Appearances:

I. Introduction:

¶ 1      The complainant, a long haul truck driver, was terminated by the employer after he was involved in a series of three accidents within about ten months that, in the employer's judgment, were preventable. Two of the accidents were serious in nature, in that they resulted in significant loss or damage to the employer's equipment. At the hearing, it was submitted, inter alia, on behalf of the complainant that the employer did not have just cause for termination because neither of the serious accidents was preventable. For reasons which follow, it is concluded that all three accidents were due to negligence on the part of the complainant and this constituted just cause for termination.

II. The Evidence:

¶ 2      There was a lengthy hearing in this matter, taking up thirteen hearing days over the period May 29, 2001, to October 18, 2002. In the course of the hearing, the parties presented extensive evidence pertaining to all three accidents, but with emphasis upon the two more serious accidents.

¶ 3      Mr. Richard D. Trott, the Director, Human Resources for the employer, was the employer's first witness. He testified to the nature of the employer's business, the training that drivers received upon joining the employer, and the structure of the employer's internal discipline and appeals process. He also gave evidence as to the policies that the employer applied in ruling an accident preventable or not preventable, and the part that he played in the termination of the complainant.

¶ 4      According to Mr. Trott, the employer was a successful less-than load (LTL) carrier with head offices in Ann Arbor, Michigan. It specialized in providing expedited service to next-day and second-day regional markets. Right from the start, Mr. Trott said, the employer experienced rapid growth. It expanded from the United States into Canada in 1992. By the time of the hearing, it was serving twenty five states and eight provinces, and had over 9,000 employees in the United States and Canada.

¶ 5      A model of the type of truck that the employer used in its business was entered into evidence. It showed that the truck consisted of a tractor unit connected to two tandem trailers. Mr. Trott explained that in the industry the two trailers were referred to as "pup" trailers, but the rear one was usually called the "kite." Each trailer was 28 feet long, 13.5 feet wide and 8.5 feet high. Connecting the pup trailers to each other was a device called a "dolly." This was a relatively small circular platform mounted on top of two wheels, with connectors for the trailers at the front and back.

¶ 6      The complainant, an experienced long haul driver, was hired by the employer in September, 1994. He was required to attend a three-day orientation course in Ann Arbor followed by a one-week training session at the employer's Toronto service centre, which was to be his home base. In the orientation session, Mr. Trott said, the complainant would have attended lectures and received materials concerning the employer's policies, including its safety standards and the criteria it applied in deciding whether an accident was preventable. These criteria essentially provided that there had to be zero negligence on the part of a driver for an accident to be ruled not preventable.

¶ 7      Mr. Trott also stated that when an accident happened with one of the employer's trucks, the Safety and Compliance office of the employer would conduct a thorough investigation and thereafter, the Director of Safety would make a ruling whether the accident was preventable or not preventable. If a driver wished to contest a ruling, he or she had access to an internal appeals process. The appeal was to the Safety Review Board, which consisted of two drivers, two personnel supervisors or terminal managers who used to be drivers, and the Director of Safety and Compliance. To ensure objectivity all appeals were on an anonymous basis, in that the names of driver/appellants and other potentially identifying information were withheld from the Board.

¶ 8      After a final decision was made that an accident was preventable, it fell to Mr. Trott to determine and impose an appropriate disciplinary response on behalf of the employer. If he decided to terminate a driver, the latter could make an internal appeal to the Employee Termination Review Board. The Board consisted of three senior managers. Its purpose was to ensure that Mr. Trott was being consistent and fair in his decisions. The Board also had the power to consider additional information brought up by the employee. According to Mr. Trott, the Board was far from a rubber stamp. In the past, it had reversed 5 - 10% of his termination decisions.

¶ 9      In the present case, the Safety Review Board reviewed all three of the complainant's accidents at the same time. Apparently, a mix-up in paperwork sidelined an appeal to the Safety Review Board in the complainant's first accident. As the months passed, the whole matter seemed to fade away in the mind of the complainant. The appeal was not vigorously pursued. Then, ten months later, the complainant had two more accidents within five days of each other. When the Director of Safety and Compliance ruled that these accidents were preventable, the paperwork mix-up came to light. Because the policy of the employer permitted termination based upon a pattern of preventable accidents, and the first accident appeared to the employer to form part of such a pattern, it was decided that in the interest of fairness all three of the accidents should be reviewed by the Safety Review Board.

¶ 10      For this purpose, an emergency meeting of the Safety Review Board was held on November 10, 1999. After considering the accidents, the Board upheld the rulings of the Director of Safety and Compliance that all three were preventable.

¶ 11      Mr. Trott said that when he was advised of the Board's determination, he decided to call the Toronto Service Centre and hold a conference call with the complainant. Also included in the conference call were Mr. Gerald Krisa, the then Director of Safety and Compliance; and, Mr. Pierce, the manager at the Toronto centre. According to Mr. Trott, his purpose in conducting the conference call was to take into account any additional information from the complainant that might influence his decision as to discipline.

¶ 12      The conference call lasted for about one hour. Mr. Trott explained to the complainant that the Safety Review Board had ruled that all three accidents were preventable. He asked the complainant whether he had any information to add about the accidents or further explanations that might bear upon the disciplinary decision to be made by the employer. The complainant made some additional representations but Mr. Trott found them to be unsatisfactory. He then advised the complainant that because he'd had two catastrophic accidents and one minor accident within a relatively short space in time, he was being terminated for neglect of duty regarding his safety obligation.

