movements and

cannot be done for free.

(C)

Board Finding

Summary

1)

[335]

For the reasons set out below, the Board concurs with the submissions of

Board counsel. The proper interpretation of the MC Act is that a public passenger

vehicle is one that is operated by a person carrying on the business of a public carrier of

passengers on the highway for gain. The focus is on the person’s business operation

and does not vary by the nature of each individual movement of the vehicle. All

movements of a licensed vehicle operating on the highways of Nova Scotia, and into

other provinces extra-provincially, must be done in accordance with the MC Act,

Regulations, Rules, Orders and Licenses, trip permits, or temporary authorities.

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[336]

As Stock carries on the business of transporting people on the highway for

gain, all movements of its licensed vehicles are under the scope of the MC Act and are

regulated by the Board.

[337]

Specifically, the Board finds it is not the individual activity of a bus that

determines the scope of the MC Act and when its movements are regulated. The Board

rejects Stock’s arguments that a motor carrier may transport anyone it wants on the

highways, completely outside of the MC Act, by providing the service for free.

[338]

Stock argued the Board should adopt, as the meaning of “for gain” in the

MC Act, the Ontario Courts’ interpretation of the word “compensation” under its

legislation. As noted by Justice Dickson of the Supreme Court of Canada, as he then

was, in British Columbia Development Corporation v. Friedmann (Ombudsman), [1984]

2 SCR 447, p. 468, the interpretation of a word using different legislation for a different

purpose, does not assist the Court in interpreting the legislation before it. The Board

finds this is particularly the case when it is a completely different word. The Board

rejected this argument outright.

[339]

Without naming it, Stock also encouraged the Board to adopt the test used

in a 1960 United States Supreme Court case dealing with free speech and when

pornography becomes obscene. Rather than codify it, the Court said ‘We will know it

when we see it.’ The Board rejects this argument as well.

[340]

Every license issued under the Acts is restricted. The terms and

conditions vary. A company seeking authority to provide services in an area where

there are licensed motor carriers, if granted a license, may be more restricted than

those currently licensed to operate in the area.

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[341]

Stock argued the Board should adopt a narrow definition of gain that is

flexible, arguing the merits of the nature of the free services, such as for charities. No

one disputes the merits of providing services for charities or community services.

These may be licensed under trip permits, temporary authorities, or permanent license

authority after considering all relevant factors under s. 13. Restrictions are required

considering there are more than 85,000 registered charities in Canada. However, the

merits of the type of vehicle movement, themselves, are not determinative of the

interpretation or scope of the MC Act or the Board’s jurisdiction. The question is: “When

does a motor carrier need authority from the Board to operate its vehicles on the

highways?” On a full reading of the MC Act, to ensure quality, safe transportation

services in the Province, the Board finds that licensed authority from the Board is

required for all movements of the vehicles of the motor carrier.

[342]

The fact that the MCD may not enforce one or two free trips a year for a

charity like the IWK or transporting employees also does not determine the scope of

when the MC Act applies or the Board’s jurisdiction.

[343]

The Board finds Stock’s interpretation is not in keeping with the plain

language of the MC Act or its objects. The consequences of this interpretation include

safety, negatively affecting transportation services, impossibility to administer, which, in

effect, would render the MC Act useless.

2)

Analysis

Interpretation Act

When the Board is interpreting the MC Act, the directions in the Nova

(a)

[344]

Scotia Interpretation Act, R.S.N.S., 1989, c.23 as amended, apply and include:

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9

(1)

The law shall be considered as always speaking and, whenever any

matter or thing is expressed in the present tense, it shall be applied to the circumstances

as they arise, so that effect may be given to each enactment, and every part thereof,

according to its spirit, true intent, and meaning.

…

(5)

Every enactment shall be deemed remedial and interpreted to insure the

attainment of its objects by considering among other matters

(a) the occasion and necessity for the enactment;

(b) the circumstances existing at the time it was passed;

(c) the mischief to be remedied;

(d) the object to be attained;

(e) the former law, including other enactments upon the same or similar

subjects;

(f) the consequences of a particular interpretation; and

(g) the history of legislation on the subject.

[345]

Under s. 6(2), judicial principles of interpretation may be taken into

consideration, provided they are not inconsistent with the Interpretation Act:

6

(1) Except where a contrary intention appears, every provision of this Act applies

to this Act and to every enactment made at the time, before or after this Act comes into

force.

(2) Nothing in this Act excludes a judicial rule of construction that is applicable to

an enactment and not inconsistent with this Act.

[346]

The Supreme Court of Canada’s interpretation principle of reading the

legislation as a whole and giving it a broad, liberal and purposive interpretation to

ensure its object is met, is consistent with the provisions of s. 9 above and applies in

Nova Scotia.

(b)

Plain Reading of Definition

[347]

The Board concurs with Board counsel that there are no commas in the

definition of “public passenger vehicle” which isolates the vehicle and “for gain” from the

person’s business of carrying people on the highway. Consequently, to say the vehicle,

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when it is being operated to transport people for free, is not covered by the legislation is

not consistent with the plain reading of this definition.

(c)

Overview of MC Act

[348]

In reading the MC Act as a whole, an overview of the legislation includes

that no one is permitted to operate a public passenger vehicle on a highway without a

license issued by the Board allowing it to be so operated (s. 7(1)(a)). The vehicle

cannot be operated in a manner, at a place or for a purpose that is not authorized by the

license (s. 7(1)(b)) and the motor carrier shall only operate the vehicles designated in its

license (s. 7(2)).

[349]

In any licensing proceeding, the Board may consider any issue relevant or

material to the matter. The MC Act lists some of these, such as public interest, the

sustainability of the Industry, including whether there is a need for additional equipment

in the geographical area, and the general effect on other transportation services.

“Need” is referenced by asking whether there would be an “excess of requirements” in

the area, if the license were granted. Some of these issues are outlined in s. 13.

[350]

No one has the right to be issued a license. It is considered a privilege

(ss. 14 & 16). If a license is granted, it provides no perpetual or exclusive right (s.

10(1)).

[351]

The Board has the authority to refuse to grant an application, in whole or

in part (s. 14); to attach terms or conditions (s. 16); to specify routes or geographical

areas for the services (s. 27(1)(a)); and to set rates, fares, or charges, or minimum

and/or maximum charges (s. 27(1)(c)). Pursuant to s.30 of the MC Act, the Board has

the same powers to set rates as it has under the Public Utilities Act, R.S.N.S. 1989,

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c.380 (PUA). The Board does not use the PUA provisions for rate base or return on

rate base, but does take into consideration other sections, in particular, those requiring

just, non-predatory, or discriminatory rates, Kings Transit Authority, 2008 NSUARB 125,

paras. 24 to 32.

[352]

If a person is granted a license, it is only permitted to operate in

accordance with all of the terms and specifications of its license (s. 7(1)(b) and (2), and

s. 22). The latter reads:

Failure to comply

22 A motor carrier shall operate and furnish service in conformity with the license

issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

[353]

A motor carrier must charge its rates as fixed and approved by the Board

(s. 23(1)).

[354]

If a motor carrier wants to operate the vehicle for a purpose that is not

within its license, it can apply to the Board to seek that authority as a permanent

additional service to its license under s. 13. It can also seek authority by applying for a

trip permit of which six are permitted each year (s. 9). Finally, a motor carrier can apply

to receive a temporary authority for 90 days and, with Board approval, an extension of a

further 90 days (s. 9). Under any of these applications, a motor carrier must meet the

tests of the applicable provisions and the Board may set terms and conditions, including

restrictions on the number of movements; rates, if any, to be charged; number and

types of vehicles; and areas of service, etc.

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[355]

If a motor carrier does not provide service in accordance with its license,

the Board has the power to amend, suspend and/or cancel the license in its entirety.

The latter after a hearing (s. 19):

Variation or suspension or cancellation of license

19 (1) The Board may, at any time or from time to time, amend or suspend any

license or may, for cause, and after a hearing upon such notice as the Board may direct,

cancel any licence.

[356]

The Board has general power to give effect to the Rules and Regulations

and Decisions (s. 29):

Enforcement powers of Board

29 The Board shall have power and authority by general order or otherwise to

give effect to the rules, regulations or decisions respecting motor carriers, public

passenger vehicles and passenger vehicles other than public passenger vehicles.

[357]

The Board also has the authority, amongst others, to do any acts or things

necessary or advisable for the effective exercise of its powers (s. 27(1)(e)).

[358] The MC Act and Regulations provide numerous powers to the MCD

inspectors to ensure vehicles are safe for both passengers and the public.

[359] The MC Act does not include any exemptions for a licensed vehicle to be

operated for free or to operate outside of its License if an employee is on board.

(d)

Object

[360]

In reviewing the provisions of s. 9(5)(d) of the Interpretation Act, the Board

finds the MC Act does not state a specific object. The Board finds, as noted in previous

Decisions, the object and intent of the MC Act is to ensure there is safe, quality,

sustainable motor carrier services available for people in Nova Scotia.

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[361]

The Board further finds the legislation is unambiguous and clear. It

encompasses all aspects of a motor carrier’s operation of buses transporting people on

the highways. In giving the legislation a broad, liberal and purposive interpretation, the

Board finds when a person is in the business of carrying passengers on the highway for

gain, it is not allowed to operate its vehicle on the highway transporting people except

as authorized by its license.

[362]

The Board finds Stock’s arguments, in effect, isolate the definition of

public passenger vehicle from the remainder of the MC Act. Both the Interpretation Act

and the Supreme Court of Canada require the interpretation of a provision of the

legislation to be read in the context of the whole Act and not by itself. Furthermore, in

this case, the isolation is of a mere definition which has no context outside of the

provisions of the legislation. Therefore, the Board finds Stock’s argument on the

interpretation to be given to public passenger vehicle is not consistent with the objects,

purpose, structure and scheme of the MC Act.

(e)

History

[363]

Considering the history of the MC Act under s. 9(5)(a) of the Interpretation

Act, its predecessor was first enacted in 1911. Buses and motor carriers have been

regulated for more than 100 years. When the commercial trucking portion of the MC

Act was de-regulated in 1994, the Legislature did not de-regulate buses carrying people

on the highways.

(f)

Occasion and Necessity

[364]

The Board finds the occasion and necessity for the legislation as it

evolved was to ensure there was safe, quality motor carrier services in Nova Scotia.

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[365]

The Board has repeatedly found the sustainability of the Industry is a

significant component of the MC Act. There are factors affecting sustainability in Nova

Scotia, including that it has a small population dispersed over the Province except for

concentrations in the Halifax and Sydney areas and, to a lesser extent, places like Truro

and Yarmouth. The vehicles are expensive. For example, a new HMC costs in excess

of half a million dollars. In order for people to invest in the Industry, the Board is

authorized under the MC Act to regulate virtually every aspect, including the number

and types of vehicles, the terms and conditions of the license, the areas in which the

vehicles operate, rates, and any other terms and conditions the Board thinks are

necessary in order to achieve the object of the MC Act.

[366]

The Board has described the licensing parameters for each vehicle as

being akin to a seller’s district or territory. The population and type of vehicle will

influence the number of vehicles licensed in a particular area. As noted above, every

license is restricted. The terms and conditions vary. A company wanting to operate in

the area of another licensed motor carrier, if granted a license, may be very restricted.

Every licensed motor carrier, even those with broad authority and 50 or more vehicles,

must apply to add one more vehicle to its license, and must meet the tests under the

MC Act for all of the reasons stated in this Decision.

[367]

Sustainability is noted as the first factor under s. 13(a). The Board is to

consider whether the granting of the license would result in an excess of equipment. If

there is an excess of equipment, the amount of work and revenue available to licensed

motor carriers is reduced. This will likely similarly reduce the motor carriers’ ability to

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continue providing services and/or impact the quality of those services and, in particular,

safety.

(g)

Consequences

[368]

Another consideration is the consequences of a particular interpretation (s.

9(5)(f)). The Board will discuss the consequences of Stock’s interpretation under the

following three main headings:

1. Safety;

2. Negative impact on transportation services; and

3. Administration.

[369]

Before discussing these, the facts of this case help to illustrate the

consequences that can flow from the interpretation Stock encourages the Board to

adopt.

[370]

Stock’s parent company is the largest bus company in the world. Stock is

the largest bus company in Nova Scotia. Stock operates more vehicles in the Province

than all the other licensed motor carriers combined.

[371]

Stock has the ability to bring to Nova Scotia as many vehicles as it wants.

As Mr. Phinney stated, offering services for free could include Stock providing vehicles

to service all cruise ships’ transportation requirements for free.

[372]

Furthermore, Stock has the ability to offer a large volume of vehicles for

free. Once again, as Mr. Phinney testified, ‘he did not care if the HMCs made money’;

Stock Decision, para. 21.

[373]

Consequently, Stock has the capacity to provide a very large volume of

transportation services for free.

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[374]

As noted above, a motor carrier can apply under the MC Act for each of

the types of movements Stock recommends are capable of being done for free.

Depending upon the facts and circumstances of each type of application, a motor carrier

may receive authority through a permanent amendment, trip permits, or temporary

authorities, with or without specific terms, conditions or restrictions, after considering s.

13. For example, the MC Act allows a motor carrier to request six trip permits per year.

These may be used, for example, for one or two charity movements as well as staff

movements when reallocating school buses. Tri-Star has on its MC License authority to

transport the Junior A Midget hockey team it owns for free. Its License reads:

D(1) RATES

No fees will be charged for the transportation of the Yarmouth Jr. "A" Mariners Hockey

Club.

1.

Safety

[375]

The consequence of Stock’s interpretation would mean that a vehicle

solely designated for free trips and outside the scope of the MC Act, would never be

inspected under the Act; not the semi-annual inspections, spot checks or random

inspections.

[376]

For example, with more than 85,000 registered charities in Canada, Stock

would be capable of doing thousands of movements on the highways outside the scope

of the MC Act. Similarly, if the presence of an employee is on board, with 1,600

employees, Stock, once again, could do thousands of movements of these vehicles on

the highways outside of the scope of the MC Act and any inspections under the MC Act.

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[377]

Safety is also impacted when a licensed vehicle is within the MC Act for

some movements and outside of the MC Act when the movement is operated for free.

These safety risks are illustrated by an incident which occurred in this case. In August

2016, the MCD contacted Stock to do a random inspection of its HMC because of a

complaint. Stock was going to operate the vehicle transporting people on the highway,

that under its interpretation would be outside of the scope of the MC Act. Under Stock’s

interpretation Stock would have been permitted to use the vehicle for that service and

delay the inspection by the MCD.

[378]

The inspection showed 15 defects, three relating to the airbrakes, that had

to be fixed before the vehicle was permitted to be operated on the highway again. It

was not repaired, re-inspected and placed back on the License for almost one month.

[379]

As the Director of the MCD stated, she would not permit the vehicle

inspection to be delayed for safety reasons. If there were found to be any defects, the

vehicle may not have been safe to drive.

[380]

Unsafe HMCs can cause injury and harm to those riding on the vehicle.

They are massive vehicles and can cause serious harm or death to others travelling on

the highway.

[381]

The Board finds the consequence of Stock’s interpretation impacts safety;

failing to meet one of the main objectives of the MC Act.

2.

Negative Impact on Transportation Services

[382]

This relates to the sustainability of the licensed motor carriers and the loss

of business and revenue, if services that are provided for free are outside of the scope

of the MC Act.

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[383]

Once again, the specific facts of this case are illustrative of the significant

consequences of Stock’s interpretation.

[384]

As Mr. Phinney testified to in Stock’s amendment hearing, its customers

are the same as those of the existing licensed motor carriers in the Province. This is

best illustrated by the school bus services. The Halifax Regional School Board and

Newbridge have been customers of other licensed motor carriers for their HMC

services.

[385]

School bus services must be provided by school buses. These vehicles

must be painted yellow and have specific safety features, like a back door exit. They

are permitted to take children to and from school and to school board sponsored extra-

curricular activities. When school boards want HMC transportation, they use the

licensed motor carriers authorized by the Board to operate those vehicles. Licensed

motor carriers rely on this work from the school boards. It is essential revenue, outside

of the tourism season, when they must continue to make payments on these costly

vehicles.

[386]

As noted above, Mr. Phinney stated he did not care if Stock’s HMC made

any money. Without first seeking a license from the Board, Stock offered these four

HMCs to service the Halifax Regional School Board as a bonus added within its school

contract. Mr. Phinney also testified the HMC services were a significant reason why

Stock was awarded the HRSB school bus contract.

[387]

This took work away from the licensed motor carriers who had done

HRSB HMC services in the past.

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[388]

The Board notes that under any definition, Oxford Dictionary or

commercial, Stock has received a significant gain of the award of a large school bus

contract, by offering HMC services virtually for free.

[389]

The Board concurs with Board counsel that providing services for free is a

form of discount.

