Bill 87 2008

An Act to regulate the motor vehicle towing industry in Ontario

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Purpose

   1.  The purpose of this Act is to regulate the towing industry in Ontario so that the public may have access to towing services of high quality provided in accordance with honesty and integrity and at a reasonable cost.

Interpretation

   2.  In this Act,

"board" means the board of directors of the Council; ("conseil d'administration")

"Council" means the Towing Industry Council of Ontario established under section 12; ("Conseil")

"highway traffic incident management" means a systematic, province-wide, multi-agency effort to improve the management of highway incidents, including but not limited to crashes, disabled and abandoned vehicles, criminal seizures of vehicles and articles, debris in the roadway, work zones, highway patrols, adverse weather, and other events and emergencies that impact the transportation system; ("gestion des incidents de la route")

"Minister" means the Minister of Government and Consumer Services or another member of the Executive Council to whom responsibility for the administration of this Act is assigned; ("ministre")

"operator" means a person who carries on a towing business, whether in whole or in part; ("exploitant")

"person" means an individual, an association, a partnership or a corporation; ("personne")

"prescribed" means prescribed by the regulations; ("prescrit")

"Registrar" means the Registrar appointed under section 17; ("registrateur") 

"registration" includes a certificate or permit issued with respect to the registration of an operator, tow truck driver or tow truck under section 3; ("inscription")  

"regulations" means the regulations made under this Act; ("règlements")

"representative of the towing industry" means an individual who is registered under this Act or who is a shareholder or a partner in a towing business or who, prior to the coming into force of this Act, offered towing services to the public or was a shareholder or a partner in a towing business, or any other individual that the Council considers to be a representative of the towing industry; ("représentant de l'industrie du remorquage")

"towing business" means the business that consists of offering or providing towing services to the public; ("enterprise de remorquage")

"tow truck" means a motor vehicle, including a wrecker and a flatbed tow truck, equipped with a mechanical or hydraulic device used to lift, tow, winch or otherwise move another motor vehicle, but does not include,

  (a)  a motor vehicle owned and used exclusively by a governmental entity,

  (b)  a motor vehicle towing a race car, a motor vehicle for exhibition or an antique motor vehicle,

   (c)  a recreational vehicle towing another vehicle,

  (d)  a motor vehicle used in combination with a tow bar, tow dolly or other mechanical device if the vehicle is not operated in the furtherance of a commercial enterprise, or

  (e)  a motor vehicle that is controlled or operated by a farmer and that is used for towing a farm vehicle; ("dépanneuse") 

"tow truck driver" means a person who operates a tow truck for the purpose of providing towing services to the public; ("conducteur de dépanneuse")

"towing services" includes storing vehicles that have been towed and storage services in which a towing business has a financial or contractual interest. ("services de remorquage") 

Registration of towing business required

   3.  (1)  No person shall carry on a towing business unless the person is registered as an operator under this Act.

Registration of tow truck required

   (2)  No person shall operate or permit another person to operate a tow truck for the purpose of carrying on a towing business unless the tow truck is registered under this Act.    

Registration of tow truck drivers required

   (3)  No person shall operate a tow truck for the purpose of providing towing services unless the person is registered under this Act.

Prohibition

   (4)  An operator shall not retain the services of a person as a tow truck driver unless the person is registered as such under this Act.

Clarification of requirement for registration

   (5)  A person who owns or operates a fleet of motor vehicles for the purpose of carrying on a business is not required to register as an operator under subsection (1) if the person's business does not include the provision of towing services to the public, but only with respect to the motor vehicles in the fleet.

Same

   (6)  The person described in subsection (5) shall ensure that a tow truck driver retained for the purpose of towing motor vehicles in a fleet and any tow truck operated by the driver are registered under this section.      

Application for registration   

   4.  (1)  A person who wishes to be registered as an operator or a tow truck driver, or to register a tow truck, under section 3 shall apply to the Registrar in accordance with the prescribed procedures.  

Eligibility

   (2)  A person is eligible to be registered as an operator or a tow truck driver if the person meets the prescribed requirements.

Same

   (3)  A tow truck may be registered if it meets the prescribed requirements. 

Registration of persons

   5.  (1)  The Registrar shall register a person if the person has made an application in accordance with the prescribed procedures and is eligible for registration.