¶ 13      The complainant was then advised of his right of appeal to the employer's Employee Termination Review Board. He took advantage of this right and filed an appeal. After the members of the Board conferred with the complainant in a conference call, however, they decided to dismiss the appeal.

¶ 14      Mr. Trott indicated in his evidence that termination would have resulted even if the employer had used the demerit point system that it applied at the time in disciplining its U.S. drivers. Under the system, a driver was given, e.g., three demerit points for every preventable accident involving $5,000 or more in damage. If a driver received eight or more demerit points within a specified period of time, he or she would be subject to automatic termination. According to Mr. Trott, the complainant would have received ten demerit points for the three preventable accidents in question.

¶ 15      At the same time, Mr. Trott said, if even one of the three accidents leading to the complainant's termination was ruled non-preventable he would not have been terminated. This appeared to be a significant factor in the case, and extensive evidence was entered by both parties on the question of the preventability of each of the accidents in question. For purposes of the decision herein, it will be convenient to review this evidence on the following accident-by-accident basis:

(1) The First Accident: December 22, 1998:

¶ 16      This was a single-vehicle accident, solely involving the complainant's truck. It took place at about 8:00 - 8:30 p.m. on Highway 402, which leads from Highway 401 near London, Ontario to the border between Sarnia, Ontario and Port Huron, Michigan. At the time of the accident, the complainant was about thirty kilometres from the border. His truck left the road and jackknifed into a cluster of trees in the median. The tractor and trailers were a total loss. The complainant's back was injured. He was not able to resume his driving duties until six weeks later.

¶ 17      The complainant testified that at the time of the accident he was on his usual evening run to the Detroit area. The weather was pleasant and the highway was clear and dry. The truck's cruise control was probably on. All of a sudden, he said, he felt a tug on the steering wheel. He looked down to see if his jacket was interfering with the controls. At that point, the steering wheel turned and violently jerked. It knocked his glasses off and they were left dangling from one ear. Then the truck physically lurched and he was thrown around in his seat as if the truck had been broadsided. He looked up and saw the gravel shoulder of the road. He tried to turn the wheel but could not. It felt frozen.

¶ 18      At that point, the complainant continued, the truck tipped to the left and he could see that it was headed toward a crossover between the east and westbound lanes of the highway. When the truck hit the crossover it became airborne and then crashed into a cluster of trees just beyond it. He was thrown out of his seat belt and was wedged between the passenger seat and the dashboard. His feet were tangled in the controls. When he managed to crawl out of the driver's window of the truck and take a look, he said, it appeared as if the tractor had hit a tree dead centre. The lead trailer was jackknifed against the tractor. The rear or "kite" trailer was lying on its side in the ditch alongside the highway.

¶ 19      Although he was dazed and cold and had a back injury as well as cuts to his hands, the complainant said, he remained on the scene to be interviewed by the investigator from the Ontario Provincial Police, Constable Murray O. Finch; the Regional Safety Supervisor for the employer, Mr. Christopher Haworth; and, the adjustor from the employer's insurer, Lindsay Morden Claims Services. He said he was still there when the tractor unit was picked up by a tow truck, and at that time he noticed that one of its front wheels was hanging way down. A wheel didn't hang down like that, he said, unless there was something wrong with it.

¶ 20      The complainant further testified that in the days preceding the accident, he had felt a few jerks in the steering of this particular tractor unit. He said that he mentioned this to the day driver of the unit, Mr. Bob Willis, but Mr. Willis said that he had not noticed anything. Another driver, Mr. Michael O'Byrne, however, responded that he'd noticed a surge in the power steering of other tractor units.

¶ 21      Shortly after he spoke with the investigators, the complainant was taken to the hospital to be checked out and then to the employer's premises for drug and alcohol testing. It was common ground between the parties that the results of the drug and alcohol testing were negative. The complainant was not charged by the Ontario Provincial Police.

¶ 22      The Safety Supervisor for the employer, Mr. Haworth, testified that he concluded that the accident was not caused by faulty power steering in the tractor unit. The accident happened, he said, because the complainant fell asleep at the wheel. He based this conclusion upon several factors. Measurements that he made of the tracks of the truck in the light snow on the shoulder showed that the truck left the road at a gradual angle of 15 - 20 degrees. After leaving the road, the truck travelled in a straight line at this angle for a distance of 471 feet before hitting the crossover and becoming airborne. The track marks showed that the driver did not take any evasive action nor did he apply his brakes at any time, even though it would have taken 6.37 seconds for the truck to travel that far at a speed of 64 miles per hour, which was the speed at which the claimant said he was driving. When questioned at the scene of the accident, the claimant stated that he did not know why he did not apply the brakes. Mr. Haworth added that when he spoke to the police officer at the scene of the accident, Constable Finch, the latter said that he believed that the complainant fell asleep at the wheel; however, he was not going to charge the complainant because he thought the employer would handle it internally.

¶ 23      Several photographs of the accident scene were entered into evidence. The photographs were taken by Mr. Haworth and the representative of the employer's insurance adjustor, Lindsay Morden Claims Services. Mr. Haworth referred me to three photographs of tire tracks that he took on the night of the accident. These showed, he said, the gradual angle at which the truck left the road. When the claimant testified, however, he disputed Mr. Haworth's interpretation of the photographs. He said that another set of tire tracks in the photographs, showing a much sharper angle of departure from the road, were the tracks of his truck.

