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Court upholds port trucking company fine

Supreme Court decision sides with trucking commissioner in fining firm for underpaying drivers
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Container trucks rolling into the Port of Vancouver's Commissioner Street container terminal access corridor | Chung Chow

A B.C. Supreme Court judge has ruled against a container truck company seeking to overturn a $60,000 fine for underpaying one of its truckers.

According to the reasons for judgment released on Oct. 12, BC Supreme Court Justice Jan Brongers said the April 2021 decision from the BC Container Trucking Commissioner’s Office (OBCCTC) to fine Aheer Transportation Ltd. was not unreasonable.

Brongers added that he was “not persuaded that ... the process used [by then-commissioner Michael Crawford] to reach [the decision] was unfair.”

The fine stemmed from an OBCCTC audit that began in 2018 and was launched, the agency’s officials say, after the commissioner’s office received complaints from company drivers and independent operators working for Aheer.

The scope of the audit – originally only for September 2018 – was later expanded to include 2015 to 2019, which, according to court documents, found that Aheer had underpaid 36 independent operators by $73,390 during that period.

Aheer was subsequently instructed to remedy the situation, court records show.

When an auditor tried to verify if payments were made to correct the situation, Ramandeep Gill, one of the underpaid trucker drivers, said he received a $720.30 cheque that he felt was inadequate. Gill provided the auditor with some of Aheer’s payroll records, and the auditor determined that Gill was underpaid by $22,069.

In the March 2021 announcement of his intention to fine Aheer, Crawford said that, at the heart of the underpayment, was a hybrid hourly-and-trip rate payment system that was prohibited by B.C.’s Container Trucking Act and the Container Trucking Regulation. Crawford said Aheer used the system to determine how much to pay drivers like Gill.

“The hybrid prohibition was introduced in 2015 in response to the Recommendation Report – British Columbia Lower Mainland Ports [the ‘Ready/Bell Report’] ..., which noted that overly complex compensation models led to rate undercutting and created challenges in monitoring and enforcing rate compliance,” the 2021 Crawford-OBCCTC announcement said.

“... It was the recommendation of Ready/Bell that ‘trucking companies be prohibited from moving drivers from an hourly model to a trip rate model...’ on the basis that it is ‘important that drivers know whether they are employed with a company on a trip rate basis or an hourly rate basis and that such is clearly defined by the company at the outset of the relationship. As such, the regulated rates and the rates established by the Commissioner do not allow for alternate payments methods for specific classifications of drivers beyond those established.”

The OBCCTC added that Crawford’s $60,000 fine decision was made for a reason.

“This is Aheer’s first penalty for non-compliant rate payments but not its first violation of the rate payment requirements,” Crawford’s announcement said. “Aheer has demonstrated a history of noncompliance which includes non-compliant rate payments, unlawful pay deductions and mistreating a driver [the latter for which Aheer received its first administrative fine].”

But Aheer argued that the fine was unreasonably high because it was based on a threshold established by a 2018 fine against the company for $50,000 that had “no rational basis or justification.” Aheer had unsuccessfully challenged the OBCCTC’s decision in July 2021 against both the $60,000 fine and the $22,069 as the amount owed to Gill.

In court, Aheer submitted that the OBCCTC’s fines involving other drayage trucking licensees operating in B.C. were not consistent. The company also argued that because the amount owed to Gill is $73,390 over a four-year period, the $60,000 fine was “disproportionate and onerous.”

According to court documents, Aheer decided to pursue a judicial review of the OBCCTC’s decision as a result of the agency rejecting its petition.

The company argued that the agency “erred by entertaining a complaint [by Gill] ... that had allegedly taken place over four years earlier,” before Aheer was required to retain payroll records.

But, according to Brongers’ decision, the commissioner took into account “Aheer’s history of non-compliance, which resulted in the previous imposition of a $50,000 fine. Given that this fine apparently did not deter Aheer from further violations of the [Container Trucking] Act and the terms of its licence, the commissioner felt it appropriate to impose a larger fine in this case.”

Brongers also said in his decision that he did not see any evidence received by the OBCCTC on Gill’s complaint that would have warranted a dismissal of the complaint.

It is unclear if Aheer plans any further challenge to the OBCCTC fine.