[390]

As noted above, licensed motor carriers were affected by the 2008

recession from which they are seeking to emerge. As economist Michael Gardner

opined in the Discount Decision, any form of discount is a zero-sum gain. This means

anyone achieving work through a discount is taking revenue and work away from

another motor carrier. In the school bus contract example above, Stock’s gain was also

a detriment to the licensed motor carriers that previously provided these services to the

school board.

[391]

The Board finds the consequence of Stock’s interpretation of the scope of

the MC Act and what services are in and out, and which may be provided for free, will

have all the same negative effects on motor carriers and the transportation services

they provide as noted by the Board in the Discount Decision. All forms of discounting

negatively affect individual motor carriers and the Industry as a whole. It is why the

Board rendered a specific decision in relation to discounts and eliminated or restricted

them.

3.

Administration

[392]

Stock encourages the Board to adopt a definition of gain that restricts the

scope of the MC Act to exclude all services that are provided for free unless the

circumstances or aggregate of the number of trips used in this manner would be

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considered, in the commercial context, for gain. No commercial definition was

advanced nor does Stock advocate specific parameters, but rather states the Board

should adopt the test “the Board will know it when it sees it.”

[393]

The consequence of Stock’s interpretation is a lack of clarity and

uncertainty such that motor carriers would not know when they were operating within

their licenses and when they were not.

[394]

Furthermore, it would require an analysis of each individual trip movement

of every vehicle operating on the highways in the Province. For each movement, there

would need to be an analysis of whether it fits a vague definition of commercial gain.

The sheer volume of analysis would make it impossible to administer.

[395]

Once again, the facts of this case provide a good illustration of the

consequence of Stock’s interpretation. Stock, for free, took the officials of the Halifax

Regional School Board to Mr. Phinney’s cottage for a lobster party. Mr. Phinney did not

care if the four HMCs generated any money for Stock on the HRSB contract. The

inclusion of those vehicles within its RFP response helped it secure its contract. Stock

claims the free trip to Mr. Phinney’s cottage is outside of the scope of the MC Act, even

though, once again, this was clearly for a commercial gain for Stock.

[396]

For all of the above reasons, the Board finds the consequences, if Stock’s

interpretation were adopted, is that the MC Act is not capable of being administered.

Furthermore, the Board finds an Act to regulate services that cannot be administered is

useless. Stock’s interpretation would render the MC Act useless.

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3)

Conclusion

[397]

In conclusion, after reading the legislation as a whole and giving it a

broad, liberal and purposive interpretation, the Board finds the language of the MC Act

is unambiguous and clear. The Board finds the scope of the MC Act applies to

businesses that are carrying passengers on the highway for gain. Each vehicle

operated by the motor carrier must do so in accordance with its license and only with

the vehicles designated on its license. Even though Stock brought fresh eyes and a

fresh interpretation in January of 2017, to the 100-year regulation of public passenger

vehicles, the Board finds Stock’s interpretation is not consistent with the plain language

of the legislation. After considering the consequences of its interpretation, as well as

the other provisions of s. 9, the Board finds, most importantly, that Stock’s interpretation

will not achieve the objects of the MC Act of safe, quality motor carrier services in Nova

Scotia.

[398]

falls within the scope of the MC Act and the Board’s jurisdiction.

[399] Stock acknowledges it is in the business of carrying passengers on the

The Board finds every movement of a licensed vehicle on the highways

highway “for gain”. As a consequence of the Board finding that “gain” relates to the

business, it is not necessary for the Board to determine a specific definition of “for gain”.

If the Board were required to make a determination, gain as an undefined term is to be

given its ordinary meaning which the Board finds would be in accordance with the

definition of the Oxford Dictionary. The Board concurs with Stock that this definition

would include every movement of a motor carrier’s licensed vehicle. Consequently,

using the Oxford Dictionary definition of gain, the Board would come to the same

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conclusion; that is, all movements of the vehicles carrying passengers on the highway,

including those for free, are within the scope of the MC Act and the Board jurisdiction.

2.

Charge 1. Stock using its HMC to transport passengers from and/or

to the Province of Nova Scotia contrary to section 4 of the Motor

Vehicle Transport Act

[400]

[401]

The alleged breaches 1, 2 and 3 overlap.

Section 4 of the MVT Act reads as follows:

Operation without licence prohibited

4 Where in any province a licence is, by the law of the province, required for the

operation of a local bus undertaking, no person shall operate an extra-provincial bus

undertaking in that province except under and in accordance with a licence issued under

the authority of this Act.

[402]

Under the MVT Act, a motor carrier may obtain a license under the same

regime that exists in Nova Scotia and be subject to the same terms and conditions:

Issue of licence

5 The provincial authority in each province may, in its discretion, issue a licence to a

person to operate an extra-provincial bus undertaking in the province on the like terms

and conditions and in the like manner as if the extra-provincial bus undertaking were a

local bus undertaking. [Emphasis added]

[403]

Pursuant to the MC Act, no one is permitted to operate a public passenger

vehicle on the highways without holding a license from this Board and may only operate

those vehicles designated in the license (s. 7(2)) which reads:

7

(2) No motor carrier shall operate a public passenger vehicle under the license

issued to him other than a public passenger vehicle designated in such license.

[Emphasis added]

[404]

In combination with the Federal MVT Act, no one is permitted to operate a

public passenger vehicle on the highways extending from Nova Scotia and into other

provinces or the reverse without being licensed to do so.

[405]

During Stock’s Amendment hearing, it requested to amend its Applications

to only use its HMC for overflow cruise ship services in Nova Scotia. Stock withdrew its

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application for the HMC to be designated on its XP License. Consequently, Stock had

no authority under s. 4 of the MVT Act to transport any passengers to any other

province from Nova Scotia or the reverse using its HMC.

[406]

In the Stock Decision, the Board informed Stock that it must operate within

its Licenses. The vehicle was not licensed to do extra-provincial movements. Without

the restrictions, the vehicle would not be licensed for any charters. It was very

important that Stock strictly adhere to the restrictions for the use of the HMCs.

[407]

On May 18, 2016, Stock had one of its HMCs inspected, plated and added

to its MC License 595.

[408]

Stock immediately used the HMC to take 15 to 20 passengers from Nova

Scotia on a five-day trip to Montreal and return.

[409]

Stock also operated its HMC on the highways to transport people extra-

provincially from Nova Scotia on numerous occasions from May to November, 2016.

[410]

Board counsel argued there is clear evidence the HMC did transport

people across the borders of Nova Scotia when it did not have an extra-provincial

authority to do so. These trips included:

1. Taking a hockey team from Dartmouth to Montreal and return;

2. Taking staff and school board officials from the Halifax Regional School Board to

New Brunswick; and

3. Transporting students of Newbridge Academy to Saint John, Boston, Quebec,

and Ontario.

Specifically, in relation to the latter, there were multiple trips done for Newbridge out of

Province.

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[411]

Board counsel noted no trip permits or temporary authorities were

requested for any of these trips.

[412]

Stock agreed that Stock holds no other license for its HMCs except the

very restricted MC License 595 to be used for overflow cruise ship services. It does not

contest that the extra-provincial movements were made with the HMC. Stock’s

argument relates to the scope of the MC Act and, therefore, also the scope of the MVT

Act as outlined above.

[413]

The Board, having rejected Stock’s arguments, finds Stock used its HMC

to transport passengers from and/or to the Province of Nova Scotia contrary to s. 4 of

the MVT Act.

[414]

The Board also finds Stock operating contrary to its XP License results in

breaches of all other related laws, Rules and Regulations such as failing to display an

XP plate on the vehicle, contrary to Regulation 14(2).

3. Charge 2. Stock using its HMC to transport students from

Newbridge Academy upon a highway within the Province of Nova

Scotia, contrary to s. 7(1) of the MC Act

[415]

Section 7.1 reads:

License and compliance required

7

(1)

Except as herein provided, no person, either as principal or by an agent

or employee, shall operate a public passenger vehicle upon a highway within the

Province

(a) without holding a license issued by the Board allowing the vehicle to be so

operated; or

(b) in a manner, at a place or for a purpose that is not authorized by the terms of

his license. [Emphasis added]

[416]

The Board finds s. 7(1) of the MC Act is very specific: No one is permitted

to operate a public passenger vehicle on the highways of Nova Scotia except as

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provided in its License. Stock’s Licenses and the MC Act both require the motor carrier

to operate in conformance with its License, the Acts, Regulations, Orders, Rules and

Schedules.

[417]

When Stock requested to amend its Applications to restrict the use of its

HMCs to overflow cruise ship work only, Stock specifically stated it would not use the

HMCs for servicing schools. In Show Cause proceeding, Mr. Phinney confirmed his

testimony:

The Chair:

My last question, Mr. Phinney, you knew at the time of your -- the

hearing of your applications back in July of 2015, that you would agree

that these highway motor coaches would not be used for school --

extracurricular school work. You knew that; correct?

Mr. Phinney:

Correct.

[Transcript, February 1, 2017, pp. 652-653]

[418]

Stock’s License under Schedule F(4), specifically, restricts the HMC from

transporting students:

… The highway motor coaches may not be used for any other services, including but not

limited to, for schools, school children, charters, and tours; and are further subject to the

terms and conditions of the License. [Emphasis added]

[Exhibit S-30, p. 17]

[419]

In the Stock Decision, the Board informed Stock it was specifically

prohibited from doing any charter work for anyone, outside of the overflow cruise ship

service, including for schools, as they were currently using the existing licensed motor

carriers for their HMC needs.

[420]

Immediately following the issuance of the Stock Decision, Mr. Phinney, in

a series of emails with Ms. Aisthorpe, wanted to place the HMCs on Stock’s school bus

licenses. Ms. Aisthorpe, quoting the Decision, informed Mr. Phinney that Stock could

not use the HMCs to transport students.

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[421]

Stock transported students for Newbridge in its HMC from September to

approximately mid-November, 2016.

[422]

Board counsel argued the above is very clear evidence the HMC was

used by Stock to transport students from Newbridge when it did not have a license to do

so. Counsel also noted Stock did not seek to obtain trip permits or a temporary

authority under s. 9 of the MC Act.

[423]

Stock did not contest that the Company had used its HMC to transport

students from Newbridge upon a highway within the Province of Nova Scotia. Stock’s

argument against this charge, as the one above, was that this service was “not for gain”

and, therefore, outside of the jurisdiction of the Board. The other arguments raised by

Stock go to the remedy the Board determines is appropriate for the breaches which will

be discussed later in this Decision.

[424]

Having rejected Stock’s interpretation of the MC Act, the Board finds Stock

used the HMC to transport students from Newbridge Academy on the highways within

the Province of Nova Scotia contrary to s. 7(1) of the MC Act.

[425]

Stock also used other school and activity buses to transport students of

Newbridge and other schools outside of its Licenses, which will be addressed under

other breaches in Charge 8.

4. Charge 3. Stock using its HMC and its [school bus] Vehicle Unit

No. 25486 to transport students from Newbridge Academy free of

charge, contrary to s. 22 of the MC Act

[426]

Section 22 reads as follows:

Failure to comply

22 A motor carrier shall operate and furnish service in conformity with the

license issued to him and in conformity with this Act and all orders, rules, regulations and

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schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

[427]

Board counsel states that under this charge Stock not only used its HMC

for a service it was not authorized to provide, but it also acted contrary to s. 22 of the

MC Act by failing to charge its rates outlined in its License by operating the services for

free. Operating for free extended to Stock’s use of its school bus Vehicle Unit No.

25486 to transport Newbridge students between its two facilities contrary to its MC

License 595.

[428]

The facts of this breach are not in dispute. As noted above, there is

overlap between charges 1, 2 and 3. Stock used its HMC to transport students from

Newbridge when its License prohibited the transportation of students and was solely

restricted to be used for overflow cruise ship service. Furthermore, the services were

provided for free. The latter issue will be discussed in Charge 6.

[429]

In the Stock Decision, the Board informed Stock that it is required to

charge the rates set by the Board. The Board found some of Stock’s proposed rates to

be low and potentially predatory. The Board then set specific rates for its charter

vehicles. For the reasons set out in Charge 6, the Board finds that the free services

operated by Stock were contrary to the rates set by the Board in Stock’s Licenses.

Furthermore, the Board agrees with Board counsel that providing services for free is a

form of discount and has the same negative impacts on the Industry as other discounts.

[430]

With respect to the use of the school bus Vehicle Unit No. 25486, the facts

show that Senior Inspector Penney prepared a Roadside Inspection Report dated

September 27, 2016. He noted the vehicle, owned by Stock, was being used to shuttle

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students of Newbridge between its two locations, from East Hants to Sackville. On

September 28, 2016, he confirmed their conversation in an email to Ms. Coldwell in

which she stated the trips were provided for free. Once again, both of those services

were originally a business contract between companies, Stock and Newbridge, the

former for gain.

[431]

Stock’s argument was the same as for the first two charges; that is, as the

services were not provided “for gain” they were outside the scope of the MC Act, and,

therefore, also outside of the MVT Act and the Board’s jurisdiction. As these

movements did not require licensing authority, therefore, Stock was not in breach of its

License.

[432]

Providing charter services for Newbridge’s hockey teams with the HMC

and a school bus for its shuttle services for free, the Board finds Stock has used its

HMC and school bus Vehicle Unit No. 25486 to transport students from Newbridge free

of charge, contrary to s. 22 of the MC Act.

5. Charge 4. Stock’s failure to make the HMC available or use the

HMC for the purposes set out in the Licenses

[433]

Stock’s License reads:

F(4) SPECIALTY IRREGULAR PUBLIC PASSENGER CHARTER SERVICE

The highway motor coaches are restricted to the transportation of cruise ship passengers

under subcontract to another licensed carrier in the Province of Nova Scotia from any

port between May to November as a last resort, when there are no other licensed

vehicles available with a seating capacity of 36 seats or greater, after compliance with the

notification chart below:

Charter Period

Notification Date

Subcontract Date

May 1 – June 30

July 1 – Aug. 31

Sept. 1 – Oct. 31

Apr. 1

June 1

Aug. 1

Apr. 16

June 16

Aug. 16

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Nov. 1

Oct 1

Oct. 16

The highway motor coaches may not be used for any other services, including but not

limited to, for schools, school children, charters, and tours; and are further subject to the

terms and conditions of the License.

Effective this 29th day of April, 2016.

[434]

In the Stock Decision, the Board informed Stock that the HMC was only

licensed to do overflow cruise ship services. It also provided a schedule of notification

to determine its HMCs would be the last used; subcontracting with other motor carriers

and set specific rates for cruise ship services.

[435]

There are very few companies that provide services to cruise ship

operators. Absolute/Ambassatours is one.

[436]

Mr. Buckland testified he provided to Stock the initial dates Ambassatours

required additional vehicles. The following are the requested dates after Stock’s HMC

was inspected and added to the License on May 18, 2016:

June 29^th

September 01, 05, 08, 11, 12, 15, 16, 19, 22, 23, 25, 26, 28, 29 & 30

October 04, 05, 06, 07, 11, 13, 14, 20 & 28

[Exhibit S-11, Tab F, p. 68]

[437]

numerous occasions for overflow cruise ship services and had not received responses.

[438] From the time of receiving the requests to the end of the cruise ship

Ms. Dempster emailed Ms. Aisthorpe stating they had contacted Stock on

season in 2016, Mr. Phinney testified Stock never informed Ambassatours of any dates

its HMC was available for cruise ship services.

[439]

Furthermore, Mr. Phinney testified that, at no time, did Stock provide a

HMC to Absolute in 2016.

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[440]

Mr. Buckland testified it could have used Stock’s HMCs during the 2016

cruise ship season.

[441]

During part of September, 2016, Stock’s HMC required repairs before it

could operate again. This resulted from an inspection on August 18, 2016, which

included three deficits in its brake system. The vehicle was not repaired, re-inspected

or available for service until September 18, 2016. There are numerous dates before

and after this when Stock’s HMC was needed for overflow cruise ship services.

Furthermore, on some dates it was used instead for unlicensed extra-provincial

movements.

[442]

On October 19, 2016, the Board sent a letter to Stock informing its

Applications would be suspended until hearing from Board counsel as Stock may not

have operated in accordance with its Licenses.

[443]

Mr. Phinney stated he received a call from Coach Atlantic sometime in

October to do a cruise ship service. He stated Stock attended at the dock and did one

cruise ship service for Coach Atlantic. Stock did not issue an invoice.

[444]

In addition to reviewing the above facts, Board counsel emphasized the

tremendous lack of evidence on this one movement for cruise ship service for Coach

Atlantic. In particular, in its IR Response, Stock puts itself as the contact person rather

than anyone from Coach Atlantic. No date is provided either. Furthermore, Board

counsel argued that considering this was a Show Cause hearing in which Stock may

lose its License, and this is the only movement within its authority, one would have

expected Mr. Phinney would have checked for this information before appearing before

the Board.