Registration of tow truck

   (2)  The Registrar shall register a tow truck if the applicant for the registration has made an application in accordance with the prescribed procedures and the tow truck is eligible for registration.

Referral of application

   (3)  The Registrar shall refer an application for registration to the registration committee,

  (a)  if the Registrar considers on reasonable grounds that the person may not be eligible to be registered; or

  (b)  despite subsection (1), if the Registrar considers on reasonable grounds that terms, conditions or limitations should be imposed on the registration.

Effect of referral

   (4)  The registration committee shall determine whether the person or tow truck may be registered and whether the application for registration has been made in accordance with the prescribed procedures and may impose such terms, conditions or limitations on the registration as the committee considers appropriate. 

Variation of terms, conditions or limitations

   (5)  The registration committee may vary or remove any of the terms, conditions or limitations on a registration in such circumstances as may be prescribed. 

Application for variation

   (6)  A person who wants to have any of the terms, conditions or limitations on a registration varied or removed shall apply in accordance with the prescribed procedures. 

Suspension of registration

   6.  (1)  The Registrar may suspend a person's registration on any of the grounds set out in the regulations.

Same, tow truck

   (2)  The Registrar may suspend the registration of a tow truck on any of the grounds set out in the regulations. 

Application for reinstatement

   (3)  A person whose registration is suspended may apply to have it reinstated and shall do so in accordance with the prescribed procedures. 

Same

   (4)  The Registrar shall decide an application for the reinstatement of a suspended registration in accordance with the prescribed criteria.

Revocation of registration

   7.  The board may revoke the registration of an operator or a tow truck driver,

  (a)  if the operator or driver is found guilty of an offence that, if committed in Ontario, would be an offence under the laws of Canada or of Ontario and that renders the person unsuitable to registered;

  (b)  if the operator or driver fails to comply with this Act, the code of ethics or any other regulation made under this Act; or

   (c)  in such other circumstances as may be prescribed. 

Appeal of decisions

   8.  (1)  An applicant for a registration or a registered person, as the case may be, and the Council may appeal a decision of the registration committee with respect to the applicant or person to the board. 

Same, Divisional Court

   (2)  The applicant or registered person, as the case may be, and the Council may appeal a decision of the board under subsection (1) to the Divisional Court. 

Appeal of revocation

   (3)  A person whose registration has been revoked under section 7 may appeal the decision to the Divisional Court.

Complaints and Discipline

Complaints committee

   9.  (1)  The complaints committee may consider and investigate the conduct of a registered person for any purpose related to towing, either pursuant to a complaint or on its own initiative, and for that purpose may appoint a person to investigate the circumstances of the complaint or other matter.

Powers of investigator 

   (2)  An investigator has the following powers and duties for the purpose of an investigation under this Act:

    1.  Upon request, the investigator shall produce evidence of his or her appointment.

    2.  The investigator may examine a document, record or other thing that he or she believes to be relevant to the investigation.

    3.  The investigator may demand that a document, record or other thing be produced for inspection if he or she believes it to be relevant to the investigation.

    4.  The investigator may remove a document, record or other thing for review and copying if he or she believes it to be relevant to the investigation.  The investigator shall return it within a reasonable time.

    5.  In order to produce a record in readable form, the investigator may use data storage, information processing or retrieval devices or systems that are normally used in carrying on business in the place in which he or she is conducting the investigation.

    6.  The investigator may question any person about matters that the investigator believes to be relevant to the investigation. 

Powers of entry

   (3)  An investigator may enter lands or business premises, other than a private dwelling, without the consent of the owner or occupier and without a warrant if the entry is for the purpose of an investigation under this section, or with a warrant issued under subsection (5). 

Entry to dwelling  

   (4)  An investigator shall not enter a private dwelling unless the investigator has obtained,

  (a)  the consent of the owner of the dwelling and, if the occupier of the dwelling is not the owner, the consent of the occupier; or

  (b)  the authority of a warrant issued under subsection (5). 

Warrant

   (5)  A justice of the peace may issue a warrant authorizing the person named in the warrant to do anything permitted under subsection (2). 

Requirements for warrant to issue

   (6)  A warrant may be issued under subsection (5) if the justice of the peace is satisfied on information under oath that,

  (a)  an investigator has been prevented from doing anything permitted under subsection (2) or there are reasonable grounds to believe that the investigator may be prevented from doing any of those things or that evidence relevant to the investigation may be destroyed; or

  (b)  it is necessary that a private dwelling be entered for the purposes of conducting the investigation or there is in the private dwelling a document or thing that there are reasonable grounds to believe is relevant to the investigation. 