¶ 24      The complainant rejected any suggestion that he fell asleep at the wheel. He agreed that at the accident scene, he told Mr. Haworth that he could not explain why he did not apply his brakes. At the time, he said, he was probably shaken up. He said that he was cold and in shock when Mr. Haworth asked him the question. He then went on to explain that he did not apply the brakes because the truck was in gravel or dirt. If he slammed on the brakes, the truck might have turned over. He said the same thing was true for abruptly turning left or right. The best thing to do was to try to drive out of it.

¶ 25      The police officer who was at the scene, Constable Murray O. Finch, was called as a witness by counsel for the complainant. He said that he had fourteen years of experience in accident investigation and had investigated 130-140 truck accidents. When counsel referred him to the diagram that was included in his police report, which showed the truck veering off the road at a much sharper angle than 15-20 degrees, Constable Finch stated that the diagram was based upon what the complainant had told him. He said that the tracks that were made in the snow by the truck were more or less straight and not as shown in the diagram.

¶ 26      When he was asked whether it was his opinion that the complainant fell asleep at the wheel, Constable Finch replied that he had no evidence on which to conclude that the complainant fell asleep. The complainant appeared calm and cooperative. There was no medical condition apparent. The complainant told him that there had been a mechanical malfunction. As a result, there was no evidence on which to pursue a charge. Constable Finch added that if he had evidence that the complainant fell asleep, he would have charged him with dangerous driving.

¶ 27      On cross examination, counsel for the employer directed Constable Finch's attention to a report dated on the day of the accident, December 22, 1998, from the employer's insurance adjustors, Lindsay Morden Claims Services. The report stated, in pertinent part, "It is the writer's opinion with which Con-Way Central Express and the Ontario Provincial Police are in agreement, is (sic) that we suspect that the driver fell asleep at the wheel which resulted in the above accident." When Constable Finch was asked where the alleged agreement from the police might have come from, he replied that the opinion that the complainant fell asleep at the wheel might have been expressed by someone else in the police department.

¶ 28      After the on-scene investigation was completed, the employer had its maintenance department check out the tractor unit for mechanical failure. Mr. Michael Drima, the Director of Maintenance for the employer, testified that no mechanical problems were found.

¶ 29      The Director of Safety for the employer, Mr. Gerald Krisa, then sent the tractor unit to Peterbilt of Ontario Ltd. for an independent determination whether problems in its steering system might have caused the accident. Peterbilt assigned one of its technicians, Mr. Blair Payne, to check out the steering. Mr. Payne had been a truck technician since 1992, and held mechanic's licenses for automobiles, trucks and coaches.

¶ 30      Mr. Payne testified that the steering on the tractor unit should have been at its full working capability at the time of the accident. He said that he performed a thorough inspection and found no problems with the steering. There were no leaks in the power steering pumps or lines. There were no problems with the steering column, tie rods, kingpin or other components of the steering assembly. He said that he also performed a complete disassembly of the steering box to look for broken, damaged or worn parts. None was found. The results of the inspection were reported to the employer by Peterbilt in a letter to Mr. Krisa dated January 7, 1999.

¶ 31      When Mr. Krisa received the above report from Peterbilt, he reviewed it in conjunction with the reports from the complainant, Mr. Haworth, the Ontario Provincial Police, and Lindsay Morden Claims Services. As Director of Safety, Mr. Krisa had an extensive background in accident investigation and reconstruction. Like Mr. Haworth, he was trained in this field by the North American Transportation Management Institute (NATMI). It was his responsibility to rule on behalf of the employer whether the accident was preventable or not preventable.

¶ 32      Mr. Krisa testified that on the basis of the above reports he ruled that the accident was preventable. All of the evidence, he said, was consistent with the driver either failing asleep at the wheel or engaging in some other form of driver inattention. The photographs showed a gradual departure from the road. There were no braking marks. Contrary to the assertion of the complainant, there was no failure in the steering mechanism of the tractor unit.

¶ 33      On February 2, 1999, Mr. Krisa sent the following letter to the complainant:

According to Mr. Krisa, this was the highest level of discipline that could be issued short of termination. Even though the property damage that resulted from the accident was considerable, Mr. Krisa added, the complainant was not terminated because his prior safety record appeared to be good.

¶ 34      On February 16, 1999, the complainant sent the employer a handwritten letter stating that he "was not in agreement with the ruling of preventable accident" and requesting further proceedings for the purpose of reviewing the ruling. As previously indicated in this decision, this request became unintentionally sidetracked and, as a result, he was not advised until November 4, 1999, that the matter would be reviewed by the Safety Review Board.

(2) The Second Accident: October 25, 1999:

¶ 35      This was another single-vehicle accident, solely involving the complainant's truck. It resulted in minor damage to the employer's property. The accident happened when the complainant backed his tractor unit into a stationary post protecting fuel pumps at the employer's yard in Markham, Ontario. The post damaged the aluminum fuel tank on the right hand side of the tractor unit. It cost $1,256.00 to repair it.

¶ 36      According to the complainant, the accident happened when he was pressed for time. It seems from the evidence that the law only permitted truck drivers to drive for a certain maximum number of hours per day or week. Once the maximum was reached, it was no longer legal to drive. When he reported for work on Monday, October 25, 1999, the complainant only had 12.75 hours left to drive.

¶ 37      To make matters worse, the complainant said, he was taken off his regular route that evening and assigned to a run to Montreal. In performing this run, he was required to stop off at the employer's Markham yard to pick up some freight. When he arrived at the Markham yard, the terminal manager directed him to back into a warehouse door that, in the complainant's opinion, was virtually inaccessible. Because he did not want to get into an argument with the terminal manager and time was of the essence, the complainant said, he tried to comply with the terminal manager's directions. As a result, he hit the concrete-filled post protecting the fuel pumps.