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[445]

The Board concurs. Mr. Phinney provided no evidence to support his

statements. There was no record of a telephone conversation, no itinerary, no dispatch

documentation and no invoice. There were no drivers’ pre-trip inspection reports or the

drivers’ daily log books provided. Mr. Phinney came to this Show Cause hearing

without knowing the date, stating he would have to check. Stock also did not call a

witness from Coach Atlantic. The daily log books provided after the hearing, pursuant

to Stock’s Undertaking, also do not show any movement with the HMC for a cruise ship

service in October, 2016.

[446]

Stock has a computerized system. Itineraries for all movements of its

vehicles are inputted into its computer program. Mr. Phinney testified he did not do this

for any movements of Stock’s HMC. In fact, Mr. Phinney was evasive about Stocks

computerized system, until Board counsel drew his attention to Stock’s Charter

Undertaking, in which it referenced Stock’s computer program.

[447]

Mr. Phinney’s reason for not putting any of the HMC information into its

computer program was because they were not “legitimate bookings”. This alleged

cruise ship service for Coach Atlantic was the only HMC service within Stock’s licensed

authority. This movement was a “legitimate booking” and, therefore, should have

followed Stock’s protocol and processed in Stock’s computer system.

[448]

Stock argued that not providing services or responding to Absolute should

not be seen as Stock not providing services for which it was licensed. Rather, he

argued that as Stock provided its vehicle for one day for overflow cruise ship services,

Stock has made its vehicle available for the services for which it was licensed.

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[449]

Although this will be explained in more detail under the next charge, the

Board finds Mr. Phinney, deliberately, did not follow Stock’s regular processes for

movements of the HMC, including inserting the itineraries or vehicle dispatch

information into its computer system. The Board finds this eliminated information about

the HMCs. This made it more difficult for the MCD, Board counsel, and the Board to

know the movements of this vehicle. For example, but for Newbridge’s Facebook page,

the use of the HMC for Newbridge in September to Saint John would not have been

known.

[450]

As noted above, the Board found Mr. Phinney lacked credibility. On the

evidence before the Board in this proceeding, without any corroborating evidence, the

Board does not believe Mr. Phinney’s testimony that Stock did this one cruise ship

movement for Coach Atlantic.

[451]

Even if the Coach Atlantic movement occurred, the Board finds Stock did

not make its vehicle available for overflow cruise ship services for the dates in which it

could have been used by Ambassatours during the busiest part of Nova Scotia’s

tourism season for the days it was operational from June through to October, 2016.

[452]

Stock argued the MC Act does not provide any positive obligation on a

motor carrier to provide the services for which it is licensed. He stated the only section

referencing providing services is s. 18(a) which reads:

Cancellation of license

18

Notwithstanding Sections 19 and 24, the Board without public hearing may

(a)

cancel any license authorizing the operation of a public passenger

vehicle if the Board is satisfied that the licensee has not, within sixty days of the

issue of the license, provided the service authorized by the license to be provided

by him;

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[453]

In this case, he argued, Stock only provides cruise ship service on an

overflow basis; therefore, the 60 days does not apply to Stock’s restricted License. If

the 60 days does not apply to Stock, he argued, the remainder of the provision does not

apply either. He concluded, it would be too wide an interpretation of the legislation to

assume from this section that a motor carrier has a positive obligation to operate the

licensed services.

[454]

The Board finds, once again, it is very important to read the Act as a

whole, when seeking to interpret individual provisions such as s. 18(a). Section 22

begins with:

Failure to comply

22

A motor carrier shall operate and furnish service in conformity with the license

issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, … [Emphasis added]

[455]

Under ss. 24(1), a motor carrier is not permitted to discontinue or abandon

any service without an order of the Board:

Abandonment of service or cancellation of license

24

(1)

No motor carrier shall abandon or discontinue any service provided for in

his license for the operation of a public passenger vehicle without an order of the Board

which shall be granted only after a hearing upon such notice as the Board may direct.

[Emphasis added]

[456]

The Board finds that in reading the MC Act as a whole, and giving it a

broad, liberal and purposive interpretation, that it places a positive obligation on a motor

carrier to operate and furnish the services for which it has been licensed. Any

abandonment or discontinuance of that service requires an Order of the Board.

[457]

The Board further rejects Stock’s argument that as the 60 days does not

apply to Stock, s. 18(a) does not apply to the company. The Board has provided longer

time periods for motor carriers to commence their services, and in Stock’s case more

than 60 days would have been reasonable.

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[458]

However, the motor carrier is still to furnish the services within its License.

In the Stock Decision, the Board stated there would not be much work for the HMCs,

and if Stock decided it did not wish to provide the overflow cruise ship service, it could

apply to abandon the service. This was not done.

[459]

The Board also finds an interpretation that a motor carrier does not have a

positive obligation to provide the services for which they have been licensed, does not

meet the objects and intent of the MC Act of ensuring safe, quality, sustainable motor

carrier services in the Province. Considering a license is similar to a sellers’ district, the

system does not work if one of the sellers will not sell its services to the people in its

licensed area. The consequence of this interpretation is that the entire system does not

work. As an illustration, the Board restricts the number and types of vehicles and

services to ensure there is not an excess of equipment, s. 13(a). The Board could not

analyze the number and types of vehicles which should be licensed, if those that are

given authority do not need to provide the services.

[460]

Furthermore, if a motor carrier wants to restrict its license to only operate

its services at its discretion and pleasure, it must request that in its application. For

example, this has been done by motor carriers in seeking authority to offer discounts.

Stock did not seek that type of provision when requesting to restrict its license to use its

HMCs for overflow cruise ship services.

[461]

If such a request were made, it would be considered in the same way as

any other request; that is, pursuant to the relevant provisions of s. 13 of the MC Act.

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[462]

The Board finds Stock failed to make its HMC available for the purposes

set out in its License. Stated another way, Stock failed to operate and furnish service

with its HMC for overflow cruise ship services in conformity with its License.

6. Charge 5. Stock resisting or willfully obstructing an inspector in

the execution of his or her duty or his or her exercise of powers

by not cooperating and providing all requested information to the

Motor Carrier Division, Department of Transportation and

Infrastructure Renewal, contrary to s. 35(2) of the MC Act

Power to stop vehicle and require inspection

35

(2)

A person who resists or wilfully obstructs an inspector in the execution of

his duty or the exercise of his powers under this Act or the regulations is guilty of an

offence against this Act and liable to the penalties prescribed by Section 37.

[463]

The inspectors are able to enforce the provisions of the MC Act and

Regulations, inclusive of operating motor coaches within the terms and conditions of its

license under s. 7(1) as outlined in s. 34, which reads as follows:

Inspector

34

(1) The Minister may appoint a person or persons in the public service to act as

inspector or inspectors under this Act.

(2) The inspector or inspectors shall enforce the provisions of this Act and the

regulations that pertain to the conduct of motor carriers and shall take all necessary

measures under this Act to prevent the operation of any motor carrier without such motor

carrier having first complied with the terms and provisions of this Act and the regulations,

and shall perform such other duties as the Minister may from time to time determine.

[464]

The Board finds this charge can be exemplified by the following two

incidents: (a) Montreal Trip; and (b) Saint John Trip.

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(A)

Montreal Trip

[465]

The Board finds the facts of this charge are that Stock’s HMC received its

satisfactory inspection on May 18, 2016, and was placed on the MC License 595 to do

the service for which it was authorized.

[466]

Stock immediately used the HMC on a five-day extra-provincial trip

starting in Dartmouth, Nova Scotia. Mr. Phinney’s two sons were transported on that

vehicle, along with approximately 15 to 20 other hockey players from Nova Scotia and

their hockey coach, Mr. Flynn. They were picked up at three different locations in Nova

Scotia. Mr. Phinney also went to Montreal for this five-day trip, but was not on the

HMC.

[467]

On June 7, 2016, Inspector Parker of the MCD requested information

about the extra-provincial transportation using Stock’s HMC. Stock did not provide the

information to Inspector Parker.

[468]

On June 10^th, Ms. Aisthorpe sent a detailed email to Mr. Phinney

requesting information on ‘movements on their recently inspected HMC that travelled to

Quebec on possibly two occasions’. Specifically, she asked he include documentation

for this service in his response:

Please provide corresponding documentation for each extra provincial transportation

service provided.

Documentation should include, but is not limited to:

- Driver information (name, master#, contact phone#, etc.)

- Driver Hours of Service (HOS) Log Book (i.e. outside 160 kms of home base)

- Vehicle pre-trip sheets

- Trip itinerary & contact (or, general details outlining the nature of the transportation

offered)

- Invoice issued (if applicable).

[Exhibit S-5, Tab 6, p. 71]

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[469]

Ms. Aisthorpe’s request was to determine compliance with its License

pursuant to s. 22 and s. 34 of the MC Act, which she quoted in the email. The

information was to be provided by no later than June 30.

[470]

By June 30, no information was provided. Rather, Mr. Phinney wrote to

her stating he was gathering the information, requested a one week extension, and

asked for specific dates twice. His email includes:

… I wish you could be more specific, do you have specific dates that you are looking for?

… In the meantime if there are specific dates? It might speed up the process. [Emphasis

added]

[Exhibit S-5, Tab 6, p. 71]

[471]

Mr. Phinney testified:

Mr. Outhouse: Okay. You never did provide that information.

Mr. Phinney:

Mr. Outhouse: Now, you knew one of those trips was to Montreal.

Mr. Phinney: Correct.

Mr. Outhouse: And you knew the date of that trip.

Mr. Phinney: Yes, I did.

Mr. Outhouse: Your son, or possibly two sons, were on that trip?

Mr. Phinney: Yes.

Mr. Outhouse: Did you go to Montreal?

Mr. Phinney: Yes, I did.

Mr. Outhouse: Did you go on the bus?

Mr. Phinney: No, I did not.

No, I did not, sir.

Mr. Outhouse: We understand – I understand from the evidence given by Mr. Flynn that

he did go on the bus.

Mr. Phinney:

Mr. Outhouse: So you knew about that trip?

Mr. Phinney: I did, yes.

Mr. Outhouse: So why were you asking for dates?

Mr. Phinney: She asked for two possible trips to ---

Mr. Outhouse: Two possible trips, yes.

I believe so, yes.

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Mr. Phinney:

Mr. Outhouse: Did you think there were two trips to Quebec?

Mr. Phinney: No.

Mr. Outhouse: You knew there weren’t.

Mr. Phinney: That’s right.

Mr. Outhouse: You knew there was on trip.

Mr. Phinney: Correct.

Mr. Outhouse: And you knew the date of it.

Mr. Phinney: I did know the date of that one trip, yes.

[Transcript, February 1, 2017, pp. 492-494]

Right. That’s correct.

[472]

Board counsel reviewed the evidence of Ms. Aisthorpe’s requests,

emphasizing it came after the information had been requested by the Inspector. Mr.

Phinney’s sons were on the hockey trip. He knew about the trip. Board counsel argued

Mr. Phinney knew the date of this trip when he requested the same of Ms. Aisthorpe.

Board counsel also argued that despite the circumstances that followed after those first

two initial requests, including personal circumstances and it slipping Mr. Phinney’s mind,

the point is he never provided the information.

[473]

The Board finds that Mr. Phinney and, therefore, Stock, could have

informed Inspector Parker on the date of his request (July 7, 2016) of the details of the

trip, the vehicle, including itinerary, and passengers being transported.

[474]

The Board further finds in relation to Ms. Aisthorpe’ s request, once again,

Mr. Phinney had the information of the details of the trip. A lengthy time was provided

by the MCD. The known information was not provided by June 30.

[475]

The Board finds, from the facts of this case, that Stock’s failure to provide

the requested information to Inspector Parker by June 7, 2016, and to Ms. Aisthorpe by

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June 30, 2016, was resisting an inspector in the execution of his/her duty and his/her

exercise of power contrary to s. 35(2) of the MC Act.

[476]

The Board further finds that Mr. Phinney’s request for specific dates on

June 30, 2016, constituted willfully obstructing an Inspector contrary to s. 35(2) of the

MC Act.

[477]

The Board finds that from the evidence before it in this proceeding that Mr.

Phinney did nothing to collect the information noted on Ms. Aisthorpe’s list including, for

example, the drivers log books or the pre-trip inspection reports. This, as well, the

Board finds constitutes resistance contrary to s. 35(2).

[478]

On July 8, 2016, Mr. Phinney stated personal circumstances prevented

him from responding. Ultimately, Stock never provided the information to the MCD.

Stock argued the MCD did not make a further request. The Board finds it is not up to

the MCD to continue to request the information being sought. The Board further finds

never providing the information is resistance contrary to s. 35(2).

[479]

These incidents prove a breach of this charge. However, Stock also

provided false information to a customer to be provided to the MCD as outlined in the

Saint John trip below.

(B)

On September 24, 2016, Stock provided transportation services to

Newbridge using its HMC.

Saint John Trip

[480]

[481]

The MCD had Stock’s response to Newbridge’s Tender which included a

schedule of its hockey trips. The schedule showed a September 17-18, 2016, from

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East Hants to Charlottetown/Summerside, PEI. On September 24, 2016, a trip from

East Hants to Amherst, Nova Scotia.

[482]

On September 26, 2016, Ms. Aisthorpe contacted Mr. MacEachern by

phone and then confirmed by email asking for details about these two trips:

Good afternoon Trevor-

Further to our recent discussion and by way of follow-up, please provide the Division

details (e.g. carrier name, itinerary, invoice, etc.) on the coach transportation services

required by the NewBridge Varsity Hockey team(s) on:

- September 17 - 18 from the East Hants Sportsplex to Charlottetown/Summerside, PE,

and

- September 24 from East Hants Sportsplex to Amherst, NS.

Please do not hesitate to contact me with related comments or questions.

Best regards,

[Exhibit S-5, Tab 13, p. 95]

[483]

Mr. MacEachern’s response the following day advised that the PEI trip

was cancelled. In relation to the second trip, his response reads:

On September 24 and 25 Stock Transportation made available one of their activity buses,

unit number 25593, to transport our team to Amherst for the games. After speaking with

Stock this service was provided free of charge. [Emphasis added]

[ibid]

[484]

Newbridge’s Facebook page included an entry dated September 23, 2016,

referring to its Pee Wee Team on their way to Saint John, New Brunswick. Mr.

MacEachern testified the picture included on this post was Stock’s HMC; not an activity

bus as he had disclosed in his email to the MCD.

[485]

[486]

Stock gave the bus information to Newbridge.

Ms. Aisthorpe testified that as Newbridge’s Tender list did not show the

Saint John trip, she had no way to determine the vehicle Stock provided for this trip and

would not know that the information provided by Mr. MacEachern was incorrect.

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[487]

The Board finds Stock provided its HMC to transport Newbridge’s hockey

team to Saint John, New Brunswick. The Board also finds Stock deliberately gave false

information to Newbridge to respond to the request of the Director of the MCD. The

Board finds by this conduct that Stock willfully obstructed an Inspector in the execution

of her duties and in the exercise of her powers contrary to s. 35(2) of the MC Act.

7. Charge 6. Stock’s failure to charge rates for charter services in

conformity with its Licenses contrary to s. 22 & 23(1) of the MC

Act

[488]

Sections 22 and 23(1) read as follows:

Failure to comply

22 A motor carrier shall operate and furnish service in conformity with the

license issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

Passenger or baggage charge

23

(1)

All charges made by a motor carrier for any service rendered or to be

rendered in the transportation of passengers or baggage or in connection therewith, shall

be in accordance with the schedules fixed and approved by the Board to be charged by

such motor carrier and any charge not made in accordance with the schedules is

prohibited and declared to be unlawful. [Emphasis added]

[489]

Board counsel advised they were not pursuing discrepancies in Stock’s

charges for charter services rendered for 2015, which was the bulk of Exhibit S-6. This

did not, however, exclude Stock’s failure to charge its Licensed rates in 2016.

[490]

and approved by the Board for the transportation services it provides.

[491] The Board set minimum rates that must be charged by all motor carriers

Under s. 23(1) of the MC Act all motor carriers must charge the rate fixed

operating HMCs, without further Board approval. In 2016, the minimum daily rate was

$1,200.

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[492]

At its HMC Amendment proceeding, Stock also applied to have the

discretion of giving its customers up to a 20% discount. Its proposed HMC rates were,

however, identical to the HMC minimum rates set by the Board. The further 20%

discount proposed would bring its rates below the HMC minimum rates. Consequently,

at the hearing, Stock withdrew its request to offer this discount.

[493]

In the Stock Decision, the Board informed Stock of the overview of the MC

Act, including that a motor carrier had to comply with all of the terms and conditions of

its license. It provided a review of the Discount and Deadhead Decisions. It

summarized the important information of Mr. Gardner, and the impacts of a motor

carrier not charging their licensed rates on the sustainability of the individual motor

carrier and the Industry as a whole. Consequently, the Board set some rates for Stock’s

vehicles higher than it had proposed, including for the HMC and activity buses, because

the Board found Stock’s proposed rates were too low, potentially predatory, and could

affect the sustainability of the Industry.

[494]

In general, depending upon the duration of the charter trip, Stock must

charge the greater of its hourly/daily rates or its rates per kilometer – live and deadhead.

