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Industry Advisor

Industry Advisor

priority for TC legal counsel. For example, it was eventually discovered that during the 1990s and early 2000s only one court case out of approximately twelve, most of which were successful, was registered in case law.

Therefore, the implementation of AMPs might provide another interim option for TC enforcement officers if the enforcement is left to the discretion of the enforcement officer. Based on the factors to assess the severity of a violation, AMPs may also provide a more predictable penalty system and an unyielding pathway to prosecution without interference of internal legal counsel. 3. Refuse to pay the fine and continue to manufacture or import non-complying vehicles,

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4. Pay the fine and take corrective measures,

5. Prolong things through an appeal tribunal.

The Canadian RIAS, Part I, a process similar to the NHTSA notice of proposed rule-making (NPRM), blatantly omits the recourse TC would have against a company who does not conform in response to the issuance of a monetary penalty. It might be considered that a company would refuse to pay if the reason for the fine is refusal to comply. Where a company’s response to a TC monetary

DESCRIPTION OF FACTORS FOR ASSESSING THE SEVERITY OF A VIOLATION

Harm or Risk

Degree of Negligence or Deliberateness

Compliance History

Mitigation of Harm

Cooperation with TC

Detective of Contravention

The harm or risk posed by the non-compliance

How negligent was the company or person? Was the noncompliance deliberate or accidental?

Whether the non-compliance caused the company to benefit financially, or derive a competitive advantage

How the company or person acted to mitigate the risks once the issue was detected

The level of cooperation with Transport Canada in relation to the non-compliance

Whether the company or person reported the non-compliance, if it was discovered jointly, or discovered by TC alone

Where a TC enforcement officer issues a company a fine the company will have to decide on its options:

1. Refuse to pay the fine and take corrective measures,

2. Pay the fine and continue to manufacture or import noncomplying vehicles, fine is refusal to pay, that takes TC back to the only real power it has – to seize vehicles and/or lay charges under the Act. Therefore, AMPs could be just another link in the chain to delay inevitable prosecution. importation. However, denying importation requires collaboration with, and the discretion of, Canada Border Services Agency (Customs). TC has also been known to collaborate with NHTSA to take action against a U.S. manufacturer who is shipping non-compliant vehicles to Canada, but this is also at the discretion of NHTSA.

Another enforcement tool TC utilizes is collaboration with the provinces. The provinces in Canada have an outdated mandate for manufacturers to apply the federal national safety mark (NSM), but provinces do not consider federal standards a priority. Revoking an NSM may also serve as a deterrent in some cases, but TC’s legal authority for NSM cancellation is debatable.

The aforementioned enforcement methods are some tools TC uses to avoid prosecuting companies. However, the only enforcement powers afforded to TC under the Motor Vehicle Safety Act are through seizure, entering a facility without a warrant, and prosecution. All other tools are just support that TC solicits from other jurisdictions. It has also been proven that if these satellite jurisdictions see that TC is too dependent on them and is not doing its own part by using its own enforcement powers under the Act, the collaborating jurisdictions may take TC less seriously.

Therefore, assuming the enforcement officer must be on the company’s premises to issue a fine, the officer would have simultaneously opportunity to detain (seize) vehicles. Otherwise, there may not be enough incentive for the company to pay the fine and take corrective measures,

INDUSTRY ADVISOR (continued)

measures which could include conducting recalls. In other words; how is the delinquent manufacturer or importer held accountable under AMPs?

On the other hand, where noncomplying vehicles are found after being shipped and the fine can be issued remotely the vehicles would still have to be detained and reported to a justice until corrective measures are taken. When a vehicle (or vehicles) is detained and corrective measures are not taken, the vehicle(s) will serve and the Act differentiates between less serious summary convictions and more serious indictment convictions. Although, TC has, in the past, arbitrarily established an administrative policy for a company to apply for enforcement relief for inconsequential non-compliance. It could be discerned that the AMPs proposed in the RIAS provides an adjustment tool for the severity of a violation to determine the amount of the monetary penalty with the expectation that the company will pay the fine, or, AMPs can also

The Canadian RIAS, Part I, a process similar to the NHTSA notice of proposed rule-making (NPRM), blatantly omits the recourse TC would “

have against a company who does not conform in response to the issuance of a monetary penalty.”

as evidence for laying charges. If a fine is issued without seizure and the company refuses to pay the fine it may be more difficult to find vehicles for evidence.

Transport Canada states in the RIAS that AMPS would serve as an enforcement tool, “in the absence of an enforcement tool to address regulatory violations that would not warrant a prosecution, but for which a warning is not a sufficient response.” This is not clear in that the RIAS at issue does not provide any examples of what does not warrant prosecution. According to the Act, all violations warrant prosecution assist a judge in determining the penalty in sentencing. Using AMPs could also give some discretionary guideline to the enforcement officer in determining the compliance status of a company. Otherwise, AMPS may just be adding another link in the chain to prolong the steps toward prosecuting a delinquent company.