Same

   (7)  Subject to subsection (8), the power to enter lands or business premises may be exercised at any reasonable time. 

Notice

   (8)  In the absence of a warrant under subsection (5), the power to enter lands or business premises shall not be exercised unless reasonable notice of the entry has been given to the owner of the property and, if the occupier of the property is not the owner, to the occupier. 

Prohibition, obstruction, etc.

   10.  (1)  A person shall not engage in any of the following activities:

    1.  Obstruct an investigator who is investigating a complaint or other matter under section 9.

    2.  Withhold or conceal from an investigator anything that the investigator reasonably considers to be relevant to his or her investigation.

    3.  Destroy anything that the investigator reasonably considers to be relevant to his or her investigation.

Offence

   (2)  A person who contravenes subsection (1) is guilty of an offence and on conviction is liable,

  (a)  to a fine of not more than $2,000 for a first offence;

  (b)  to a fine of not more than $10,000 for a subsequent offence. 

Disciplinary proceedings 

   11.  (1)  A disciplinary proceeding may be initiated against a registered person by the prescribed persons or entities and in accordance with the prescribed procedures. 

Same

   (2)  A disciplinary proceeding may be initiated if there are reasonable grounds to believe that the registered person has not complied with this Act or the regulations, in particular the code of ethics.

Discipline committee

   (3)  The discipline committee shall hear and determine the matter in accordance with the prescribed procedures. 

Powers of the committee

   (4)  The discipline committee may do any of the following things upon finding that the registered person has not complied with this Act or the regulations, in particular the code of ethics:

    1.  Revoke the registration.

    2.  Suspend the registration for a specified period.

    3.  Vary or impose terms, conditions or restrictions on the registration.

    4.  Direct the registered person to return all or part of the money paid by a person to the registered person. 

Effect of decision

   (5)  A decision of the discipline committee authorized by subsection (4) is final and not subject to appeal or review, and takes effect immediately. 

Towing Industry Council of Ontario

Council established

   12.  (1)  A corporation without share capital is hereby established under the name Towing Industry Council of Ontario in English and Conseil ontarien de l'industrie du remorquage in French. 

Composition

   (2)  The Council is composed of persons who are registered as operators or tow truck drivers under section 3.

Same

   (3)  A person whose registration is suspended is considered not to be registered during the period of the suspension.  

Non-application of Acts

   (4)  The Corporations Act and the Corporations Information Act do not apply to the Council, except as specifically made applicable by this Act or the regulations. 

Objects

   13.  (1)  The following are the objects of the Council: 

    1.  To regulate the towing industry in Ontario.

    2.  To govern the persons registered in accordance with this Act, the regulations and the by-laws made under it.

    3.  To establish, maintain and develop standards of qualification, performance standards and business ethics, including conflict of interest and standards for dealing with the public, among registered persons.  

    4.  To exercise such other powers as may be conferred, and to perform such other duties as may be imposed, under this or any other Act.

Public interest

   (2)  In carrying out its objects, the Council shall serve the public interest.

Powers

   14.  The Council has the capacity and the rights, powers and privileges of a natural person.

Board of directors  

   15.  (1)  The affairs of the Council shall be managed by its board of directors. 

Composition of board

   (2)  The board is composed of the number of individuals specified by by-law, not to exceed 20, and at least 40 per cent of the directors shall not be representatives of the towing industry.   

Appointment of certain board members by L.G. in C.

   (3)  The Lieutenant Governor in Council shall appoint the members of the board who are not representatives of the towing industry.

Other board members

   (4)  The remaining members of the board shall be representatives of the towing industry and shall be elected in accordance with the by-laws by persons registered with the Council under this Act.   

Eligibility

   (5)  An individual's eligibility to hold office as a director is determined with reference to the criteria set out in the by-laws. 

Term of office

   (6)  Directors hold office for the term specified in the by-laws. 

First board

   (7)  Despite subsections (2) to (6), the Minister shall establish the first board and appoint, subject to subsection (8), such persons as directors as the Minister considers appropriate to the board, and determine the length of their term of office.

