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Vehicles Subject to Tolls, a Study in Statutory Interpretation
Published in the July 2008 issue of Transportation Notes - View Article
If your trailer is towed on a private toll road by a transportation company which rented the trailer, and if the latter dishonestly avoids paying the tolls, are you responsible for those charges? In Ontario you are, as in any well ordered Republic you should be! This conclusion applies even more forcefully if you know what’s going on and do nothing to protest.
Running across the north of the city of Toronto is the 407 Express Toll Route, a privately owned open-access toll highway. The operators of Highway 407 have a statutory right to recover charges for use of the road. Charges are collected in two ways. Some users have a “toll device” affixed to their vehicles. Each such device must be registered and where such a device is used, the person whose name appears in the registry is responsible for the charges. Large (over 5,000 kg) vehicles are required by law to have such devices installed. For any vehicle which does not have a toll device, charges are based on the vehicle licence plate. The person to whom the plate was issued is responsible for the charge.
The problem considered by the Ontario Court of Appeal in the case of Blue Star Trailer Rentals v. 407 ETR Concession Company arose because some operators of large trailer-pulling vehicles cheat. They enter the highway with a toll device affixed to the windshield of their vehicle, but remove the device before exiting. In this fashion, they have avoided paying part of the tolls for which they are primarily responsible.
When this happens the operators of the toll road are not able to establish the length of the journey taken by the cheater. While the system involves the installation of cameras which capture licence plate numbers, these cameras capture only the rear plate. In a typical situation, the rear plate of the tractor portion of a tractor-trailer rig is obscured by the trailer. The only plate which can be identified is that on the trailer.
In the case of a rental trailer, the owner of the trailer will not be primarily responsible for the charges. But for the fact that the tractor operator cheated, he would be required to pay. Can the charges he has avoided be properly passed on to the trailer owner?
Blue Star, which is in the business of supplying trailers on a rental basis, was not in a good position to play the “fairness and equity” card. Although it is not explicitly stated in the Court’s decision, one has to assume Blue Star knew what was going on. The Court does note that Blue Star did nothing to discourage its customers from using Highway 407, that it was in a good position to recoup any losses from its customers and that generally it did not take formal steps to protest the bills it received for some 845 trips over a period of approximately 10 years.
It was against this rather shabby background that the Court engaged in an exercise of statutory interpretation: What is a “vehicle” in the context of this statutory scheme? Blue Star argued that “vehicle” could not include “trailer” and that there was accordingly no statutory basis for the charges.
The court of first instance adopted a rather facile and unconvincing test. It noted that the 407 Act and the Highway Traffic Act should be read in conjunction (so far, so good) and that thus read they require that a toll device be affixed to the windshield of the vehicle. As a trailer does not have a windshield, it must not be a vehicle.
The fallacy in this argument is the failure to note that not all vehicles are required to carry toll devices. All that can properly be deduced is that if a vehicle is fitted with a device, that device must be affixed to the windshield.
Although the first instance judge made this error, she was correct in noting that the 407 Act could only be properly interpreted by considering it in conjunction with the closely related Highway Traffic Act. The Court of Appeal pursued this interpretation further and, it is submitted, arrived at an altogether sensible result. A trailer can indeed be a vehicle for the purposes of this statutory scheme.
The Court began with a statement of general principle: where a statutory provision to be interpreted is found in an Act that is itself a component of a larger statutory scheme, the entire scheme must be taken into account. Thus, the 407 Act refers to two groups of persons who must pay tolls. The first is the group which uses “toll devices”. However, to learn what a toll device is and to understand the way such devices are regulated, one must refer to the Highway Traffic Act and regulations under that Act. The second class of persons required to pay tolls are those to whom licence plates are issued. Again, the rules respecting the issuance of plates are found in the Highway Traffic Act.
These, among other connections, led the Court to conclude that the 407 Act is “a component of the larger statutory scheme in the Highway Traffic Act (and) there is a presumption that the words in the two statutes. . . are used harmoniously, coherently and consistently”.
The Highway Traffic Act defines “vehicle” to include a “trailer”. Given the presumption of consistency among statutes which form part of a coherent scheme, this is a strong indication that Blue Star was heading for a loss, as was in fact the case.
Although the examination of the use of the word “vehicle” within the statutory scheme would have sufficed to determine the case, the Court went on to the third stage of classic statutory analysis. It considered the purpose of the charging provisions. This was to permit open access to Highway 407 from public highways while providing the owners of the toll road an effective way of collecting tolls. The system for capturing images of licence plates was put in place by the government of Ontario when it built the road some ten years ago. It was designed to capture the rear plate and that is the way it works today. When a tractor is towing a trailer, the rear plate of the tractor will not be visible. Accordingly, unless the trailer owner can be made subject to a charge, the purpose of the provision can be defeated by dishonest truckers who attempt to foil the system by removing their toll devices after entering the highway.
Blue Star made a final argument. The trailers were not “operated”. The Court disposed of this is three short paragraphs. Blue Star is obliged to pay the tolls.
Blue Star v. 407 ETR Concession
2008 ONCA 561