¶ 38      It was unclear whether the complainant was or was not conceding that this accident was preventable. He stated that he had to take responsibility for the accident and agreed on cross examination that the manoeuvre was ill-advised and even professionally embarrassing. At the same time, he appeared to suggest that the terminal manager was primarily at fault because he directed him to back into a virtually inaccessible warehouse door. When the employer ruled that the accident was preventable, the complainant filed an appeal to the Safety Review Board.

¶ 39      Mr. Chris Haworth, who investigated the complainant's first accident on behalf of the employer, also investigated this accident. He said that it did not matter whether the terminal manager instructed the complainant to use a warehouse door that was difficult to access. The driver was responsible for his vehicle. If the complainant believed that the requested manoeuvre could not be performed safely, he said, the complainant should have insisted on a different door.

¶ 40      This view of the accident was echoed by Mr. Gerald Krisa, the Safety Director for the employer. Mr. Krisa stated that he ruled the accident preventable. He said that the complainant had more than ample opportunity to prevent the situation from being unsafe but he did not. According to Mr. Krisa, the complainant would have seen the concrete-filled posts while walking to the terminal office. He knew they were there. Yet he did not do anything to make the situation safer. Instead, he set himself up for failure by attempting to manoeuvre around an obstacle course that was of his own making.

(3) The Third Accident: October 30, 1999:

¶ 41      This was yet another single-vehicle accident. It occurred when, once again, the complainant was pressed for time while making other than his usual run. Apparently, the complainant was assigned to take a load to the employer's terminal on Dequindre Road in Pontiac, Michigan. He had only 11 hours within which to make the run and was held up at U.S. Customs for 2.5 hours. Unfortunately, once he got into the Detroit area, the complainant exited I-696 at 11 Mile Road instead of Dequindre and had to make a number of complicated manoeuvres to get back to Dequindre. The mistake cost him more time. When he finally got onto Dequindre, the complainant realized that he was travelling away from the location of the terminal rather than toward it. He made a U-turn so that he would be travelling in the proper direction and in the course of the turn, the rear or "kite" trailer overturned.

¶ 42      According to the complainant, by the time he realized that he was travelling in the wrong direction on Dequindre, he was in a rush. [See note 1 below] He knew that his log time for driving was running out and that the shipping and receiving personnel at the Pontiac terminal would soon be completing their shifts. Nevertheless, he said, he took all proper care before executing the U-turn. After passing through a set of traffic lights, he brought the truck to a stop. Although it was relatively late at night and there was little other traffic, he double-checked to ensure that the traffic was clear. At the same time, he noted that there was plenty of room on the road to accommodate a U-turn. The road was six lanes wide and, in addition, there was a wide entrance driveway to a strip mall that was adjacent to the road. Then he put the truck into first gear and proceeded to make the turn.

   Note 1:  This evidence was given in the course of the complainant's direct examination. When asked toward the end of his direct evidence and on cross examination about being in rush, however, the complainant denied it. He said that he was concerned about the log time he had left and was embarrassed and anxious, but denied being in a rush.

¶ 43      As the tractor unit and lead trailer came around to face the opposite direction on Dequindre, the complainant continued, he felt the truck lurch forward. Thinking that someone must had rear-ended his unit, he stopped and got out of the cab to take a look. To his surprise, he saw the kite trailer lying on its side. The complainant said that the lurch that he felt must have been the pintle hook of the dolly unit between the trailers pitching out of its coupling with the lead trailer as the kite tipped over onto its side.

¶ 44      The complainant insisted that he kept the truck in first gear while making the U-turn. He said that he started out in first gear because the wheels of the tractor unit were already turned. They were not in a straight line. He said that if he had started out in second gear, the truck would have stalled. In the course of the turn, the complainant added, he kept the truck in first gear, which meant that he could not have been going more than 5-7 miles per hour.

¶ 45      When a tow truck arrived on the scene, the driver of the tow truck opened the back door of the overturned trailer to see whether it could be righted without further damage. He noticed that some of the freight at the head of the trailer had been placed on top of three load decks. Load decks essentially were used by the employer to create a partial upper deck inside a trailer whenever it was impossible to stack skids of freight directly on top of those that were already on the floor. The load decks looked like rectangular tables about five feet deep, but were much heavier. They weighed about 475 pounds each. Once the load decks were positioned over top of the skids on the floor, warehouse employees placed more skids of freight on top of them. They then installed a horizontal load bar behind the skids to prevent them from moving backward in the course of the truck's run.

¶ 46      Apparently, it was necessary to use three load decks at the head of the kite trailer that evening because the skids beneath them had open containers called "gaylords" on them. The gaylords contained loose stampings for use in the automobile industry. The complainant testified that, in his opinion, the kite trailer overturned because the load shifted. As he made the U-turn, he said, the load within the trailer, as well as the loose parts inside the gaylords, must have shifted toward the right hand side, causing the trailer to become unbalanced and overturn. He added that it was likely that much of the shifting of the load took place earlier in the evening when he had to make a number of turns, including a tight U-turn at the employer's terminal in Mississauga, several severe turns due to construction at the border, and other U-turns while finding his way back from 11 Mile Road to Dequindre.

¶ 47      According to the complainant, he was not even aware that load decks had been used in the kite trailer until he saw them after the trailer had overturned. The procedures established by the company required them to be listed on the freight manifests to advise drivers of their presence but, for some reason, the three load decks in question were not listed on the manifest for the kite trailer.