Same

   (8)  Sixty per cent of the persons appointed to the first board by the Minister shall be representatives of the towing industry.

Committees  

   16.  (1)  The board of directors shall establish and maintain the following committees and such other committees as it considers appropriate:

    1.  A registration committee.

    2.  A complaints committee.

    3.  A discipline committee.

Panels

   (2)  The board of directors may authorize the registration committee, the complaints committee and the discipline committee to sit in panels for any purpose of this Act.

Same

   (3)  A panel of a committee shall be composed of three persons, at least one of which is a director appointed by the Lieutenant Governor in Council.      

Same

   (4)  A decision of a panel of a committee constitutes the decision of the committee. 

Powers of first board

   (5)  Until the first board establishes each of the committees required by subsection (1), the first board may exercise the powers and shall perform the duties of the applicable committee under this Act.

Registrar 

   17.  (1)  The board of directors shall appoint a Registrar from among the employees of the Council. 

Same

   (2)  The Registrar shall exercise the powers and perform the duties assigned to him or her under this or any other Act. 

By-laws and fees

   18.  The board may make by-laws relating to the administrative and internal affairs of the Council and, without limiting the generality of the foregoing, may make by-laws establishing the fees that are payable to the Council, specifying the amount of such fees, requiring persons registered under the Act and persons applying for registration to pay such fees and exempting persons from paying fees.

Annual report

   19.  (1)  Each year, the board shall give a report to the Minister containing such information as he or she requires.

Exception, first board

   (2)  Despite subsection (1), the first board is not required to give the Minister an annual report but shall give the Minister such information as he or she requests at such times as he or she specifies.

Powers of the Minister

   20.  (1)  The Minister may review the activities of the board and ask the board to undertake activities that, in his or her opinion, are necessary and advisable to carry out the intent of this Act. 

Same

   (2)  The Minister may advise the board with respect to the implementation of this Act and the regulations and with respect to the methods that the board uses or proposes to use to enforce the regulations and to implement its policies. 

Confidentiality of information  

   21.  (1)  Every director, member of a committee established by the Council or employee of the Council shall keep confidential any information obtained in the course of his or her duties performed under this Act, although they may disclose confidential information for the purposes of the administration of this Act. 

Offence

   (2)  An individual who knowingly fails to comply with the confidentiality requirement set out in subsection (1) is guilty of an offence and on conviction is liable,

  (a)  to a fine of not more than $15,000 for a first offence;

  (b)  to a fine of not more than $30,000 for a subsequent offence. 

Testimony in civil proceedings

   22.  (1)  A director, member of a committee established by the Council or employee of the Council cannot be compelled to testify in a civil proceeding with respect to information obtained in the course of his or her duties performed under this Act. 

Exception

   (2)  Subsection (1) does not apply with respect to a proceeding to enforce this Act. 

Immunity 

   23.  (1)  No action or other proceeding for damages shall be instituted against the Council, a director, member of a committee of the Council or employee or agent of the Council, including an investigator appointed under subsection 9 (1), for any act done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this or any other Act or for any alleged neglect or default in the performance or exercise in good faith of such a duty or power. 

Indemnification

   (2)  The Council shall indemnify a person described in subsection (1) for all costs, charges and expenses sustained or incurred by him, her or it relating to an action or other proceeding described in subsection (1), but not for any costs, charges and expenses that are caused by the person's own wilful neglect or default. 

General

Offence, false representation

   24.  Every person who makes a representation, knowing it to be false, for the purpose of obtaining a registration under this Act is guilty of an offence and on conviction is liable,

  (a)  to a fine of not more than $10,000 for a first offence;

  (b)  to a fine of not more than $20,000 for a subsequent offence. 

Public register

   25.  (1)  The Registrar shall maintain a public register of information about operators and tow truck drivers registered under this Act.

Public access

   (2)  Upon request, a member of the public may inspect the register at the head office of the Council during its normal business hours. 

Information

   (3)  The register must contain the following information and may contain such other information as the Council considers appropriate:

    1.  The name and business address of registered operators and tow truck drivers.

    2.  The name and business address of applicants for registration.

    3.  The name and business address of persons who were formerly registered and who ceased to be so within the preceding six years.

    4.  Particulars of any terms, conditions and limitations on a registration and any variations made to them within the preceding six years.