Other rates, such as a minimum charge also apply. The rates set by the Board for the

HMC include a Daily $1,400, Hourly $150, and Minimum charge of 4 hours. For the

Activity Bus they include a Daily $650, Hourly $80, and Minimum charge of $480.

[495]

The fact that Stock has provided services for free is not in dispute. In

addition to the free services referenced in the above charges, Stock provided free

services to various people including school boards, Newbridge and employee family

members without authority to transport them. Stock provided free transportation

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services using various vehicles including its HMC, activity, and school buses. Stock did

not charge the rates set by the Board for these charter movements.

[496]

The Board concurs with Board counsel that these services for free are a

form of discounting that has all of the negative impacts on motor carriers and these

services to the public as noted in the Discount and Stock Decisions.

[497]

Stock’s main argument was the scope of the MC Act which the Board has

rejected.

[498]

The Board, therefore, finds Stock failed to charge its Licensed rates

contrary to s. 22 and 23(1) of the MC Act.

8. Charge 7. Stock leasing its HMC to Newbridge Academy for the

transport of students, contrary to s. 7(1) & s. 22 of the MC Act

[499]

Section 7(1) and 22 read as follows:

7

(1)

Except as herein provided, no person, either as principal or by an agent

or employee, shall operate a public passenger vehicle upon a highway within the

Province

(a)

without holding a license issued by the Board allowing the vehicle to be

in a manner, at a place or for a purpose that is not authorized by the

so operated; or

(b)

terms of his license.

Failure to Comply

22

A motor carrier shall operate and furnish service in conformity with the

license issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

[500]

Stock’s License prohibits Stock from using its HMC for students:

… The highway motor coaches may not be used for any other services, including but not

limited to, for schools, school children, charters, and tours; and are further subject to the

terms and conditions of the License. [Emphasis added]

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[Exhibit S-30, p. 17]

[501]

In the Stock Decision, the Board informed Stock about contracts under a

separate section entitled “Contracts”, in addition to reviewing the Discount Decision.

The Board removed from Stock’s Licenses its open contract service. It informed Stock

that upon completion of the specific contract on its License, it would be removed. The

Board quoted from its interim Order in the Discount Decision where it noted that for any

renewals or new contracts a carrier had to apply to the Board in accordance with the

MC Act and Regulations. Consequently, all contracts had to proceed through the

Board’s public hearing application process and in the same way as any other

application before the Board; that is, it had to meet the requirements of s. 13 of the MC

Act.

[502]

In her Memo to the Clerk, when forwarding Stock’s Amendment

Applications for the Newbridge contracts, Ms. Aisthorpe stated the following facts:

 From the attached social media posting, it appears Stock is, and has, provided

services to Newbridge;

 Based on inspection reports, Stock’s HMC has travelled 10,741 kilometers since

its initial inspection in April;

 The MCD’s requests for Stock to provide details of the HMC use remain

outstanding; and

 Industry email inquiries include that Stock’s HMC is not in use for overflow cruise

ship services. [Exhibit S-15, p. 97]

[503]

On October 19, 2016, the Clerk wrote a letter to Stock. He stated Board

counsel would be reviewing information to assess whether Stock was not operating in

accordance with this License, the MC Act and/or Regulations which may lead to a Show

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Cause proceeding. Compliance is relevant to Stock’s Amendment Applications

pursuant to s. 13(a) of the MC Act. Any Show Cause proceedings may render the

Applications moot. After noting these, the letter stated the Amendment Applications

would not proceed until the Board received further advice from its counsel and/or any

Show Cause proceeding was concluded. The letter further advised Stock that it was not

authorized to use its HMC to transport students, including from Newbridge, and this was

not alleviated by providing the transportation services for free. This section of the letter

reads:

Until these matters are resolved, Stock Transportation Limited is not authorized to use its

highway motor coaches for the transportation of Newbridge Academy, or any other

schools pupils, teachers, volunteers or chaperones as noted in its Licenses. This

restriction is not alleviated by providing the services free of charge.

[Exhibit S-7, Tab 28, pp. 16-17]

[504]

On October 20, 2016, Stock, without a license, used its HMC to take

Newbridge students to Ontario between October 20-23 [Exhibit S-5, Tab 15, p. 99;

testimony of Mr. Flynn, p. 131; Exhibit S-11, Tab B, p. 5; and Transcript, p. 540].

[505]

Upon being advised of the Board’s letter, Mr. MacEachern contacted Mr.

Oxner, asking how Newbridge could secure a HMC for its hockey teams. Mr.

MacEachern testified that Mr. Oxner informed him Newbridge could either hire a local

motor carrier or lease a vehicle. Mr. MacEachern stated that as these buses cost half a

million dollars, he initially did not think it was feasible for Newbridge to lease a vehicle.

[506]

Mr. MacEachern informed Mr. Oxner by email dated October 31, 2016,

that Newbridge decided it would lease a vehicle. He provided a description of the

vehicle for the MCD to add to Newbridge’s License which reads:

Thanks for your call this afternoon. Here is the information on the bus that we would like

to add to our currently licence below:

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2006 MCI – J4500

VIN # 2M93JMPAX6W063250

[ibid, p. 14]

[507]

This vehicle is Stock’s HMC designated on its MC License 595 and

restricted to not operating for school and students.

[508]

This information was provided by Mr. Oxner to the Clerk who immediately

advised that Stock was not authorized to use its HMC for students and Newbridge. If

Newbridge wished to lease this vehicle, it would need to apply to the Board.

[509]

signed it on November 1, 2016, as the HMC left on a five-day trip to Burlington, Ontario.

[510] The document, in fact, is virtually identical to Stock’s contract with

Mr. Phinney drafted a document which he called a “Lease”. Mr. Flynn

Newbridge. As acknowledged by Stock, it does not function as a proper lease as the

vehicle is not being operated by Newbridge. Rather it is being operated by Stock which

retained control over the vehicle and supplied, amongst other expenses, the driver,

insurance, gas, maintenance (Closing Argument, Transcript, pp. 193-194).

[511]

Mr. Flynn stated that when he signed this lease, it was his understanding

Newbridge would ultimately pay for the services provided by Stock, if its Licenses were

amended to permit Stock to operate the service. Mr. Flynn, under cross-examination by

Stock’s counsel, while acknowledging he was not privy to any of the financial

discussions which may have occurred between Mr. MacEachern and Mr. Phinney, could

not say Newbridge would not be paying for the service. Mr. MacEachern had not seen

the lease before it was signed and did not know the terms of the contract.

Document: 259021

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[512]

On November 3, 2016, the Clerk sent an email to both Mr. MacEachern

and Mr. Flynn advising Newbridge could not use Stock’s HMC without making an

application to the Board [Exhibit S-5, Tab 17, p. 119].

[513]

In January, 2017, after Stock was served with the Notice of these Show

Cause proceedings, and shortly before the hearing of the matter, Mr. Flynn contacted

Mr. Penney and asked what was necessary to lease a vehicle. On January 9, 2017, Mr.

Penney advised in an email that the MCD would be ensuring it was operated by a

qualified driver, proper insurance, and a copy of the lease were kept on the vehicle,

necessary safety equipment, and the vehicle would be inspected by the MCD on a

semi-annual basis.

[514]

Board counsel argued the lease was, in effect, the fulfillment of the Tender

contract. It was a business relationship between Stock and Newbridge. It was signed

for the purposes of transporting Newbridge’s hockey team in November, after the Board

had, specifically, stated this vehicle could not transport Newbridge students and Stock

could not avoid its License by providing services for free.

[515]

In support of its argument, Board counsel emphasized the above evidence

including that this document was not merely the lease of an asset similar to what

Newbridge would enter into with a vehicle manufacturer. Rather, it was for providing

every aspect of the public passenger transportation services, including the driver, gas,

repairs, maintenance and insurance.

[516]

Board counsel argued the service under this lease was not licensed in

Stock’s License and was contrary to the legislation. Under the MC Act, a motor carrier

cannot lease its license without approval of the Board.

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[517]

The Board concurs that under the MC Act a motor carrier must apply to

the Board to lease the HMC portion of its license. Section 11 notes that an application

for the lease of the license is to be made to the Board and the Board is to take into

consideration the various factors under s. 13 when deciding whether to approve the

lease of a motor carrier’s license.

[518]

The main argument of Stock is that the Board has no jurisdiction over a

lease agreement. A lease relates to the asset of the bus and not to its operation. Not

being within the Board’s jurisdiction, this lease is not, therefore, covered by Stock’s

License. Consequently, Stock argued it cannot be found to have acted contrary to its

License.

[519]

Stock’s counsel agreed that merely because this document was named a

“lease”, does not mean that it was a lease in the above context. Ultimately, Stock’s

counsel agreed it was not a lease of an asset only. Stock’s HMC was not being

operated by Newbridge. The operation of the vehicle was maintained by Stock. Stock

was paying for all aspects of the vehicle including the driver, maintenance, insurance,

etc.

[520]

The Board finds the agreement named “lease” was a contract between

Newbridge and Stock whereby Stock was using the HMC to provide services to

Newbridge and its students, which it specifically was not licensed to perform.

[521]

Consequently, Stock has operated the vehicle for Newbridge under this

contract contrary to ss. 7 and 22 of the MC Act.

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[522]

Stock’s other main argument is as above; the service was done for free

and, therefore, is outside the scope of the MC Act and the Board’s jurisdiction. For the

same reasons as noted above, the Board rejects that argument.

[523]

However, the Board, finds that under the facts of this case the leased

services were not being provided for free. Mr. Flynn, as the representative of

Newbridge, signed the “lease” on November 1, 2016. He did so with the understanding

that Stock would eventually be paid for these services, if Stock were granted a license.

Mr. MacEachern never saw this document before it was signed by Mr. Flynn.

[524]

There were some other arguments raised by Stock that appeared to have

been abandoned. However, to be very clear and specific, the Board rejects those

arguments as well and will summarize some of these below.

[525]

At one point, Stock seemed to suggest there was an official inducement

that caused Stock to enter into this “lease” with Newbridge. Furthermore, Stock argued

there appeared to be an inconsistency between the information provided by the MCD

and the Clerk.

[526]

provided by the MCD and the Clerk. Anyone is able to lease a HMC, or as Mr. Smith

described it, an asset lease. Newbridge could have contacted one of the

manufacturers, such as Prevost, and entered into a lease for an HMC.

[527] However, when Newbridge informed the MCD and Clerk of the vehicle

First, the Board finds there was no inconsistency in the information

description, it was Stock’s HMC. When a vehicle is only permitted on the highways of

Nova Scotia under a very restricted license, any person seeking to lease that same

vehicle must apply to the Board for approval to use that restricted vehicle for another

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purpose. It enables the Board, for example, to review the document and assess it in

accordance with the s. 13 consideration under the MC Act. It also ensures that it is not

a lease of the services or contract agreement under another name, as it turned out to be

in this case.

[528]

Regarding an official inducement, there are two time periods: late October,

2016 by the then Director, Mr. Oxner, and by Chief Inspector Penney in January, 2017.

This argument fails because (1) the information was correct; (2) the information was

provided to Newbridge and not Stock; and (3) the information from Chief Inspector

Penney came after the events and service of the Notice of Show Cause.

[529]

The information provided by Mr. Oxner and Chief Inspector Penney was

correct. As Mr. Oxner stated, there were two choices; Newbridge could either hire a

local motor carrier, or enter into a lease for a HMC. Chief Inspector Penney set out

what the MCD would look for, which included that the vehicle be driven by a qualified

driver, lease agreement and proper insurance be in the vehicle, and the vehicle be

inspected twice annually.

[530]

Second, the information provided by both of these individuals was to

Newbridge not to Stock. Stock cannot seek to rely on official statements when no

information was provided by the MCD to Stock.

[531]

In relation to Chief Inspector Penney, not only was this information

provided to Newbridge, but it was done so in January, 2017. This was after Stock had

been served with the Notice of Show Cause and disclosure documents, and shortly

before the hearing of these proceedings. Most importantly, it was after Stock drafted,

Document: 259021

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signed and operated under this contract agreement called “lease”. One cannot claim

official inducement for its conduct after the fact.

[532]

Stock then suggested the problem with Chief Inspector Penney’s

information was that he did not provide information on what terms were necessary to be

included in a lease agreement. In addition to the information being provided to

Newbridge and not Stock, it is not the job of the MCD inspectors to be providing legal

advice on the terms necessary for a lease. Chief Inspector Penney did not give legal

advice. Stock, like any other motor carrier in the Province, is welcome to seek legal

advice from its legal counsel. Stock acknowledged it used legal counsel before the

Board including for its Licenses, Amendments, Transfer of Perry Rand’s licenses and

this Show Cause hearing.

[533]

Stock then argued that although this “lease” was poorly drafted, the Board

should find that Stock was seeking to do the right thing for the right purposes, negating

any malfeasance. This breach, of operating contrary to its License under s. 7(1) of the

MC Act, does not require the Board to find malfeasance.

[534]

Board and the public, would collectively want Stock to do under the circumstances.

[535] Stock argued once the motor carrier has put the public in this situation of

The third main argument was that Stock was merely doing what “we”, the

being caught without transportation, that providing a lease and/or services for free is

exactly what “we”, the Board and public, want a motor carrier to do: find solutions; help

out the public.

[536]

This is exactly the opposite of what is wanted. People wanting a license

have held themselves out to the public as being authorized to operate a service and/or

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commit to prices. They then apply to the Board at the last minute, in an effort to secure

the authority saying that otherwise the customer would not be served. The provisions of

s. 13, and other aspects of the MC Act, are not eliminated because a motor carrier has

held itself out as having a license it does not have, or applying to the Board late. Stock

and other motor carriers that hold themselves out as being able to be licensed when

they do not have one, do a disservice to the public. The Board has repeatedly

addressed this in its Decisions. Although the following reference is in relation to a

temporary authority application after being denied a license, the comments are equally

applicable:

[12]

In this case, the reason for the request was because Party Bus has, once again,

acted contrary to the Act by taking deposits without having a license, failing to tell the

public it did not and may not have a license to operate on the dates of their events, and

therefore, held itself out to the public as being able to offer the services.

[13]

The Board finds that any other company could do the same and avoid the Act.

Anyone wanting a license in the province could mislead the public, take deposits, hold

themselves out as being able to offer the services, and then come to the Board and say

‘You have to give me a temporary authority to do these functions because it would not be

fair to the public’.

[14]

The Board finds the above is contrary to the purposes of the Act and would

render it useless. The Board is required to regulate the industry in accordance with the

Act and cannot permit companies to thwart the legislation.

[15]

Party Bus did not have a license to operate in this province. Party Bus, by its

conduct, has done a terrible disservice to the public. It is fully responsible for the

disappointment of people it took deposits from. To provide a temporary authority in this

case would be to reward a company for misleading the public and operating contrary to

the Act.

[16]

Party Bus has not met the requirements of the Act and its temporary authority

application is denied.

[17]

People affected by the conduct of Party Bus may contact the Motor Carrier

Division for a list of those licensed in the province to provide luxury transportation

services using vehicles of various seating capacities and styles.

[Party Bus Atlantic Inc., 2010 NSUARB 169]

Document: 259021

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[537]

Providing unlicensed services for free is not a solution. Transportation

must always be done by licensed motor carriers. Never does the Board expect an

unlicensed motor carrier to then offer its services for free.

[538]

In this case, Stock is responsible for any harm done to Newbridge for both

holding itself out as having authority, and for the very low rates it proposed without

having approval of the Board, except to the extent that Newbridge may have

participated in the lateness of the application to the Board.

[539]

The agreement between Stock and Newbridge named “lease agreement”

was in fact a contract between the two parties for Stock to operate its HMC in the same

way as under its intended Tender contract. That is, the operation and control of the

HMC remained with Stock who provided the driver, the vehicle, maintenance,

insurance, etc. `This was nothing more than the same contract the parties sought to

enter into but using a different name (lease).

[540]

The Board finds Stock leased its HMC services and on November 1, 2016,

Stock operated its HMC to take Newbridge students from Dartmouth to Ontario and

return contrary to its License and ss. 7(1) and 22 of the MC Act.

9. Charge 8. Any other breaches which become known to the Board

in the proceedings

[541]

Board in these proceedings:

(a) misled the Board;

The Board finds the following breaches by Stock became known to the

(b) joined two licenses together without authority to do so contrary to s.

8(g) of the Board Public Passenger Motor Carrier Act Regulations;

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(c) transported school officials from the Halifax Regional School Board

contrary to its Licenses;

(d) in addition to the above breaches, used various vehicles including its

school and activity buses and HMC, and/or operated school bus

services, contrary to s. 7(1) of the MC Act;

(e) demanded its drivers drive the HMC after they exceeded their

permitted hours of being on duty contrary to s. 12(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act; and

(f)

requested its drivers falsify their Daily Log contrary to s. 86(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act.