¶ 48      The complainant indicated that when the tow truck driver looked inside the overturned trailer and saw the load decks and the way the load looked, he said that he thought the accident was due to a load shift. The complainant also testified that he overheard the tow truck driver say the same thing to the police officer who was investigating the accident. Neither the tow truck driver nor the police officer was called as a witness to confirm these alleged observations. The police report did not contain any reference to the rollover being caused by a load shift. The cause, the report said, was unknown. The complainant was not charged in connection with the accident.

¶ 49      The complainant further testified that he borrowed a polaroid camera from the employer's assistant terminal manager for the Pontiac terminal, who apparently came to the scene, and took pictures of the load inside the trailer. When he asked the employer for copies of the pictures, however, the employer denied any knowledge of them and asserted that it had produced for purposes of the hearing all of the photographs of the accident that were in its possession.

¶ 50      Mr. Robert B. Willis, the truck driver who drove the complainant's tractor unit during the day, was called to testify for the complainant. At the time he gave his evidence, he had moved on to another trucking company and no longer worked for the employer. He said that in the five years that he worked for the employer, he noted that the employer did a poor job of loading its trailers. In his opinion, they were accidents looking for a place to happen. No one kept track of where the weight was concentrated. The location of the heavier skids was never known for sure. They could be resting on top of load decks, which were five feet high and could bounce around during a run. He saw a lot of loads go out of the employer's terminals top-heavy. Since the surface of the road slanted to the right, he said, it would cause the load to shift to the right.

¶ 51      Mr. Willis added that Ms. Bonnie Ryan, the then Freight Operations Supervisor at the employer's terminal in Toronto, always wanted the trailers to be loaded high and light. At the same time, Mr. Willis agreed on cross examination that rollovers were very rare. In his five years of employment at the Toronto terminal, he'd only heard of one other driver rolling a trailer, and that was not really a rollover situation such as the one at hand.

¶ 52      Ms. Ryan was called to testify on behalf of the employer. She agreed that the three load decks were supposed to be listed on the manifest for the complainant's kite trailer but she mistakenly forgot to list them. By way of explanation, she said that her job was a hectic one. She had to supervise the loading of six to eight trailers, with four or five people loading each one, all within the space of a couple of hours. She had to inspect the loads to ensure that the trailers were not overloaded and then close them up. After that, she had to take the manifests for the loads into the office and enter all of the information on them into the computer.

¶ 53     According to Ms. Ryan, the complainant nevertheless had some indication that load decks had been used in the trailer. The loading diagram on the manifest showed that the front of the trailer was loaded seven feet high - an indication that load decks had been used. Moreover, she said, regardless of whether the complainant knew there were load decks inside the trailer, his lack of knowledge of their presence would not have contributed to the rollover. To prevent instability, she said, she always ensured that the lead trailer weighed more than the kite. In the present case, the manifests showed that the lead trailer weighed 18,900 pounds and the kite weighed 18,100 pounds. While the weights were close, they were within an acceptable range.

¶ 54      Ms. Ryan said that, in her opinion, the rollover could not have been caused by a load shift in the complainant's kite trailer. She said that she recalled very well the details of the load. When she heard about the accident, she pulled out her records to determine whether it was due to a problem with the way the trailer was loaded. The records showed that the weight of the load was evenly distributed throughout the trailer. Each load deck had two skids beneath and two skids on top. There was no room for lateral movement of the objects inside the gaylord containers that were on the skids. Likewise, lateral movement of the skids was highly improbable. The skids were four feet wide, for a total width of eight feet. This left, at most, three inches of space on either side of the skids for lateral movement because the trailer was only 8.5 feet wide on the inside. The skids would have had, Ms. Ryan said, virtually no room to move.

¶ 55      The employer also called an expert witness on truck rollovers, Mr. Todd R. Mendenhall, to present his opinion whether a load shift could have caused the rollover in the present case. Mr. Mendenhall was accepted by me as an expert in these matters. He was Vice President of Mechanical Engineering for Alpine Engineering and Design, an independent engineering company, and held a Masters Degree in Mechanical Engineering from Brigham Young University. He had experience on the design of truck trailers and in calculating their rollover rates. Moreover, his prior experience included working with the precise type of trailer involved in this accident.

¶ 56      On May 8, 2002, Mr. Mendenhall issued a report to the employer concluding that the cause of the rollover was not a load shift but excessive speed. The report said that the presence of the load decks and their elevation of a portion of the load was inconsequential when compared to speed of travel. The same was true for a worst-case offset in the load. Moreover, he concluded that the trailer would have started to roll over before it reached a speed that would have caused the skids inside to shift. In other words, a load shift would have been the result of a rollover and not the cause of it.

¶ 57      In his evidence at the hearing, Mr. Mendenhall stated that in reaching the above conclusions he took into account the conditions under which the complainant attempted to make the U-turn and the characteristics of the load in the trailer, including the presence of loose stampings inside the gaylord boxes. He said that he utilized equations developed by the Society of Automotive Engineers (SAE) that described rollovers. The equations factored in speed, sharpness of turn, materials in the cargo, type of floor in the trailer (slide factor), etc. From the width of the road, he said, he calculated the turning radius of the truck as 29 feet.