    5.  Particulars of any suspension or revocation of a person's registration.

    6.  The results of every disciplinary proceeding completed within the six preceding years in which,

            i.  a registered person was required to pay a fine, or

           ii.  a person's registration was revoked, suspended or had terms, conditions or limitations imposed on it.

    7.  Such other information as may be prescribed. 

Continuing disciplinary powers

   26.  (1)  Even though a person ceases to be registered, disciplinary proceedings may be initiated or continued under this Act with respect to the person's conduct while registered.

Same

   (2)  For the purposes of subsection (1), the discipline committee may exercise its powers and perform its duties with respect to a person who is no longer registered.

Evidence

   27.  (1)  A statement purporting to be certified by the Registrar as a statement of information from the records kept by the Registrar in the course of his or her duties is admissible in any proceeding as proof, in the absence of evidence to the contrary, of the information, without proof of the Registrar's appointment or signature. 

Same

   (2)  A copy of a document or record that is certified by an investigator appointed by the Council to be a true copy of it is admissible as evidence in any proceeding to the same extent as the original document or record and has the same evidentiary value as the original document or record.

Regulations 

   28.  (1)  Subject to the approval of the Minister, the board may make regulations,

  (a)  further defining "towing services" for the purposes of this Act;

  (b)  respecting eligibility for registration, standards relating to the provision of towing services, including standards in connection with highway traffic incident management requirements, education requirements, and the discipline of registered persons;

   (c)  prescribing such things as this Act requires or permits to be prescribed or to be done by regulation;

  (d)  prescribing classes of registration and imposing terms, conditions and limitations on any class;

  (e)  setting out criteria for determining what constitutes qualifying work experience for the purposes of subsection 4 (2) (eligibility for registration);

    (f)  prescribing circumstances in which a person is not eligible to be registered;

  (g)  establishing a code of ethics, including rules relating to disclosure of information to consumers of towing services, sales practices, treatment of complaints by members of the public and conflict of interest, governing the activities of registered persons and providing that a failure to meet the standards for ethical conduct set out in the code may result in suspension or revocation of a registration;

   (h)  prescribing information to be included in the public register maintained by the Registrar;

    (i)  establishing maximum fees that may be charged in respect of towing services provided by registered persons;

    (j)  providing for the identification of operators, tow truck drivers and tow trucks registered under this Act and requiring that they be properly identified, including the use of stickers or other identifying markers indicating the type of vehicles in respect of which an operator or tow truck driver is authorized to provide towing services; 

   (k)  requiring every person who carries on a towing business to obtain and maintain liability insurance, in at least the prescribed amount and in accordance with the prescribed conditions for such business, including deductibles;

    (l)  making any provision of the Corporations Act and the Corporations Information Act applicable to the Council, with such modifications as the Council considers necessary or advisable;

(m)  providing for any transitional matters that the board considers necessary or advisable in connection with the implementation of this Act, including providing that a regulation made under this clause applies despite this Act;  

   (n)  prescribing any matter that is necessary for furthering the Council's objects and is in the public interest. 

Same, Minister

   (2)  The Minister, acting alone, may make any regulation that the board, subject to the Minister's approval, has the authority to make under subsection (1). 

Same

   (3)  A regulation made by the Minister under subsection (2) prevails over a regulation made under subsection (1), and may amend or revoke a regulation made under subsection (1).

Maximum fee regulations

   (4)  The Minister shall not approve a regulation proposed under clause (1) (i) unless it has received the support of a majority of the directors appointed by the Lieutenant Governor in Council. 

Commencement

   29.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

   30.  The short title of this Act is the Towing Industry Act, 2008.

 

EXPLANATORY NOTE

The Bill provides for the self-regulation of the towing industry in Ontario in the public interest.  The Towing Industry Council of Ontario is established.  The Council, which is managed by a board of directors, is made up of operators of towing businesses and tow truck drivers who must register with the Council in order to carry on a towing business or operate a tow truck.  At least 40 per cent of directors are appointed from outside the industry to ensure that the public interest is represented. 

The activities of the Council are funded through the fees established by by-law of the board and paid by registered persons and applicants for registration. 

A complaints and discipline procedure is provided to ensure that registered persons are held accountable for the way in which they provide towing services.  Registrations may be suspended or revoked, if necessary.

The board of the Council is provided with regulation-making powers that are subject to the approval of the Minister of Government and Consumer Services.