(A)

Stock Misled the Board

[542]

For the reasons set out below, the Board finds Stock intentionally misled

the Board in this Show Cause proceeding by:

1. Providing incomplete, inaccurate and/or misleading answers to IRs and, in some

cases not providing any answers;

2. Failing to process and maintain the information about the movements of the HMC

in the same manner as Stock does for all other vehicles; and

3. Attending before the Board without the answers to the IRs and, in most cases,

without looking for the answers.

1)

There are a number of misleading, incomplete, and/or inaccurate

responses to the Board IRs. The Board will only review a few.

[544] Under the Board’s Regulatory Rules applicable to the MC Act (Board

IR Responses

[543]

Rules), is a requirement for people to provide full and accurate answers to IRs as

follows:

16

(2)

A Response to Information Request shall be in accordance with Form B

and shall

Document: 259021

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(a)

provide a full and adequate response to each question;

[545]

The Board issued IRs. An example of Stock’s response is illustrated by its

answers of providing details of all movements of the HMCs. The main response is on

the right-hand side of the chart noted below:

[Exhibit S-11, p. 2]

[546]

The Following is the complete Tab A outlining the itineraries of each

movement of the HMC:

List of movements of Motor Coach 20808 as recalled:



May

o

Trip to Truro

o

o Trip To Moncton

o Trip to Montreal

o Trip To Halifax

• July

o

o Trip to Moncton

o Trip to Ottawa

o Trip to Murry Corner

o Trip to Moncton

• August

o

o Trip to Halifax

o

o Trip to Haileybury

• September

o

o Trip to Saint John

o Trip to Boston

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• October

o

o Trip to Pier 21

Trip to Quebec

o Trip to Ontario

• November

o

o Trip to Ontario

o Trip to Moncton

[547]

“Itinerary” is defined in Stock’s Licenses as:

Itinerary: The route, start and end times and dates of the charter as provided by the

customer. It shall also include the total hours each day the driver is to remain on service,

and the approximate mileage for each day.

[548]

16(2).

[549]

This is not a full and accurate response and is contrary to Board Rules

For Tab B, Mr. Phinney included Stock as the contact person for all

movements except some for Mr. Flynn. A few of these are shown below. In Tab B,

Stock failed to provide full and accurate responses contrary to Board Rules 16(2).

[550]

The Board will review two movements as examples of deliberately

misleading the Board. For the first example, part of Stock’s itineraries for HMC

movements in May reads:



May

…

o

Trip to Moncton

Trip to Montreal

Trip to Halifax

[551]

The answer under Tab B included the following for the month of May:



May

…

o

Trip to Moncton, Deliver of bus to Moncton by stock employee.

Contact Stock office 902 481-8400

Trip to Montreal. Hockey group from Fredericton UNB red Devils to

Montreal.

.

Contact is Paddy Flynn 902 789-4625

Trip To Halifax, Bring bus back to Halifax Office

Contact Stock Office 902 481-8400

o

.

Document: 259021

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[ibid, Tab B, p. 5]

[552]

Without the testimony of Mr. Flynn at the hearing, the Board would not

know this was not three separate trips. Rather it was one hockey trip that Mr. Phinney’s

two sons travelled on the HMC to Montreal. This trip was described in detail by Mr.

Flynn. The same details were known to Mr. Phinney. Those details included that the

HMC left from Dartmouth on an approximate five-day trip to Montreal and return.

Approximately 15-20 hockey players were picked up in Nova Scotia at three separate

locations. As this full trip was organized by Mr. Flynn, he should have been disclosed

as the contact person throughout.

[553]

The Second example of deliberately misleading the Board is in response

to IR-2. It stated all information regarding School Board personnel was to be included

under question 1:

Request IR-2

Ensure that the answer provided to question No. 1 includes all School Boards and/or

school personnel transported in the highway motor coaches as well as all contact

information.

Response: See above response to IR 1 – B

[ibid, p. 2]

[554]

Stock’s response in July included under Tab A the following itinerary:



July

o

Trip to Murray Corner

[Exhibit S-11, Tab A, p. 4]

Stock’s IR Response for the group name and contact information reads:



July

…

o

Trip to Murray Corner, Staff function

Contact Stock office 902 481-8400 [Emphasis added]

.

[ibid, Tab B, p. 5]

Document: 259021

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[555]

In fact, Mr. Phinney took officials of the Halifax Regional School Board to

his cottage. This was not disclosed. Nor were the names and contact information of

the School Board officials with whom Mr. Phinney made the arrangements.

[556]

For drivers’ log books under IR-1(f), none were provided in Stock’s

response. This is contrary to Board Rules 16(2). In response to Board counsel’s

questions as to why this was not answered, Mr. Phinney’s initial response, once again,

began with he was unaware and unsure. As the questions continued, he did not recall

looking for them, queried whether Stock still had them although suspected it would, but

he would have to go back to the office and check. He stated Stock does not have to

retain them, if the vehicle operated within 160 kilometers of its base.

[557]

Maintaining drivers’ log books are important for the safe operation of these

motor carrier vehicles. As most of the HMC movements were extra-provincial, the

Board will reference the Drivers Regulations. A driver’s log book applies to every single

movement of the vehicle regardless of the purpose of its movement or the group that is

being carried. Consequently, whether the movement is a “legitimate movement” for

free, carries an employee with friends/family, or is shuttling Stock’s buses, a driver must

accurately record when they started on duty, drove and rested. Stock must maintain

those records. The driver’s logs show compliance with the required rest periods so

drivers can safely operate the vehicles.

[558]

A driver is required to provide a copy of their daily log books to Stock

within 20 days of its completion (85(2)). Stock is required to keep the log books and

supporting documents in chronological order for each driver in its principal place of

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business within 30 days and maintain those logs for at least six months. Drivers

Regulation 85(3) reads:

85 (3) The motor carrier shall

(a)

deposit the daily logs and supporting documents at its principal place of

business within 30 days after receiving them; and

(b)

keep the daily logs and supporting documents in chronological order for

each driver for a period of at least 6 months.

[559]

Supporting documents are everything that shows compliance with the

Regulations:

supporting document means a document or information recorded or stored by any

means required by a director or inspector to assess compliance with these Regulations.

[560]

Further insight on the types of information to be kept as supporting

documents is noted in the exclusion for the carrier to maintain daily logs for movements

of less than 160 kilometers. A motor carrier must, however, otherwise maintain

accurate records of the driver’s duty status as outlined below:

81 (2) This section does not apply if

(a)

the driver operates or is instructed by the motor carrier to operate a

commercial vehicle within a radius of 160 km of the home terminal;

(b)

the driver returns to the home terminal each day to begin a minimum of 8

consecutive hours of off-duty time;

(c)

the motor carrier maintains accurate and legible records showing, for

each day, the driver’s duty status and elected cycle, the hour at which each duty

status begins and ends and the total number of hours spent in each status and

keeps those records for a minimum period of 6 months after the day on which

they were recorded; and

(d)

the driver is not driving under a permit issued under these Regulations.

[561]

Driver’s Regulations require the production of the daily log books,

supporting documents and other relevant records, if requested by an Inspector as

follows:

99 (1) A motor carrier shall, during business hours, at the request of an inspector,

immediately make available for inspection at a place specified by the inspector daily logs,

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supporting documents and other relevant records as well as any permit a driver may be

driving under or have been driving under during the period for which the inspector makes

the request for the documents.

[562]

The above section highlights some of the major components of this

comprehensive Regulation for ensuring drivers’ hours of work and the importance of the

compliance log books.

[563]

Dispatch information of each HMC movement was asked for under IR-

1(e). None were provided in Stock’s response contrary to Board Rules 16(2). The

dispatch information includes the instructions to the drivers, similar to the information

Mr. Taggart provided for the August 2016 trip. Before the drivers arrived at Stock on the

day of the trip, they needed to know the duration of the trip, whether it was to be for one

day or five so they could pack clothes. Drivers need to know where they are driving to;

where they must stop to pick up the other passengers; when they will be on duty

throughout the duration of the trip; and the movements they are to make at each

location.

2)

Not processing HMC movements like all others

[564]

[565]

Stock operates approximately 500 vehicles in Nova Scotia.

Stock has computer programs into which the details of all movements of

all of its other vehicles are placed. In Stock’s Amendment proceedings, Ms. Coldwell

provided to the Board, details of the individual vehicle charter movements including Trip

ID (client), Invoice, Trip Name, Customer, Date, Itinerary, Start Time, End time, Vehicle

Unit No., Depot, Fee, and Kilometers travelled (and were included in this Show Cause

proceeding).

Document: 259021

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[566]

Companies will also keep all other related documentation, either

electronically or by paper, including conversations, directions such as dispatch

information, hotel and meal charges for the drivers.

[567]

The Board finds Mr. Phinney was the sole person within Stock directing

the HMC movements. The Board finds Stock did not treat its HMC in the same manner

as it does all of its other vehicle movements. It did not input the itinerary into its

computer system. It did not maintain copies of any documents, transactions,

conversations or invoices. As Mr. Phinney stated, Stock has no documents (Transcript,

February 1, 2017, p. 506).

[568]

The Board finds the lack of supporting documentation and information

regarding the HMC movements was done deliberately to mislead the Board and make it

more difficult for the Board to detect Stock was operating outside of its Licenses.

Examples include the above Montreal hockey trip, trip with HRSB officials and the Saint

John trip for Newbridge.

3)

Board Hearing

[569]

Board counsel argued, considering Mr. Phinney attended the Show Cause

hearing knowing Stock’s Licenses could be cancelled, it was surprising how little

evidence was provided. The Board concurs.

[570]

Even in relation to the one alleged “legitimate movement for Coach

Atlantic”, Mr. Phinney had absolutely no information or supporting documentation, not

even a date.

[571]

In attending before the Board, he brought no evidence including the

outstanding documents not included with Stock’s IR Responses such as the drivers’

Document: 259021

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logs. In fact, he had not looked for them. An Undertaking at the hearing was necessary

to obtain these.

[572]

Throughout the hearing, Mr. Phinney often responded to questions stating

he would have to check. As noted above at times he was evasive and his evidence

appeared made up as he went along.

[573]

Once again, the Board finds that the lack of evidence and information

brought before the Board at the Show Cause hearing was deliberate and done in an

effort to mislead the Board on Stock’s operations with its vehicles licensed by this

Board.

(B)

Stock joined two licenses together without authority to do so

contrary to s. 8(g) of the Board Public Passenger Motor Carrier

Act Regulations

[574]

Under s. 8(g) of the Board Public Passenger Motor Carrier Act

Regulations no motor carrier is allowed to join licenses together unless authorized to do

so by the Board. This joining of licenses is called “tagging” or “tacking”. Regulation 8(a)

reads:

Service conditions and obligations

8

The following service conditions and obligations shall apply:

…

(g) no motor carrier shall join or cause to be joined a specialty charter or contract

route or area public passenger authorization contained in the license of the

motor carrier with another specialty charter or contract route or area public

passenger authorization contained in the license or any other license of the

motor carrier or of any other motor carrier unless the authority to join is

specifically included in the license of the motor carrier.

[575]

What this means is that if passengers are picked up in Nova Scotia, a

motor carrier must have full authority to transport the passengers for their entire trip until

it concludes. This is necessary for the regulation of the Industry and safety of the

Document: 259021

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passengers. It prevents, for example, a motor carrier that is denied an extra-provincial

license from using one license to take the public to the Nova Scotia border and then use

a different license to transport them extra-provincially. It prevents doing through the

back door what you are not granted to do through the front door. Furthermore, people

could completely circumvent the MVT Act and MC Acts: PEI Select Tours Inc., 2011

NSUARB 126; Molega Tours, 2012 NSUARB 57; and Molega Tours, 2014 NSUARB

153.

[576]

Stock has done this. One example, is Stock’s last trip to Moncton for

Newbridge in November, 2016. After repeatedly being told its HMC was not licensed to

transport students, Stock used its licensed school bus to take the Newbridge students to

Moncton. The students were transported between the hotel and the rink using Stock’s

HMC. The students were then returned to Halifax in Stock’s school bus. Mr. Flynn

testified:

Mr. Outhouse: So if I understand your evidence correctly, what happened was your

team or teams were transported by school bus provided by Stock to

Moncton, and then the coach [HMC] was used to shuttle players from the

hotel where they were staying to the various arenas ---

Mr. Flynn:

Yes.

[Transcript, January 30, 2017, pp. 134-135]

This is tagging/tacking.

[577] Stock used its licensed school bus in combination with its HMC in New

Brunswick, when it had no authority to use its HMC for extra-provincial movements from

and to Nova Scotia under the MVT Act.

[578]

The Board finds Stock has operated its vehicles, by tagging licenses

together contrary to the Regulations of the MC Act and, therefore, is also in breach of

the MVT Act.

Document: 259021

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(C)

Stock transported school officials from the Halifax Regional

School Board contrary to its Licenses

[579]

Stock’s MC License 595 specifically restricts it from providing any HMC

services for schools. In the Stock Decision, the Board specifically reviewed the

evidence of Stock’s RFP response for the HRSB and Stock wanting to use the highway

motor coaches for that service. The Board noted the HRSB contract service on its

License terminated in 2016. The Board specifically informed Stock that it was not

permitted to use the highway motor coaches for any charters, including its contracted

school boards.

[580]

Its MC License 595 does not permit it to use its HMC for any purpose

except overflow cruise ship services. The transportation of officials from the Halifax

Regional School Board to Mr. Phinney’s cottage is contrary to both of Stock’s Licenses

and s. 7 of the MC Act and s. 4 of the MVT Act.

(D)

In addition to the above breaches, Stock also used various

vehicles including its school and activity buses and HMC,

and/or operated school bus services, contrary to s. 7(1) of the

MC Act

[581]

During the Show Cause proceeding evidence was received by the Board

that showed Stock, in addition to the breaches noted above, used its school and activity

buses and HMC to provide transportation services, including school bus services, when

it did not have the authorization to do so either under trip permit, temporary authority or

permanent authority on its License. These are outlined in detail under the section in

Facts entitled Other Movements.

[582]

These include:

Document: 259021

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 on the very date Mr. Phinney testified at this Show Cause hearing he

stated Stock was providing (and had provided in the past) free school

buses to other public school boards (without authorization to do so either

under trip permit, temporary authority or permanent license authority) (ibid,

p. 581);

 used its vehicles for other transportation services for which it had been

stopped by Inspectors, charged and at times fined for operating outside of

its Licenses including having “the wrong students or the wrong such and

such on the bus”, that is, providing transportation Stock was not

authorized to perform;

 in addition to the school bus Vehicle No. 25486 referenced in Charge 3,

Stock used other school buses for Newbridge services for the school year

of 2016/17;

 Stock also provided school buses and transported Newbridge’s students a

couple of times in the previous school year of 2015/16, one lasting for

approximately six weeks; and

 used its HMC to transport an employee’s brother, and others from the

same facility, to a local event.

[583]

Although the following comment relates to offering free services on the

May 2016 hockey trip, the attitude of “we did it anyways” is in the Board’s opinion,

consistent with Stock’s use of its vehicles as it wished outside of the Acts and its

Licenses:

So we knew that we wanted to provide this as a free service to this program in order to

get these kids to the -- I don’t know whether they’re – I don’t suspect the UNB [B] Reds

are a charitable organization but we did it anyways. [Emphasis added]

[Transcript, February 1, 2017, p. 521]

[584]

the HMC) contrary to s. 7(1) of the MC Act.

(E) Stock demanded its drivers drive the HMC after they exceeded

The Board finds Stock used its vehicles (school buses, activity buses and

their permitted hours of being on duty contrary to s. 12(2) of

the Commercial Vehicle Drivers Hours of Service Regulations

under the MVT Act

Document: 259021

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[585]

The Drivers Regulations are comprehensive and detailed. The most

pertinent sections include:

Daily Driving and On-duty Time

12(2) No motor carrier shall request, require or allow a driver to drive and no driver shall

drive after the driver has accumulated 14 hours of on-duty time in a day.

Daily Off-duty Time

14 (1) A motor carrier shall ensure that a driver takes and the driver shall take at least 10

hours of off-duty time in a day.

commercial vehicle means a vehicle that

(a) is operated by a motor carrier and propelled otherwise than by muscular power; and

(b) is a truck, tractor, trailer or any combination of them that has a gross vehicle weight in

excess of 4 500 kg or a bus that is designed and constructed to have a designated

seating capacity of more than 10 persons, including the driver. [Emphasis added]

As the drivers on Stock’s August 12-15 trip were rotating, the prohibition under

Regulation 12(2) is 16 hours on duty for this movement.

[586]

Without having any authorization to perform this trip by trip permit,

temporary authority or permanently added as a service on its Licenses, Stock used its

HMC to travel to Northern Ontario and return with its drivers to Nova Scotia. Stock was

moving school buses to Moncton and Northern Ontario. Approximately 33 drivers were

involved. Three drivers were licensed to operate the HMC; being Ms. Bishop, Mr.

LePage and Mr. MacDougall (the HMC drivers).