¶ 58      According to Mr. Mendenhall, even if the entire load in the trailer had shifted against its right side before the complainant attempted the U-turn, the trailer would not have overturned at 5-7 miles per hour. His calculations showed that if the load was perfectly centred, the trailer would have had to have been travelling at 14.01 miles per hour to roll over. If the load had been offset to the right side by six inches, the trailer would still have needed to travel at 12.96 miles per hour for rollover to occur. The load herein never could have been offset even to this degree. While Ms. Ryan estimated that in the present case, the load theoretically could have been offset by a maximum of 3 inches Mr. Mendenhall estimated that, taking into account the presence of the load decks, there would just have been 1.75 inches on either side within which the load could have been offset. This meant that no matter how the load was positioned, the trailer still would have had to be going faster than about 13 miles per hour for rollover to occur.

¶ 59      As to the effect of the height of the centre of gravity of the load in the trailer, Mr. Mendenhall said that his calculations showed that the centre of gravity would have had to have been located 20 feet above the roof of the trailer to cause it to roll over at 5-7 miles per hour. This was the speed at which the complainant said he made the turn.

¶ 60      The complainant took the unusual step of personally cross examining Mr. Mendenhall on his evidence. He asked Mr. Mendenhall whether his calculations took into account a number of factors that, in his opinion, could have contributed to instability in the trailer. In particular, he asked whether the front wheels of the trailer could have led to instability because they might have been turned at 90 degrees to the trailer at the time of the rollover. Mr. Mendenhall said that this was factored into his calculations. He said that he took into account the degree of articulation of the front wheels of the kite trailer and the "lashing" effect that would occur due to the kite trailer being last in line to make the turn. He added that even if the kite trailer were at 90 degrees to the lead trailer at the time, the trailer still would not have rolled over at 5-7 miles per hour. Speed, he said, was the most important factor. It contributed exponentially to the potential for rollover.

¶ 61      In fact, Mr. Mendenhall said, his calculations showed that it would have taken a higher speed to shift the load in the U-turn than to roll over the trailer. The trailer would have started to roll over before the loaded skids would slide. The only way to get a load shift in a U-turn at 5-7 miles per hour, Mr. Mendenhall said, would be to have the loaded skids on a greasy surface or a catastrophic failure of the suspension or an axle.

¶ 62      Mr. Michael Drima, the Director of Maintenance for the employer, testified that the kite trailer that was involved in this accident was in perfect condition. Like all of the employer's trailers, it was manufactured by a wholly owned subsidiary of the employer. Two days prior to the accident, he said, the trailer was fully checked for safety. The suspension, tires, axles, checked out OK. In his experience, he added, it was excessive speed that caused rollovers, not load shifts. Moreover, he said, rollovers were extremely rare. The employer had about 5,000 trailers on the road during the day and 4,000 at night, yet it experienced only two rollovers per year.

¶ 63      The accident was investigated on behalf of the employer by Mr. Lawrence D. Fennell, the Regional Safety Supervisor for Michigan, Northern Ohio and Indiana. He was trained in accident investigation and investigation photography. Prior to becoming a safety supervisor, he was a truck driver for fourteen years. Mr. Fennell testified that, in his opinion, the claimant was travelling at much more than 5-7 miles per hour as he made the U-turn. He concluded from his investigation that the claimant must have started off in second gear and shifted to third in the course of the turn because he was rushed. This would have corresponded to reaching a speed of somewhere between 10 and 17 miles per hour just prior to the rollover. [See note 2 below] A proper speed for the turn, he said, would have been 5-7 miles per hour.

¶ 64      Referring to a number of photographs that he took of the accident after he arrived at the scene, Mr. Fennell said that this evidence confirmed his view that the complainant tried to take the turn at excessive speed. From the photographs, he said, the overturned trailer appeared to have been dragged in a shallow arc for more than 25 feet before it came to rest at the side of the road. This was the length of drag marks in the grass on the boulevard beside the road that, in Mr. Fennell's opinion, were made by the upper right side of the overturned trailer before it was dragged back over the curb. The photographs showed that there were scrape marks on the concrete pavement adjacent to the drag marks, presumably made by the lower part of the trailer as it was dragged along. It also appeared from the photographs that as the trailer rolled over, its upper portion might have damaged a sign post and destroyed a campaign poster attached to a nearby guy wire. The post was bent and had fresh scratches on it.

   Note 2:  Mr. Chris Haworth, the then Regional Safety Supervisor for the Canadian Region, testified that he had the tractor unit that the claimant was driving that night tested for maximum speed in first to third gears. The test showed that first gear topped out at 6 miles per hour; second, at 10 miles per hour; and, third, at 17 miles per hour.

¶ 65      The photographs also showed that the right rear corner of the trailer was ripped open at the top. In Mr. Fennell's opinion, it ripped open when the top of the trailer hit the curb. Mr. Fennell also indicated that when he inspected the trailer after it was righted, he noticed scratch marks across the numbers on the upper right side of the trailer near the rear comer that had been ripped open. He also noticed grass marks and dirt in about the same location. He said that the scratch marks, as well as the grass and dirt marks, were visible in the photographs. These, he claimed, confirmed his view that the drag marks in the grass were made by the trailer once it had overturned.

¶ 66      The complainant vigorously disputed many elements of Mr. Fennell's opinion. He said he had no idea of how the trailer could have been on the grass or hit the sign. The police officer at the scene agreed with him, he said, that the drag marks in the grass must have been old, made days or weeks before the accident. The same, he said, was true for the scrape marks on the concrete pavement.

¶ 67      The complainant also contended that the photographs taken by Mr. Fennell did not show scratch, grass and dirt marks on the trailer as Mr. Fennell claimed they did. He added that the police officer and the assistant terminal manager for the Pontiac terminal agreed that he had nothing to do with the damage to the sign post that Mr. Fennell regarded as having been hit by the trailer. Neither the police officer nor the assistant terminal manager was called to testify at the hearing.

