On June 12, 2019, amendments to the Commercial Vehicle Drivers Hours of Service Regulations (the "Regulations") came into force. These amendments ("Amendments")1 result in significant changes for federally regulated commercial drivers in Canada.
With the Amendments, the federal government has mandated the use of electronic logging devices ("ELDs") in an effort to reduce out-of-service (OOS) detention time related to non-compliance with the Regulations, to reduce the risk of crashes, and to address the risk that information produced on paper-based daily logs are incomplete or falsified. The Amendments also aim to reduce costs and difficulties both for provincial and territorial governments and for the motor carrier industry associated with enforcing the Regulations. Other stated aims of the Amendments are to allow Canada to keep pace with current United States regulatory requirements, and to encourage fairer competition between interprovincial motor carriers, since the ELDs do not allow hours of service limits to be bypassed.2
This article describes the purpose of the Regulations, the main changes made by the Amendments, the motor carriers subject to the Amendments, and the impact of these federal changes on provincially-governed transportation.
The Purpose of the Regulations
The main purpose of the Regulations, adopted in 2005 following the recognition of fatigue as a critical risk factor for commercial drivers, is to limit the hours of service for federally-governed drivers of buses and trucks in order to ensure the reliability and safety of interprovincial transportation. To do so, the Regulations set out maximum numbers of hours that may be worked in roughly one- or two-week periods, and require that drivers log their time spent driving, on duty but performing other tasks, or off duty in order to demonstrate compliance with those limits.
Who is Affected?
The Regulations affect federally-governed motor carriers and their drivers, i.e. carriers either from outside Canada, or Canadian carriers that carry out interprovincial or international activities on a regular and continuous basis. To learn more about whether a transportation company is governed by federal or provincial laws, please refer to our article on the subject. Provincial and territorial enforcement entities are responsible for enforcing the Regulations, which they do by conducting roadside inspections and head-office audits of federally-regulated carriers operating within their jurisdictions.
Electronic Logging Devices (ELDs)
The Amendments mainly consist of the introduction to Canada of mandated ELDs, devices that must meet specific requirements for compiling drivers' on-duty and off-duty time. ELDs must be used by all companies that currently operate under the paper-based daily log, with some exceptions.
ELDs allow the entry of information related to drivers' records of duty, which will be presented to roadside enforcement in printed form, in display mode or by an appropriate transmission mode such as a USB key. The accuracy of the records of duty must be certified by the driver immediately after recording the information for the last entry for a day. The delays for drivers to send records to their motor carrier will be the same as the one currently in place for paper-based daily logs, i.e. 20 days.3
In the event of a malfunction, a paper-based daily log is permitted for a period of 14 days or upon return to the home terminal after the currently planned trip, and once this period has expired, the ELD must be replaced or repaired. The motor carrier is required to ensure that the ELDs installed in its commercial vehicles are properly maintained. Carriers that currently use older devices that do not comply with the Regulations (known as automatic on-board recording devices or "AOBRD" and referred to by the government as electronic recording devices or "ERD") may continue to use such devices for a period of two years from the coming into force of the Amendments.
ELDs will be subject to the Technical Standard for Electronic Logging Devices, incorporated by reference into the Regulations and approved by the Canadian Council of Motor Transport Administrators4 ("CCMTA"), and setting out specific requirements for ELDS including performance and design specifications.5 ELDs must now be certified by an accredited certification body in accordance with the requirements of the Regulations.
Some vehicles are exempt from the Regulations, such as commercial vehicles operated under a special a permit issued by a province or territory and those exempted under the federal Motor Vehicle Transport Act. Commercial vehicles manufactured before 2000 and vehicles that are leased on a short-term basis (maximum 30 days) will be excluded.6
Changes are also being made to the supporting documentation that must be kept by motor carriers at their offices. The Regulations now provide for an extensive list of supporting documents, namely any "documents or information received or prepared by a driver in the course of their duties or received or prepared by the motor carrier." However, most of the required documents are already generally kept by carriers for commercial and tax purposes.
A period of 24 months is planned for the certification and deployment of the new devices. It is expected that the certification body will take approximately 12 months to approve the ELD following the publication in the Canada Gazette of the Amended Regulations on June 12, 2019. Motor carriers will then have 12 months to comply with the new provisions and obtain an ELD. Consequently, the deadline for adoption of ELDs is June 12, 2021. For provincial and territorial governments, this period also provides an opportunity to train inspectors and to develop policies to enforce the ELD mandate. It also allows them to consider adopting or enhancing their own intra-provincial transportation regulations. The same implementation period is planned for supporting documents.
Impact on Intra-Provincial Transportation
As a result of these federal regulatory changes for drivers of commercial vehicles, it is expected that the provinces and territories will opt to harmonize their respective regulations7 by enacting similar provisions. It will also be interesting to see CCMTA's upcoming developments in this area.
With the Amendments to the Regulations, the Government of Canada has introduced an ELD mandate into Canadian law, reiterating its commitment to road safety and better aligning transportation laws and regulations with those of the United States.
McCarthy Tétrault's Transportation and Logistics Group has extensive experience advising motor carriers with respect to provincial and federal regulations governing hours of service and the broader regulatory environment in which they operate. For more information, please contact David F. Blair or Brian Lipson.
1 Regulations Amending the Commercial Vehicle Drivers Hours of Service Regulations (Electronic Logging Devices and Other Amendments), Canada Gazette, Part II, Volume 153, No. 12.
2 Canada Gazette, Regulations Amending the Commercial Vehicle Drivers Hours of Service Regulations (Electronic Logging Devices and Other Amendments), vol. 151, No. 50, December 16, 2017.
3 Ibid, s. 32.
4 The Canadian Council of Motor Transport Administrators is an organization responsible for Canada's road safety and the administrative and regulatory coordination of motor vehicle transportation, which includes the Société de l'assurance automobile du Québec (SAAQ), Transport Canada and the Ontario Ministry of Transportation.
5 Regulations Amending the Commercial Vehicle Drivers Hours of Service Regulations (Electronic Logging Devices and Other Amendments), supra note 1, s 24.
6 Ibid, s 77.
7 Regulation respecting the hours of driving and rest of heavy vehicle drivers, Highway Safety Code, CQLR, c. C-24.2, r. 28; Société de l'assurance automobile du Québec, Driving and off-duty time. O. Reg. 555/06: HOURS OF SERVICE; Ministry of Transportation, Commercial Vehicle Operators' Safety Manual.
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