[587]

The instructions for this trip were received the morning of August 12,

2016, from one of Stock’s dispatchers, Andrew Taggart. Ms. Blades was the main

contact person to communicate the instructions from Mr. Taggart to the drivers, which

prevented 33 different phone calls with him. Ms. Power was also a contact person. In

this capacity, they are “Stock’s representatives on the trip,” (Transcript, February 1,

2017, p. 664).

Document: 259021

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[588]

The group took five new school buses from Dartmouth to Moncton. Ms.

Bishop was responsible for the HMC from Moncton. Each of the other drivers drove a

school bus to Northern Ontario. The trip went as scheduled to Northern Ontario and the

group stopped overnight at a pre-arranged hotel in Drummondville, Quebec.

[589]

On the return trip from North Bay on August 14, 2016, all of Stock’s drivers

were on the HMC. Ms. Bishop, Mr. LePage and Mr. MacDougall alternated driving the

HMC.

[590]

The HMC was in the area of Brossard, Quebec. At that time, all HMC

drivers had been on duty for 13 hours and only had three more hours they were able to

be on duty. After the 16^thhour, none were permitted to drive the HMC.

[591]

While on the HMC and driving through Southern Quebec, Ms. Blades told

the HMC drivers they were to drive straight through to Dartmouth. Continuing to

Dartmouth would far exceed three hours. Ms. Bishop described this demand as follows:

Ms. Bishop:

Ms. O'Neill:

Ms. Bishop:

Brassard was a fuel stop. Driver changeover as well.

What were your instructions for the rest of the evening around that time?

The instructions we knew, from what we gathered, was to -- and this

came straight from Carla. She came up from the back end of the bus

right to the front end to me and Andrew, and she said to the two of us

that we were to be back in Dartmouth that night, so straight through; non-

stop. They weren't intending on stopping again. There was no other point

of it. It was just going to be a straight-through trip, change over drivers

when needed.

Ms. O'Neill:

Ms. Bishop:

And Carla gave you those instructions?

Yes.

[Transcript, January 30, 2017, p. 324]

[592]

[593]

Ms. Blades confirmed she made the above demand.

Ms. Bishop and Mr. LePage informed Ms. Blades they could not legally

drive straight through to Dartmouth as they were not permitted to drive after their 16

Document: 259021

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hours had expired and they only had three hours remaining. The response from Ms.

Blades and Ms. Power was, “Well, that’s what’s expected.” Ms. Bishop and Mr. LePage

also informed Ms. Blades and Ms. Power that resting on a seat in the back of the bus

was not a separate sleeper berth which is required for a rest period under the

Regulations. The demand to continue driving remained the instruction.

[594]

Ms. Blades testified that her understanding, at the time of the trip, was if

you were not driving and were sitting in the back of the bus, you were not on duty. She

based this on her experience with truck driving. Her experience was gained from living

with a couple of long-haul truck drivers and knowing their rules from her conversations

with them. She has no similar experience with buses, and noted there are a few

different rules.

[595]

Ms. Blades also acknowledged the only experienced HMC drivers on the

trip were Mr. MacDougall, Mr. LePage, and Ms. Bishop and they were telling her the

rules that applied to them:

Mr. Outhouse: And they were telling you they knew what the rules were and the rules

were that in the circumstances you were in, you were on a coach, the

drivers; that is, the three drivers of the bus, weren’t getting into some

sleeping [berth] that was separated from the cab of the vehicle; correct?

Ms. Blades:

Yes.

Mr. Outhouse: And that in those circumstances, the maximum hours applied to, in

effect, all three of them.

Ms. Blades:

Mr. Outhouse: And they could not continue beyond the maximum hours.

Ms. Blades: Yes.

Yes.

[Transcript, February 1, 2017, pp. 677-678]

[596]

Although she expected the HMC drivers to know the rules, she said she

does not take anybody’s word for anything and had to look it up herself. Ms. Blades

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contacted Mr. Taggart and told him what the HMC drivers were telling her about the

rules of their permitted hours on duty.

Mr. Outhouse: Did you tell Andy Taggart that?

Ms. Blades:

Yes, I did.

Mr. Outhouse: Yes. And Andy Taggart’s instructions to you were that wasn’t his

understanding and they were to carry on and bring the bus back to

Halifax that night; correct?

Ms. Blades:

That was ---

Mr. Outhouse: That was his initial instructions.

Ms. Blades:

That was his initial, yes.

…

Mr. Outhouse: So he just -- his instructions at that stage were just, “Tell them to bring

the bus back tonight.”

Ms. Blades:

Yes.

[ibid, pp. 678-679]

[597]

Mr. Phinney stated he was contacted throughout the day. When he was

told the bus drivers were running out of hours, he stated: “How is that; there’s 33

drivers on that bus.” (Transcript, p. 607).

[598]

He stated he understood it is 1,700 kilometers from North Bay back to

Halifax on Google Maps. If averaging 100 kilometers an hour it would take 17 hours.

He acknowledged this did not take into consideration the required stops such as for

meals. Mr. Phinney also stated the vehicle can average more than 100 kilometers an

hour.

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[599]

Mr. Phinney testified he expected the drivers to understand their own laws

and regulations. If they were close to running out of time, the drivers had to book off

and get a hotel:

Mr. Outhouse: We can. But what I’m saying to you, he [Andrew Taggart] was in charge

of that trip, at least from back here, right?

Mr. Phinney:

He was providing the details of where they were -- the buses, what

assets they were picking up, you know, where they were headed the final

destination. You know, who would be kind of liaisons on the trip to speak

to if they’re having issues.

Other than that, they were set out -- you know, moving 29 buses plus a

chase bus across the country, you know, there is -- we expect people to

understand their own laws, their own regulations and when they get

close to wherever they have to be, then they have to book off and get

into a hotel. [Emphasis added]

[Transcript, February 1, 2017, p. 535]

[600]

In accordance with Mr. Taggart’s instructions, Ms. Blades, once again,

communicated to the HMC drivers that the instructions were for them to continue to

drive through to Dartmouth. This debate continued and the demand remained the

same.

[601]

Ms. Bishop testified Mr. Taggart also contacted her directly on her cell

phone while she was on the bus and told her to “stop winding people up because of the

legalities of what I was looking at, at the trip” (Transcript, p. 314). This communication

is consistent with Ms. Blades’ testimony that Mr. Taggart told her the trip was to

continue.

[602]

The Board finds Ms. Bishop and Mr. LePage understood from the various

demands that they would lose their jobs if they did not meet them.

[603]

Ms. Bishop explained the impact of these demands:

Ms. O'Neil:

What would have happened had you carried out the instructions from

Carla to drive straight to Dartmouth?

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Ms. Bishop:

Taking a very, very, very big chance, okay? I would have gone against

my own integrity, my own rules, my own morals. I would have been in

trouble with my current employer, with Ambassatours, when they ended

up seeing the log sheets. Potential, hey, UARB stops you, ha, that's my

fine. That's a potential stoppage and hours of service.

It's just -- it's not a risk I was willing to take and never will take for

anybody.

It would have meant 17 straight hours on top of the hours I was already

on duty not driving or on duty driving.

So when that call was put in at 6:30 -- or 6:00 p.m., add another 13 hours

-- sorry, 17 hours or so on top of that to the current timeframe it would

have taken, and you have about 30 hours on duty driving and not driving

combined. Way, way over the specified hours.

[ibid, pp. 331-332]

[604]

Ms. Bishop stated when the group stopped for supper in Saint-Hyacinthe,

she was upset. She stated if she had enough money in her bank account she would

have flown home instead of remaining on the bus.

[605]

Mr. LePage testified:

Ms. O’Neill:

Mr. Lepage:

And what happened after that?

They went in and took their lunchbreak, the whole group that was on the

bus. I immediately -- I was very upset, emotionally. I actually -- there

was a point in -- well, the whole -- I want to explain it out.Kelly, the

emotion she went through, it wasn’t yelling and screaming. She wasn’t

yelling and screaming. She was crying. Because when she got the “Or

else” she got the message. She felt the same way I felt; we’re losing our

jobs. This is our world. This meant the world to me. I really enjoyed this

field, that’s why I took the time to specialize at this.

So she got very emotional and, yes, she was talking to other drivers.

There was a group of drivers that didn’t go into the restaurant to eat, and

you know, they were trying to [console] her, to make her feel better.

I left the whole pack myself because I couldn’t believe what was

unfolding in front of me. I had to leave from everybody. I went over to the

Burger King by myself and stayed there because I actually broke into

tears.

This is my dream to do my next 20 years of my career. This is where I

see myself finishing my career. So you’re going to tell me that I’m doing

the right thing and I stand for -- I’m not going to break the law. It’s just --

sorry, there’s right and there’s wrong. I’m not going to take a fine. Mind

you, I didn’t know exactly what the costs were of the fine. I knew it was

hefty. I don’t know if UARB actually had a right to take a licence but I

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knew there were possibilities. I didn’t like any of the thoughts that were

going through my head if I broke the law.

[ibid, pp. 400-402]

[606]

Ms. Bishop and Mr. LePage spoke with Mr. MacDougall, who was the only

unionized driver of the three of them. He made a call to the Vice-President of his Union

who said the trip had to stop. Mr. MacDougall also gave his phone to Ms. Bishop. Mr.

Bishop testified the Vice-President informed her the trip would stop and said she may

“not be able to protect her [Ms. Bishop’s] job”.

[607]

Ms. Blades stated in Saint-Hyacinthe, she, Ms. Power and a couple of the

other drivers went for supper and discussed the issue. She checked the internet and

confirmed Ms. Bishop and Mr. LePage were correct.

[608]

Ms. Blades stated she contacted Mr. Taggart. He said Mr. Phinney

already knew but she had to get his okay:

Mr. Outhouse: And so then the message when you conveyed that to Andy, that

changed his mind, or he told you to speak to Mr. Phinney?

Ms. Blades:

No. When I told him I had looked it up and this was actually the rules,

he’s like, “Okay, then I guess you guys are stopped.” And he’s like, “Troy

knows but you have to get his okay because he is the one in charge of

the finances.”

[ibid, p. 680]

[609]

The trip stopped. The HMC drivers drove a further hour to Drummondville

and stayed the night. No prior hotel arrangements had been made by Stock for its

drivers that evening. Mr. MacDougall had to call hotel(s) to locate accommodations for

the group.

[610]

Mr. Phinney also testified the Union never brought any information to his

attention. The Union would not deal with Mr. Taggart. They would only deal with the

management office: which was himself, Amber Glavin, Catherine Moreau, or Dwight

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Keeping. Ms. Coldwell is in a separate office, and again, the Union would not contact

her.

[611]

Ms. Bishop and Mr. LePage prepared an Incident Report dated August 22,

2016, which they filed with the MCD (Transcript, p. 333). It included this issue as well

as vehicle concerns which led to the MCD Random Inspection outlined under Facts.

[612]

Ms. Bishop and Mr. LePage testified in detail to their attendance at Stock’s

September meeting for school bus drivers for the 2016/17 school year. Everyone

received a package and watched a video. Mr. LePage went over to the wall to see what

work he had, and his name was not there. Several drivers hired after him had school

runs, but he did not.

[613]

Mr. LePage and Ms. Bishop have not received any work from Stock since

the August 12-15, 2016 trip to Northern Ontario.

[614]

Mr. LePage and Ms. Bishop also worked for Ambassatours during the

summer as Stock had little work for them. As Ms. Bishop stated, she needed to pay her

bills.

[615]

representative for Stock that it was possible for spare drivers to also work part time for

other companies, like Ambassatours. Other Stock drivers have worked for

Mr. LePage testified he understood from the Human Resources

Ambassatours during the summer and into the fall for the tourism season. Permanent

drivers who operate specific runs are not permitted to do so.

[616]

Mr. LePage received a Record of Employment (ROE) from Stock dated

November 24, 2016, stating his employment had been terminated because there was

not enough work. Mr. LePage was served with the subpoena to appear before the

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Board around January 20, 2017. He received another ROE from Stock dated January

24, 2017, stating he had quit. Mr. LePage testified he did not quit. If he had, he would

have provided a letter of resignation.

[617]

Mr. Phinney testified that it was his understanding that both Mr. LePage

and Ms. Bishop did not attend the full meeting in September. In order for them to be

rehired they have to follow through Stock’s hiring process which had been

communicated to them. He stated the reason they are not working for Stock had

nothing to do with the August trip (ibid, pp. 611-612).

[618]

There was no dispute that the demands made by Stock’s representatives

on the trip (Ms. Blades and/or Ms. Power), or its dispatcher (Mr. Taggart) were

demands made by Stock.

[619]

Stock argued the trip was stopped before the drivers’ hours were

exceeded and, therefore, there could be no breach of Drivers Regulation 12(2). Board

counsel stated whether the HMC drivers exceeded their hours is irrelevant. A mere

request satisfies a breach of this provision.

[620]

The Board concurs with Board counsel that the intent of this

comprehensive Drivers Regulation, when read in its entirety, is to ensure the safe

operation of these vehicles. As noted above, a tired driver runs the risk of causing an

accident, which can result in the injury or death for passengers on the HMC and others

travelling on the highway. The Board finds that in seeking to achieve the safe operation

of these vehicles, the Drivers Regulations are to prevent a motor carrier from requesting

its drivers to drive after they exceed their permitted hours on duty.

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[621]

In this case, the Board finds Stock went beyond a mere request; rather, it

made demands. The Board finds Stock made numerous demands of its HMC drivers to

drive after they exceeded the safety hours on duty contrary to s. 12(2) of the Drivers

Regulations.

[622]

The first demand was made by Stock’s representatives on the trip around

Brossard, Quebec while the drivers were travelling through Southern Quebec. The

Board finds this demand alone constitutes a breach of the Drivers Regulations 12(2).

[623]

The demands, however, continued throughout the trip until they reached

St. Hyacinthe, Quebec, including after contacting Stock’s dispatcher, Mr. Taggart, who

was in contact with Mr. Phinney throughout the day.

[624]

The Board also finds that Mr. Taggart’s call to Ms. Bishop while on the bus

between Brossard and St. Hyacinthe constituted a further demand upon her to drive

beyond her permitted hours on duty.

[625]

[626]

Each of the demands constitutes a breach of Drivers Regulations 12(2).

The Board further finds it was Mr. Phinney who was in charge of this

movement and gave the directions. Mr. Phinney testified to being contacted throughout

the day. The Board finds this is consistent with all other movements of the HMC. It is

also consistent with Ms. Blades’ testimony, that when she contacted Mr. Taggart, she

was to call Mr. Phinney. Furthermore, it is also consistent with the fact that it was

communicated to her that the reason why she had to call Mr. Phinney was because he

was responsible for the finances of the trip. This would include whether hotel rooms

and the additional food would be funded for the 33 drivers. The Board finds Mr.

Phinney was responsible for the directions and demands given to the HMC drivers.

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[627]

The significance of this breach is the fact that Stock has been operating

for years, in particular, extra-provincial and intra-provincial charters since 2013. These

hours for driving, rest and on duty apply to all vehicles designed to seat more than 10

people under both the Drivers Regulations and the Nova Scotia Regulations. Everyone

in Stock’s organization, in particular, its Regional Manager, dispatchers, representatives

on its trips, and all drivers should know these rules and regulations fully which should be

adhered to at all times and implemented appropriately. This is discussed in more detail

under the Remedies section.

[628]

In St. Hyacinthe, when Ms. Blades made her first call to Mr. Taggart to tell

him that Ms. Bishop and Mr. LePage are correct, she is told “Troy knows”. The Board

finds either Mr. Phinney knew the Regulations all along or he had been informed the

Union was stopping the trip.

[629]

The Board finds that the only relevant distance between locations on

Google Map, if any were actually done during this trip, is the one between Brossard,

Quebec and Dartmouth at the time the first demand was made.

[630]

The most significant component of these demands is Stock’s ultimate

reaction to its HMC drivers. As noted above, safety is the Board’s number one concern.

In addition to all other authority, under s. 27(1) and 29 of the MC Act, the Board has the

authority and power to give effect to Rules, Regulations, etc. The Board’s findings on

this issue relate to the Board’s regulation and licensing of motor carriers and their

operation of these vehicles in accordance with the laws and regulations. Furthermore,

its findings are completely separate and apart from, and have no impact on, any

proceeding before, or findings by, the Labour Standards Board.

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[631]

There is a dispute as to whether the words “or else” were included with the

demands after the representatives contacted Mr. Taggart. First, the Board finds Stock’s

actions speak louder than words. Ms. Bishop and Mr. LePage never worked for Stock

again.

[632]

The Board finds the employment of these two non-unionized employees

was terminated by Stock because they would not drive after they exceeded their safety

hours on duty as Stock had demanded of them. Some of the facts relevant to the

Board’s findings are Mr. LePage’s first ROE of November 24, 2016, said his

employment with Stock was terminated because there was not enough work. Mr.