¶ 68      Mr. Gerald Krisa, the then Director of Safety for the employer, visited the site of the accident with Mr. Fennell several days after the accident. They took some additional measurements and photographs in the daylight to obtain a better understanding of the accident scene. Mr. Krisa testified that before making his ruling, he reviewed the reports of the complainant, Mr. Fennell's report, and the police report from the Warren Police Department. He said that he rejected the complainant's position that he was making the U-turn in first gear. He agreed with Mr. Fennell that the kite trailer had hit the curb, turned over, and been dragged for some distance before the complainant stopped. If the complainant had the tractor unit in first gear, he said, the trailer would not have been dragged that far. The top speed in first gear, he said, was about 6 miles per hour. At that speed, the engine would have been revving at a very high rate.

¶ 69      Mr. Krisa also said he rejected the claim of the complainant that a load shift and not excessive speed caused the rollover. During his visit to the scene, he said, he noted that there was no curvature on the surface of the road that might have contributed to a rollover. It was a wide, flat cement road. Also, he said, it would have been impossible for the load on the kite trailer to move far enough off-centre during the complainant's manoeuvres prior to the accident to cause a rollover. Even if the load shifted in the course of the turn, he added, it could not have shifted far enough to overturn the trailer. There was insufficient room on either side of the load to permit that to happen. In the light of these conclusions, he ruled the accident preventable.

¶ 70      As already indicated in this decision, the above ruling was appealed by the complainant to the Safety Review Board along with the adverse rulings in the previous two accidents. The appeals were dismissed, as was the complainant's subsequent appeal to the Employee Termination Review Board. Thereafter, the complainant filed the complaint of unjust dismissal that gave rise to the present proceeding.

III. The Submissions of the Parties:

¶ 71      In his submissions at the conclusion of the evidence, counsel for the employer, Mr. Corbett, asserted that the preponderance of the evidence demonstrated that the complainant was involved in three preventable accidents within a relatively short period of time, and that this constituted just cause for termination. He also submitted that if credibility became an issue the evidence given by the witnesses for the employer should be regarded as the most credible.

¶ 72      Counsel for the complainant, Mr. Lecker, raised several issues in his submissions. On the issue of just cause for termination, he claimed that the burden upon the employer was to show wilful misconduct on the part of the complainant, in the sense of intentional blindness to the risk to himself and the employer when the accidents happened, and that this burden had not been met. He also submitted that the first accident should not have been considered by the employer in deciding upon the level of discipline to impose upon the complainant after his second and third accidents because it had been condoned by the employer. According to Mr. Trott's evidence, he noted, if only the second and third accidents had been considered, the complainant would not have been terminated. Finally, Mr. Lecker submitted that, in any event, the evidence did not show that the two most serious accidents were preventable in the sense of either being due to wilful misconduct or negligence on the part of the complainant.

IV. Consideration of the Submissions of the Parties:

¶ 73      As indicated above, the main issues raised in the submissions of the parties were as follows:

I will address the above issues seriatim hereinbelow:

¶ 74      Counsel for the complainant, Mr. Lecker, submitted that the Canada Labour Code adopted a higher standard of just cause than would be applied in arbitration cases involving unionized workplaces. This standard, he said, required a showing that the actions of the employee involved wilful misconduct.

¶ 75      In making this submission, Mr. Lecker referred extensively to several excerpts from M. N. Grossman, Federal Employment Law in Canada (Carswell, 1990). I have carefully reviewed these excerpts but I have been unable to find within them any foundation for requiring a higher standard of just cause than that applied in arbitrations, let alone a standard requiring a showing of wilful misconduct. In fact, the Grossman text appears to have adopted the view that when Parliament employed the notion of just cause in framing the unjust dismissal provisions of s. 242(3) the Canada Labour Code it had in mind the rights of unionized employees under collective agreements. See id, at 157-59.

¶ 76      The Grossman text also recognizes that poor performance can constitute just cause for dismissal under the Canada Labour Code. See Grossman, at 159. This, as I understand it, is the basis for dismissal that the employer herein has applied. As Mr. Corbett indicated in his submission, the employer regarded the complainant as having engaged in a pattern of preventable accidents within a relatively short period of time and this was the basis upon which he was terminated.

¶ 77      I agree that in reviewing the employer's determinations in the accidents in question, I am not obliged to apply the same standard of just cause as the employer. The standard that the employer applied was bound up with the notion of preventability of an accident, in the sense that if there wasn't zero negligence on the part of the driver the accident was deemed preventable. There might well be accidents in which the level of negligence of a driver was not zero but was so minimal as to lead one to question whether it, indeed, constituted just cause for any sort of discipline. This seems to be a consideration that, as a matter of fairness, adjudicators should take into account when reviewing terminations of truck drivers under the Code. At the same time, they should bear in mind the strict obligation of an employer in the industry to ensure the safety of the public through the safe and proper operation of its large, heavily loaded vehicles on the highways.

¶ 78      This issue seemed to have originated through a misperception about the first accident that the complainant might initially have conveyed to his counsel. It appears that, as far as the complainant could recall toward the commencement of the hearing, the employer's investigation of the first accident was not followed by any disciplinary action against him. The matter simply went away. This led counsel to assert in his opening statement that the incident was condoned by the employer and, as a result, could not be used against the complainant in the disciplinary proceedings following his second and third accidents.