Understandably, TC avoids prosecution due to resource allocation, but the RIAS mentions adding four person years to administer AMPS. This is likely exactly the manpower that is needed to prosecute delinquent companies. Prosecution, which is clear under the Act, may be the ultimate deterrent after all. By doing some of its own enforcement TC may also gain some credence in the eyes of all the other agencies it tries to collaborate with and defensible prosecution, reinforced by AMPs, could set a long-lasting precedent in the industry.

The RIAS can be found in the Canada Gazette, Part 1, Vol 156, No. 19.

QAP STRAIGHT TALK

Top 10 QAPx TimeSavers You May Not Know About

by Chuck Hardy

NMEDA DIRECTOR OF QUALITY & COMPLIANCE

You already know QAPx is helping you process QAP jobs more efficiently. But you may not know all the tricks and hidden gems that could be saving you even more time. And who doesn’t want that? In this article, I am going to show you ten time-saving features of QAPx that you may not be aware of. Let’s get going!

Number 10 – Hidden links

Did you know you don’t have to open a new browser window to get to the NMEDA home page or directly to the QAP page on NMEDA’s website? Just click on the NMEDA logo or QAP logo in the header and in one click, you’re there!

Number 9 – VIN Lookup

That’s right, QAPx has its own built-in VIN lookup. Under the vehicle details section, just pop in a VIN and the year, make, and model will populate without you doing anything else. What could be easier?

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QAP STRAIGHT TALK (continued)

Number 8 – Training videos

Have you ever forgotten how to do something in QAPx? Do you have a new tech you’re training? Or do you just want to learn more about what QAPx can do? A lot of people don’t know that there is a library of training videos under the “Help” navigation. Just click on Help > Frequently Asked Questions, and you will see a list of over 35 training videos, including the whole enchilada (the complete course). So, the next time you forget how to upload a form, or how to submit a job, just click on the training video and get a quick refresher on how to do it. Not to mention, all of this can be done at your leisure, on demand.

Number 7 – Sorting

This is the easiest one to explain, but if you don’t know it’s there, you may never use it. To sort a column of data, just click on the words in the top title for the column and it will sort A-Z [and you will see a small blue up arrow] and click the title once again will sort in the reverse order Z-A [and you will see a small blue down arrow]. That’s it on sorting.

Number 6 – Quick access to Rules, Guidelines, and Bulletins

Now that the QAP Rules and Guidelines are all on-line, there is no need to keep paper copies around, right? but you know that already, duh…. And while you are already in QAPx, and have a question about the Rules or Guidelines, just click on the “quick link” in the top banner and BAM, there they are, like magic! We also put in a link to the QAP Bulletins, so you have a quick reference if you ever need it. You’re welcome.

Number 5 – Assigning techs to multiple locations

Got techs who work at more than one of your locations? QAPx has you covered. Click on “Administration” then “Accounts” then edit the tech you want to assign, and click on “Assigned Dealers.” From there, just pick each location you want them assigned to. And remember, if you want the tech to show up on the dropdown when you’re completing the equipment installation information, the tech has to be assigned to that store.

Number 4 – Filtering Results

QAPx outputs a lot of data. That’s what it’s supposed to do. But sometimes you want to pick just one job out of the data, or one label number, or one customer. All of that can be done in QAPx by using the filter feature. You see that little “funnel” looking icon at the top of each column of data? Well that little bugger is the “filter” icon. Click on that and you will get a popup, and on that popup, you can enter your search criteria and hit the “filter” button. For example, if you want to look up a specific last name, click the filter icon, in the popup, click “Contains” and then enter some or all of the last name in the search box, then hit ‘Filter’, and you will see only the last names that contain your criteria. Note that this filter is sensitive and if you click “exactly” it will only show exact matches. That’s why I like to use the “contains” option. It allows you to be a little sloppy and will give you anything close.

The last thing about filters, if you have one turned on (in use) that little funnel icon will be blue. I got freaked out a few times when my dashboard was all blank and I thought $!@# I lost all my jobs. But then I realized the filter was ‘ON’ and I just had to clear it. Don’t be a Chuck: Clear Your Filter!

Number 3 – Manager access to multiple locations

Are you managing multiple locations and want to be able to see QAPx jobs and information for each of your locations? QAPx can do that. But it does require a little up-front work. Just call the Help Desk or send a message to me asking to be assigned to multiple locations. Once you are set up, you can access any of your stores by clicking on the location you want— and you don’t have to log back out to jump between stores. Just go to the navigation and click on another store to jump around. Cool beans, aye?

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