LePage and Ms. Bishop were spare drivers and well qualified; Ms. Bishop having

licenses to drive all of Stock’s vehicles, including the HMC. As spare drivers, they did

not have a designated or specific route. Other spare drivers had worked for

Ambassatours during the tourism season in September and October, and would be

permitted to return as a spare drivers. Both attended Stock’s September school bus

drivers meeting. After Mr. LePage received his subpoena to appear before the Board in

this proceeding, he received a second ROE in which the stated reason for termination

coincides with Stock’s defence. The Board finds the first ROE to be most relevant.

[633]

From a regulator’s perspective, the Board finds this action sent a clear and

profound message to Stock’s 600 employees in Nova Scotia, if not all 1,600 across

Canada, being: you are to do as you are told, even if you are directed to act contrary to

the safety regulations, or you could lose your job.

[634]

Second, the Board accepts the evidence of Ms. Bishop and Mr. LePage

that, from the words communicated to them, they understood that if they did not drive

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the HMC back to Dartmouth, they would lose their jobs; and they did lose their jobs.

Stock argued the Board should not find Ms. Bishop to be honest as a result of her

querying that Stock adjusted her trip inspection reports regarding the tires. The

originals were produced and showed the inspection reports were not altered. Ms.

Bishop testified any alteration allegation was an assumption on her part. The Board

found the drivers to be honest. Although Ms. Bishop and Mr. LePage were at times

excited or emotional, it is what they said, as opposed to how they said it, that the Board

accepts.

[635]

As noted above, the Board finds Stock made demands of its HMC drivers

to drive after their permitted accumulated hours on duty contrary to Drivers Regulations

12(2).

(F)

Stock requested its drivers falsify their Daily Log contrary to s.

86(2) of the Commercial Vehicle Drivers Hours of Service

Regulations under the MVT Act

[636]

Drivers Regulation 86(2) reads:

86 (2) No motor carrier shall request, require or allow any person to enter and no

person shall enter inaccurate information in a daily log, whether it is handwritten or

produced using an electronic recording device, or falsify, mutilate or deface a daily log or

supporting documents.

[637]

The Drivers Regulations are very comprehensive in ensuring tired drivers

are not operating these large vehicles on the highway.

[638]

Drivers’ logs are their records of the hours they are on duty, driving, and

rest periods.

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[639]

Ms. Bishop stated if she drives the HMC after her permitted hours on duty

and records it in her log, it may result in a fine and her losing her license to drive the

vehicles. There is no suggestion Stock wanted its three HMC drivers to lose their

licenses.

[640]

Consequently, Ms. Bishop testified that the demand for her to drive after

her permitted hours on duty was also a demand for her to falsify her log books:

Mr. Smith:

Ms. Bishop:

Mr. Smith:

Ms. Bishop:

Nobody told you to falsify your logbooks.

If we had of drove straight through, yes, we would have.

You're relying on an inference, aren't you?

Okay. If we're driving straight through, how do you not go over your log

hours? [Emphasis added]

[ibid, p. 364]

[641]

The Board concurs. The Board finds Stock’s demand that its HMC drivers

drive, after they had exceeded their permitted hours on duty congruently was a demand

to falsify their driver’s logs contrary to Drivers Regulation 86(2).

VIII REMEDIES

[642]

The Board found Stock failed to operate and furnish services in conformity

with the Motor Carrier Act and Motor Vehicle Transport Act, regulations, rules, Orders,

schedules and its Licenses as it:

1.

used its HMC to transport passengers from and/or to the Province of Nova

Scotia contrary to section 4 of the MVT Act;

2.

used its HMC to transport students from Newbridge upon a highway within

the Province of Nova Scotia, contrary to s. 7(1) of the MC Act;

3.

used its HMC and its school bus Vehicle Unit No. 25486 to transport

students from Newbridge free of charge, contrary to s. 22 of the MC Act;

4.

failed to make the HMC available or use the HMC for the purposes set out

in the Licenses;

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5.

resisted and willfully obstructed inspectors in the execution of their duties

and powers by not cooperating and providing all requested information to the

Motor Carrier Division, contrary to s. 35(2) of the MC Act,

6.

failed to charge rates for charter services in conformity with its Licenses

contrary to s. 22 & 23(1) of the MC Act;

7.

leased its HMC with Newbridge for the transport of students, contrary to s.

7(1) & s. 22 of the MC Act, and,

8.

the following breaches which became known to the Board in the

proceedings:

(a) misled the Board;

(b) joined two licenses together without authority to do so contrary to s.

8(g) of the Board Public Passenger Motor Carrier Act Regulations;

(c) transported school officials from the Halifax Regional School Board

contrary to its Licenses;

(d) in addition to the above breaches, used various vehicles including its

school and activity buses and HMC, and/or operated school bus

services, contrary to s. 7(1) of the MC Act;

(e) demanded its drivers drive the HMC after they exceeded their

permitted hours of being on duty contrary to s. 12(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act; and

(f)

requested its drivers falsify their Daily Log contrary to s. 86(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act.

[643]

Pursuant to s. 22, these failures are good and sufficient cause for the

cancellation, suspension and/or amendment of the Licenses. For ease of reference it

reads:

Failure to Comply

22

A motor carrier shall operate and furnish service in conformity with the license

issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier. [Emphasis added]

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[644]

When deciding to amend, suspend and/or cancel a license, under s. 19(2),

the Board is to take into consideration the factors enumerated in s. 13 which states:

Factors considered

13

Upon an application for a license for the operation of a public passenger vehicle

or for approval of the sale, assignment, lease or transfer of such a license, the Board may

take into consideration

(a)

any objection to the application made by any person already providing

transport facilities whether by highway, water, air or rail, on the routes or between

the places which the applicant intends to serve, on the ground that suitable

facilities are, or, if the license were issued, would be in excess of requirements,

or on the ground that any of the conditions of any other license held by the

applicant have not been complied with;

(b)

the general effect on other transport service, and any public interest that

may be affected by the issue of the license or the granting of the approval;

(c)

the quality and permanence of the service to be offered by the applicant

and the fitness, willingness and ability of the applicant to provide proper service;

(ca)

the impact the issue of the license or the granting of the approval would

have on regular route public passenger service;

(d)

any other matter that, in the opinion of the Board, is relevant or material

to the application.

[645]

The language of s. 13 is designed for an application before the Board.

Considering these in a Show Cause proceeding, the language is adapted for that

purpose. As noted in the Re Trius Inc. Decision (dated September 22, 1993), these

various factors may overlap and conflict, and the weight to be given to each will differ,

depending upon the facts of each case.

[646]

license issued to it. The above breaches constitute significant non-compliance.

[647] The Board finds Stock used its vehicles, including its school buses, as it

Both ss. 13(a) and 22 consider whether a licensee has not complied with a

wished, in disregard to the Acts, Regulations, orders, rules, schedules and its Licenses.

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[648]

The Board also finds Stock was dishonest and/or misleading to the

inspectors, the Director of the MCD, and the Board. Furthermore, it went to great

lengths to eliminate or shield evidence of the use of this HMC. This included:



deliberately, provided false information to a customer, Mr. MacEachern, of

Newbridge, to pass along to the MCD.



asked for dates from the MCD, when Mr. Phinney knew the dates;

failed to provide known information when requested by Inspector Parker

and Ms. Aisthorpe;



deliberately provided false and/or misleading information in some of its

responses to Board IRs;

failed to provide any information to some of the Board IRs including dates

and drivers’ logs;

failed to produce and/or maintain any documents, emails, telephone calls,

notes, or supporting documentation;

failed to follow the Company’s processes for tracking its vehicles

movements including failing to input the information into Stock’s computer

system; and



attended before the Board without information about the vehicles

movements.

[649]

These are significant for the Board in its administration of the MC Act, a

relevant consideration under s. 13(d). Dishonesty, misleading, and resisting conduct

also does not illustrate a fitness, willingness and ability to provide quality services under

s. 13(c). It is not in the public interest either (s. 13(b)).

[650]

A motor carrier that has been deceitful is difficult to regulate. This is

exemplified by the Saint John trip Stock provided for Newbridge. But for a posting on

Newbridge’s Facebook page with a picture of Stock’s HMC, the movement would not

have been detected by the MCD or the Board.

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[651]

A motor carrier which has not followed its Licenses, the Acts, Rules and

Regulations, including safety Regulations of drivers’ hours on duty and has not honestly

answered questions of inspectors of the MCD and the Board, would not receive a

license in the first instance under s. 13 of the MC Act. If it would not receive a license,

should it retain its current Licenses?

[652]

The Board finds one of the most critical breaches is Stock’s demand that

the drivers operate the HMC after they exceeded their permitted hours of being on duty

as set by the Drivers Regulations of the MVT Act. The Board also found the demand to

work beyond their safety hours on duty was congruently also a demand for them to

falsify their drivers’ logs. Furthermore, by terminating the employment of the two

unprotected non-unionized employees, the Board finds Stock gave a clear message to

its 1,600 employees across Canada and, particularly to the 600 employees in the

Province, that you either do as you are told by Stock, even going beyond the safety

regulations, or you will lose your job.

[653]

breaches affect all services operated by Stock under these Licenses.

[654] Public passenger vehicles, in particular HMCs, are very large and most do

Safety is essential. It is the Board’s number one concern. Safety

not have seatbelts. A tired driver may cause an accident resulting in serious injury or

death to the passengers on board and others travelling on the highway. There is no

contest between one of these vehicles crossing out of its lane and people travelling in a

car.

[655]

This affects public interests under s. 13(b). The public is interested in

having motor carriers and their vehicles meet the objects of the Motor Carrier Act of

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providing safe, quality, transportation services. The public is interested in motor carriers

ensuring all passengers travelling in these vehicles are safe, as well as the other people

travelling on the highways in Nova Scotia and Canada. The public’s interest also

includes not only having access to these transportation services for themselves, but

having these safe transportation services available for tourists coming to Nova Scotia.

The latter is important to the Province’s economy (Discount Decision, para. 16 quoting

the Ivany Report).

[656]

Demanding staff drive beyond the safety hours on duty also does not

constitute “quality” service under s. 13(c).

[657]

The Board finds Stock’s representative drivers for the Northern Ontario trip

did not know the Drivers Regulations which are essential to the safe operation of public

passenger vehicles. The Board finds Stock’s failure to ensure its representatives knew

these safety provisions lessens its “fitness or willingness” to provide safe public

passenger services, under s. 13(c).

[658]

This lack of fitness and willingness is taken to a lower level, if one is to

believe Mr. Phinney that he was also unaware of these Drivers Regulations. Stock is

deemed to know the law. A casual familiarity with the Acts and Regulations is

insufficient. It is completely unacceptable for Stock’s Regional Manager to just breeze

through the Acts and the safety regulations. Mr. Phinney has an obligation to be

completely informed. If Stock wants to operate public passenger vehicles, which can

potentially cause injury or death to the public, it needs to fully abide by the Acts and

Regulations, which means knowing them, implementing them, and ensuring everyone

within the organization abides by them.

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[659]

The Board, however, does not believe Mr. Phinney about his lack of

knowledge. For almost every breach, Mr. Phinney pleaded ignorance of the Acts,

Regulations and Orders, as an excuse. As stated above, the Board found he lacked

credibility. However, if he were truly that ill-informed, it, alone, demonstrates a

deficiency in Stock’s fitness and willingness to provide quality services and to operate in

accordance with the Acts, Rules, Regulations and its Licenses.

[660]

The Board further finds the message, to do as you are told or you will lose

your job, may impact any of Stock’s employees such as mechanics, and dispatchers, as

well as the drivers. If mechanics are to ignore mechanical problems with these large

vehicles or lose their employment, the same s. 13 factors are in issue. As an example,

when the MCD contacted Stock for a random inspection of its HMC on August 17, 2017,

Mr. Phinney testified he needed the HMC and that Stock’s mechanics found no

imminent safety issues. The MCD inspection the following day, found 15 issues, three

relating to the brakes, that had to be repaired before the HMC was allowed to operate

again.

[661]

Under s. 13(a) the Board also considers whether there is an excess of

requirements, including an excess of vehicles. As noted in the Stock Decision, the

Board stated Stock’s HMCs were not needed in the Province and, if licensed, would

result in an excess of vehicles. Stock did not meet the test of s. 13, and without the

very restrictive amendments requested by Stock to only use them for overflow cruise

ship services, the HMCs would not be licensed for any service.

[662]

Subsection 13(b) considers the general effect on the transportation

services. Being a division of the largest bus company in the world and the largest bus

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company in Nova Scotia, Stock can hinder, if not destroy, achieving the objects of the

MC Act in providing safe, quality public passenger transportation services for Nova

Scotia. With over 500 public passenger vehicles in the Province, Stock could continue

to operate outside its Licenses and/or charge little or nothing, undercutting all licensed

motor carriers until none remain in business. This would, in turn, affect services in rural

areas.

[663]

The Board is most concerned with the safety of the public including school

children.

[664]

The Board asked counsel to specifically address the issue of the

cancellation of the school bus services on the MC License 595 in their closing

arguments.

[665]

Stock’s counsel emphasized the Company has been operating school bus

services for over 20 years.

[666]

Stock also argued the Company is more than Mr. Phinney. Although the

Board appreciates the latter, from the evidence before the Board, the Board finds Stock

failed to properly monitor the activities of Mr. Phinney and the conduct of other

employees involved with these breaches and instructions they were given.

Furthermore, there is no evidence before the Board that Stock has safety policies or

educational programs in place.

[667]

For the school bus services on its MC License 595, the Board is

conflicted. Safety of school children is very important. On the one hand, it is persuaded

by the arguments of Stock’s counsel that Stock has operated these services for 20

years and they constitute 98% of Stock’s transportation services. From the evidence

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before the Board, it would appear that on most days the drivers may not be on duty for

extended hours.

[668]

On the other hand, the Board finds Stock to be misleading (at times

deceitful) and has operated its vehicles, including its school buses, in disregard for the

Acts, regulations, rules orders, schedules and its restricted Licenses.

[669]

After considering all facts, arguments, breaches, and s. 13 of the MC Act,

the Board has decided that while it will not cancel Stock’s Licenses in their entirety, it

will cancel all services under the Licenses, other than the school bus services, which for

these Licenses are under MC License 595.

[670]

The following are some of the key issues to be addressed for all services,

including any interim terms for cancelled services between now and their termination

dates:

1.

The message to do as you are told (when it would breach the Acts,

regulations (in particular safety), rules, orders, schedules, and/or Stock’s

Licenses (the Acts) or lose your job is eliminated;

2.

3.

Staff are aware of the Acts, in particular, all safety provisions;

Everyone follows the Acts, in particular, all safety provisions; and

Stock provides means of assurance of future compliance.

4.

[671]

The Board has been considering dates and interim terms outlined below to

address some of these issues for the services to be cancelled. The Board seeks from

Stock or its counsel (Stock), and Board counsel, their comments and/or alternative or

additional recommendations the Board should consider, as well as addressing the other

issues, such as interim assurance of Stock’s compliance. The Board will hold an oral

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hearing, as soon as possible, at a date agreed to by counsel or set by the Board, to

hear from Stock and Board counsel to set termination dates and determine what, if any,

interim amendments, terms, conditions and/or orders should be made to the cancelled

services between now and their termination dates.

[672]

The 2017 cruise ship season has concluded. Therefore, the Cruise ship

services under Schedule F(4) of the MC License 595 and HMC designation under

Schedule E(4) are cancelled immediately.

[673]

Charter services under Schedules F(1) of both Licenses cancelled on

January 15, 2018. In the interim:



Stock would only operate single day charters where the driver is on duty

for 16 hours or less and driving 12 hours or less;

For all vehicle movements, Stock will generate and maintain all

documents and records including supporting documents for drivers’ hours;

Until January 15, 2018, Stock drivers executing the shorter charters have

completed a safety educational program as noted below; and

Stock may need to subcontract with a licensed motor carrier for the

operation of longer charters.

[674]

The above interim terms would also apply to contract services and

counsel can speak to appropriate dates for their cancellation, if any are presently being

operated by Stock. If any contract services are being operated, Stock would be doing

so without Board approval as all contracts on its Licenses have expired, although not

removed from its Licenses upon the completion dates.

[675]

The Board will provide Stock with an opportunity to present

recommendations to address all breaches and concerns set out in this Decision,

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including the key issues noted above, as they may relate to its current school bus

services.

[676]

Stock’s school bus services under MC License 595 are for Annapolis

Valley Regional School Board Schedule F(3) which expired July 31, 2017; and for the

CSAP under Schedule F(2) which ends June 30, 2018. Specifically, the Board requests

comments from Stock and Board counsel about safety for school bus services, including

any issues regarding drivers’ hours and the retention of any appropriate documents.

[677]

Amongst other terms and conditions to address the various issues in this

Decision, the Board has been considering some general requirements. These include:



Stock filing with the Board an educational program addressing the Acts, in

particular, safety issues, including drivers’ hours and documents;



A date to be set for the filing of that program;

Another date set for Stock to report to the Board that all staff have

received this educational training; and



New drivers to successfully complete the education training before

operating Stock’s vehicles.

[678]

Issues 1 and 4 above are more challenging. The Board looks forward to

the recommendations of Stock and Board counsel to address these.

[679] Stock’s plans and/or recommendations shall be provided to Board counsel

by November 30, 2017, for his/her comments and/or alternative or additional

recommendations the Board should consider. The Board will hold an oral hearing after

the filing of recommendations, at dates agreed to by counsel or set by the Board, to

hear from Stock and Board counsel and determine what, if any, amendments, terms,

conditions and/or orders should be made to the school bus services to address all

breaches and concerns and to ensure the safety of the students.

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[680]

The Board will retain jurisdiction to complete the above.

IX

CONCLUSION

By a Notice of Show Cause Hearing Stock and two staff were directed to

[681]

attend before the Board to show why its MC License 595 and XP License should not be

cancelled, amended, and/or suspended for failure to operate and furnish services in

conformity with its Licenses, including the MC Act, MVT Act and their regulations.

[682]

After hearing from all witnesses and considering all evidence and

arguments, the Board finds Stock has repeatedly operated its public passenger

vehicles, including its school buses, as it wished. As Mr. Phinney stated about the first

May trip, ”we did it anyway”. Stock acted contrary to the Act, rules, regulations, its

Licenses, and orders; even drivers’ safety regulations. It was cavalier about these.

[683]

The Board also finds Stock repeatedly conducted itself in a manner to hide

its delinquent operations from being detected. First, while knowing the information,

Stock did not answer the questions of the Inspector and the Director of the MCD;

provided misleading and/or incomplete information to them; and in one instance, gave

false information to a customer to forward onto the MCD. Second, for some operations

it did not generate its normal business records including not inputting the movements

into its computer programs or maintaining any documentation including those required

to be kept with drivers’ daily logs to ensure compliance with those regulations.

[684]

would attend before the court and pay a fine, if ordered.

[685] Much of the information became known to the Board through these

When its delinquent operations were detected and it was ticketed, Stock

proceedings and often only after most of the other witnesses had testified. However,

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the Board finds Stock also provided false, misleading and/or incomplete information to

the Board in this proceeding, including failing to provide full and accurate responses to

Information Requests (IRs). Its evidence at times was evasive, incomplete, and/or

appeared made up as the proceedings advanced. As Board Counsel noted, knowing

that these Licenses were in jeopardy of being cancelled, it was surprising how little

information Mr. Phinney brought before the Board to address some of these issues.

[686]

The Board finds Stock failed to operate in accordance with the Act, order,

rules, regulations and its Licenses as follows:

1.

used its HMC to transport passengers from and/or to the Province of Nova

Scotia contrary to section 4 of the MVT Act;

2.

used its HMC to transport students from Newbridge upon a highway within

the Province of Nova Scotia, contrary to s. 7(1) of the MC Act;

3.

used its HMC and its school bus Vehicle Unit No. 25486 to transport

students from Newbridge free of charge, contrary to s. 22 of the MC Act;

4.

failed to make the HMC available or use the HMC for the purposes set out

in the Licenses;

5.

resisted and willfully obstructed inspectors in the execution of their duties

and powers by not cooperating and providing all requested information to the

Motor Carrier Division, contrary to s. 35(2) of the MC Act;

6.

failed to charge rates for charter services in conformity with its Licenses

contrary to s. 22 & 23(1) of the MC Act;

7.

leased its HMC with Newbridge for the transport of students, contrary to s.

7(1) & s. 22 of the MC Act; and

8.

the following breaches which became known to the Board in the

proceedings:

(a) misled the Board;

(b) joined two licenses together without authority to do so contrary to s.

8(g) of the Board Public Passenger Motor Carrier Act Regulations;

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(c) transported school officials from the Halifax Regional School Board

contrary to its Licenses;

(d) in addition to the above breaches, used various vehicles including its

school and activity buses and HMC, and/or operated school bus

services, contrary to s. 7(1) of the MC Act;

(e) demanded its drivers drive the HMC after they exceeded their

permitted hours of being on duty contrary to s. 12(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act; and

(f)

requested its drivers falsify their Daily Log contrary to s. 86(2) of the

Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act.

[687]

The Board finds Stock’s conduct in the operation of its vehicles in Nova

Scotia, including conduct (at times deceitful) to mislead the MCD and the Board exhibits

a deficiency in its fitness and willingness to provide safe quality and proper services in

accordance with the Act, rules, regulations and orders, even the safety regulations.

Furthermore, Stock failed to demonstrate a commitment to implementing the Act, rules,

regulations and orders, even the essential safety regulations.

[688]

[689]

The totality of these breaches is a significant concern for the Board.

In addition, Stock’s repeated demands that its drivers drive after their

regulated permitted 16 hours on duty is very disconcerting. It is contrary to the essential

safe operation of these vehicles. An accident involving one of these large vehicles can

cause serious injury or death to the passengers on board as well as to others travelling

on the highway, in particular, those is cars.

[690]

By terminating the employment of the two non-unionized employees who

resisted these demands, the Board finds, as the regulator, that Stock sent a message to

its other employees that they are to do as they are told or they could lose their job.

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[691]

The Board is most concerned with the safety of the public including school

children. The Board asked counsel to specifically address the issue of the cancellation

of the school bus services in their closing arguments.

[692]

After considering all facts, arguments, breaches, and s. 13 of the MC Act,

as outlined in the Remedies section above, the Board decided it will not cancel Stock’s

Licenses in their entirety, but will provide Stock with an opportunity to present

recommendations to address all breaches and concerns set out in this Decision as they

relate to its current school bus services. The Board will hear from Stock and Board

counsel before deciding what, if any, terms, conditions and/or orders may be

appropriate for Stock’s current school bus services to address these and in particular to

ensure the safety of students. All other services on the Licenses are cancelled. The

Board will also hear from Stock and Board counsel as soon as possible about the dates

of termination and what, if any, interim terms and conditions should be ordered; other

than for the overflow cruise ship services and use of the HMCs which are cancelled

immediately, as the cruise ship season for 2017 is finished.

[693]

[694]

The Board retains jurisdiction to complete the above.

An Order will be issued accordingly.

DATED at Halifax, Nova Scotia, this 14^thday of November, 2017.

______________________________

Dawna J. Ring

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SCHEDULE “A”

LEGISLATION

[695]

The relevant sections of the MVT Act are:

Operation without licence prohibited

4 Where in any province a licence is, by the law of the province, required for the

operation of a local bus undertaking, no person shall operate an extra-provincial bus

undertaking in that province except under and in accordance with a licence issued under

the authority of this Act.

Issue of licence

5 The provincial authority in each province may, in its discretion, issue a licence to a

person to operate an extra-provincial bus undertaking in the province on the like terms

and conditions and in the like manner as if the extra-provincial bus undertaking were a

local bus undertaking.

Tariffs and tolls

6 Where in any province tariffs and tolls for local bus transport are determined or

regulated by the provincial authority, the authority may, in its discretion, determine or

regulate the tariffs and tolls for extra-provincial bus transport on the like terms and

conditions and in the like manner as if the extra-provincial bus transport were local bus

transport.

[696]

The Commercial Vehicle Drivers Hours of Service Regulations under the

MVT Act include:

commercial vehicle means a vehicle that

(a) is operated by a motor carrier and propelled otherwise than by muscular power; and

(b) is a truck, tractor, trailer or any combination of them that has a gross vehicle weight in

excess of 4 500 kg or a bus that is designed and constructed to have a designated

seating capacity of more than 10 persons, including the driver.

Daily Driving and On-duty Time

12 (2) No motor carrier shall request, require or allow a driver to drive and no driver shall

drive after the driver has accumulated 14 hours of on-duty time in a day.

Daily Off-duty Time

14 (1) A motor carrier shall ensure that a driver takes and the driver shall take at least 10

hours of off-duty time in a day.

86 (2) No motor carrier shall request, require or allow any person to enter and no

person shall enter inaccurate information in a daily log, whether it is handwritten or

produced using an electronic recording device, or falsify, mutilate or deface a daily log or

supporting documents.

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[697]

The relevant sections of the MC Act for this proceeding include:

Interpretation

2

In this Act,

…

(f)

“motor carrier” means a person operating, either by himself or another, a motor

vehicle with or without trailer attached, as a public passenger vehicle;

(i) “public passenger vehicle” means a motor vehicle operated by or on behalf of a

person carrying on upon any highway the business of a public carrier of passengers, or

passengers and freight, for gain and includes a school bus;

(j)

“school bus” includes a motor vehicle, operated by or under an arrangement with

a school board as defined in the Education Act, for transporting pupils and teachers to

and from school or for any school purposes, including the transportation of pupils and

teachers to and from school social, dramatic, musical or athletic functions or

competitions, teachers’ institutes and similar activities;

License and compliance required

7

(1)

Except as herein provided, no person, either as principal or by an agent

or employee, shall operate a public passenger vehicle upon a highway within the

Province

(a) without holding a license issued by the Board allowing the vehicle to

be so operated; or

(b) in a manner, at a place or for a purpose that is not authorized by the

terms of his license.

(2) No motor carrier shall operate a public passenger vehicle under the license

issued to him other than a public passenger vehicle designated in such license.

Temporary authority

9

(1)

Notwithstanding any other provision of this Act or the regulations, when it

is made to appear to the Board that there is an immediate or special need for the

provision of a service in the transporting of passengers the Board, in the discretion of the

Board, and without advertisement, public hearing or other proceedings, may grant a

temporary authority or trip permit to a person to provide the service on such terms and

conditions as the Board prescribes.

(2)

A temporary authority granted under this Section authorizes the person

to whom it is granted to provide the service specified in the authority for or within the time

specified in the authority, not exceeding ninety days, but shall create no presumption that

a corresponding permanent authority or license will be granted thereafter.

(2A)

A temporary authority granted pursuant to this Section may be extended

by the Board for a period not exceeding ninety days beyond the time specified in the

authority.

(2B)

A trip permit shall specify the trip and vehicle to which it applies.

(2C)

No more than six trip permits may be issued to one person within any

twelve-month period.

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(3)

A violation of or failure to conform to a term or condition of a temporary

authority or trip permit granted under this Section constitutes a violation of this Act.

Effect of license

10

(1)

No license shall be deemed to confer any perpetual or exclusive right.

Factors considered

13

Upon an application for a license for the operation of a public passenger vehicle

or for approval of the sale, assignment, lease or transfer of such a license, the Board may

take into consideration

(a)

any objection to the application made by any person already providing

transport facilities whether by highway, water, air or rail, on the routes or between the

places which the applicant intends to serve, on the ground that suitable facilities are,

or, if the license were issued, would be in excess of requirements, or on the ground

that any of the conditions of any other license held by the applicant have not been

complied with;

(b)

the general effect on other transport service, and any public interest that

may be affected by the issue of the license or the granting of the approval;

(c)

the quality and permanence of the service to be offered by the applicant

and the fitness, willingness and ability of the applicant to provide proper service;

(ca)

the impact the issue of the license or the granting of the approval would

have on regular route public passenger service;

(d)

any other matter that, in the opinion of the Board, is relevant or material

to the application.

Determination by Board

14

After public hearing or without public hearing, as the case may be, the Board

shall issue the license applied for or grant the approval sought, or refuse to issue or grant

the same, or issue a license for the partial exercise only of the privilege applied for.

Terms and conditions of license

16

The Board may attach to the exercise of the privileges granted by a license for

the operation of a public passenger vehicle such terms and conditions as in the judgment

of the Board public convenience and necessity require.

Cancellation of license

18

Notwithstanding Sections 19 and 24, the Board without public hearing may

(a)

cancel any license authorizing the operation of a public passenger

vehicle if the Board is satisfied that the licensee has not, within sixty days of the

issue of the license, provided the service authorized by the license to be provided

by him;

(b)

cancel any license authorizing the operation of a school bus, if the Board

is satisfied that the service authorized by the license is not being provided.

Variation or suspension or cancellation of license

19 (1) The Board may, at any time or from time to time, amend or suspend any

license or may, for cause, and after a hearing upon such notice as the Board may direct,

cancel any licence.

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(2)

When deciding whether to amend, suspend or cancel a license pursuant

to subsection (1), the Board shall take into consideration the factors enumerated in

Section 13.

Failure to Comply

22

A motor carrier shall operate and furnish service in conformity with the license

issued to him and in conformity with this Act and all orders, rules, regulations and

schedules made hereunder, and the failure of a motor carrier so to conform shall, in

addition to constituting an offence against this Act, be good and sufficient cause for the

suspension or cancellation or both by the Board of the license issued to the motor carrier,

or for the suspension or cancellation by the Board of part of the license or of any

authorization issued to the motor carrier.

Passenger or baggage charge

23

(1)

All charges made by a motor carrier for any service rendered or to be

rendered in the transportation of passengers or baggage or in connection therewith, shall

be in accordance with the schedules fixed and approved by the Board to be charged by

such motor carrier and any charge not made in accordance with the schedules is

prohibited and declared to be unlawful.

Abandonment of service or cancellation of license

24

(1)

No motor carrier shall abandon or discontinue any service provided for in

his license for the operation of a public passenger vehicle without an order of the Board

which shall be granted only after a hearing upon such notice as the Board may direct.

Power and authority of Board

27

(1)

The Board has power and authority to

(a)

grant to any person a license to operate or cause to be operated a public

passenger vehicle over specified routes or in respect of specified points or

geographic areas or generally throughout the Province, either as a regular or an

irregular service;

…

(c)

fix the rates, fares or charges or the maximum and minimum or

maximum or minimum rates, fares or charges that a motor carrier is authorized to

charge for the transportation of passengers, baggage and parcel express and the

schedules and service that a motor carrier must observe and provide;

…

(e)

do such other acts and things as are necessary or advisable for the more

effective exercise of its powers and the more effective administration of this Act

and the regulations.

Public hearing

27A

The Board may, on its own motion, and shall, when requested by the Governor in

Council, hold a public hearing on any matter respecting public passenger vehicles which,

in the opinion of the Board or the Governor in Council, as the case may be, is necessary

to better carry out the intent and purpose of this Act.

Enforcement powers of Board

29

The Board shall have power and authority by general order or otherwise to give

effect to the rules, regulations or decisions respecting motor carriers, public passenger

vehicles and passenger vehicles other than public passenger vehicles.

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Public Utilities Act

30 Except where inconsistent with this Act or the regulations, the provisions of the

Public Utilities Act relating to the constitution, powers, procedures and practices of the

Board shall apply to and in respect of the Board when acting under this Act.

Inspector

34

(1)

The Minister may appoint a person or persons in the public service to act

as inspector or inspectors under this Act.

(2)

The inspector or inspectors shall enforce the provisions of this Act and

the regulations that pertain to the conduct of motor carriers and shall take all necessary

measures under this Act to prevent the operation of any motor carrier without such motor

carrier having first complied with the terms and provisions of this Act and the regulations,

and shall perform such other duties as the Minister may from time to time determine.

Power to stop vehicle and require inspection

35

(2)

A person who resists or wilfully obstructs an inspector in the execution of

his duty or the exercise of his powers under this Act or the regulations is guilty of an

offence against this Act and liable to the penalties prescribed by Section 37.

Offence and penalty

37

Any motor carrier who violates or fails to observe any provision of this Act or any

order, rule or regulation made under this Act, or who demands, collects or receives any

compensation for any service performed by him other than that set out and contained in

the schedule of rates, tolls, fares or charges fixed and approved pursuant to this Act, or

filed with the Board, as the case may be, for services performed by such motor carrier, or

who fails to observe or to comply with a term or condition of his license shall be guilty of

an offence and shall be liable for the first offence to a penalty of not less than two

hundred and fifty dollars nor more than five thousand dollars, and for any subsequent

offence to a penalty of not less than five hundred dollars nor more than five thousand

dollars, and in default of payment to imprisonment not exceeding sixty days or to both

penalty and imprisonment.

[698]

The most pertinent sections of the Utility and Review Board Act, S.N.S.

1992, c. 11, as amended (UARB Act) are:

Functions, powers and duties

4

(1)

The Board has those functions, powers and duties that are, from time to

time, conferred or imposed on it by

(a) this Act, the Assessment Act, the Expropriation Act, the Gasoline and Diesel

Oil Tax Act, the Health Services Tax Act, the Heritage Property Act, the

Insurance Act, the Motor Carrier Act, the Municipal Government Act[,] the Public

Utilities Act, the School Boards Act, the Shopping Centre Development Act, the

Tobacco Tax Act or any enactment; and

Rules of practice and procedure

12

The Board may make rules respecting practice and procedure in relation to

matters coming before it.

Jurisdiction

22

(1)

The Board has exclusive jurisdiction in all cases and in respect of all

matters in which jurisdiction is conferred on it.

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(2)

The Board, as to all matters within its jurisdiction pursuant to this Act,

may hear and determine all questions of law and of fact. [Emphasis added]

[699]

The Board’s Regulatory Rules made under the UARB Act applicable to the

MC Act include:

16

and shall

(2)

A Response to Information Request shall be in accordance with Form B

provide a full and adequate response to each question;

(a)

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