¶ 79      From my perspective, the misperception seemed to be cleared up when the employer produced a Letter of Instruction from Mr. Krisa in the first accident that was sent to the complainant on February 2, 1999, as well as the complainant's handwritten letter requesting an appeal of Mr. Krisa's ruling. Mr. Krisa testified that the Letter of Instruction was the highest level of discipline that could be issued short of a termination. The letter even warned the complainant that further incidents of the same nature may result in more severe discipline.

¶ 80      In the light of this evidence, it seemed incontrovertible to me that the employer disciplined the complainant for the first accident and the complainant even appealed the matter. Moreover, he was on notice that further incidents of the same nature could result in further discipline. Nevertheless, counsel raised the issue of condonation in argument and, as a result, I felt compelled to address it. I find that on the basis of the above evidence the employer did not condone the first accident. It disciplined the complainant for the accident and the complainant even appealed the matter. The first accident was available to be considered by the employer in determining the level of discipline to be applied following the complainant's second and third accidents.

¶ 81      It seems to me that it makes sense to approach this issue in two phases: (i) to decide whether negligence on the part of the complainant was involved in each of the three accidents; and, (ii) to decide whether the negligence, if found, constituted just cause for dismissal.

The First Accident: December 22, 1998:

¶ 82      I find that the first accident was due to negligence on the part of the complainant. The preponderance of the evidence showed that the complainant's truck went off Highway 402 and crashed because the complainant either dozed off at the wheel or engaged in some other form of driver inattention over a lengthy period of several seconds. Considered as a whole, the evidence simply does not support the contention of the complainant that a malfunction in the steering caused the truck to lurch from the road and crash.

¶ 83      My review of the photographs of the accident scene showed that the tire tracks of the complainant's truck on the shoulder of the road made a gradual exit from the pavement, not a sharp angle of departure as claimed by the complainant. A gradual exit is consistent with dozing off at the wheel. I cannot agree with the complainant's assertion that other tire tracks in the photographs that showed a sharper angle of departure were those of his truck. They were single tire tracks such as those made by a passenger car; not the multiple tire tracks of an articulated heavy truck.

¶ 84      There was no doubt that at the accident scene the complainant could not explain to investigators why he never applied his brakes nor tried to steer out of his disastrous course once, he said, he realized he was off the road. This also is consistent with his dozing off at the wheel.

¶ 85      At the hearing, the complainant explained that he didn't take evasive action because he thought the best way to handle the situation was to try to drive out of it. He said that he did not express this to investigators at the scene because he was shaken up, cold and in shock. His explanation, however, seemed more like afterthought. No one else testified that the complainant was in shock at the scene. He was observed to be calm and cooperative. Moreover, earlier in his testimony about the accident, the complainant gave evidence that seemed inconsistent with his explanation. He said that when he saw the gravel shoulder of the road he tried to take evasive action by turning the steering wheel but could not because it felt frozen.

¶ 86      There was no objective evidence that the power steering of the tractor unit was defective as claimed by the complainant, and that the defect caused the accident. After the accident, the employer had the steering checked out by its maintenance department and thereafter sent the unit to Peterbilt of Ontario for a thorough independent evaluation of the steering system. No problems were found. Mr. Blair Payne, the technician from Peterbilt who performed the independent evaluation testified that the steering in the unit should have been at its full working capability at the time of the accident.

¶ 87      There also was no viva voce evidence to corroborate the complainant's claim that a defect in the power steering caused the accident. No one but the complainant testified that the power steering in the unit was defective. The complainant stated in his evidence that a few days prior to the accident, he'd noticed surges in the power steering and asked the day driver of the unit, Mr. Robert B. Willis, whether he'd noticed the same thing. Mr. Willis said he had not, but another driver commented that he'd noticed that in other units. When Mr. Willis was called to testify on behalf of the complainant, however, he was not asked any questions about the concerns that the complainant allegedly expressed about the steering in this conversation.

¶ 88      Constable Finch, who also was called as a witness for the complainant, was of little assistance on the issue. He did not support the complainant's assertion that the tire tracks at the scene showed a sharp veer to the right. He said that he had no evidence on which to pursue a charge because the complainant advised him that the accident was due to a mechanical malfunction. He also said that if he had evidence that the complainant fell asleep at the wheel, he would have charged him with dangerous driving. Moreover, there seemed to be some indication in the evidence that at the scene, Constable Finch at least suspected that the complainant fell asleep at the wheel.

¶ 89      When, as I have concluded, the complainant either dozed off at the wheel or engaged in some other lengthy act of inattention, he was seriously negligent. An important part of his duty of care as the driver of a heavy transport truck was to remain alert while on the road. If he did not, critical injury to the members of the travelling public could have resulted. He breached this duty of care and, it seems, was only lucky to avoid injuring others in the course of the accident.

The Second Accident: October 25, 1999:

¶ 90      There seems to be little doubt that the second accident also was due to negligence on the part of the complainant. This was the accident at the Markham terminal in which the complainant struck a concrete-filled post near some fuel pumps, damaging the aluminum fuel tank on the right side of the tractor unit.

¶ 91      The complainant agreed in his evidence that the manoeuvre that led to this damage was ill-advised and professionally embarrassing. He said that he had to take responsibility for it. At the same time, he seemed to be laying blame at the feet of the terminal manager, who instructed him to use a virtually inaccessible terminal door. The post was hit as the complainant tried to back his unit into this door.

¶ 92      I agree with Mr. Haworth, who investigated the accident, and Mr. Krisa, the Safety Director for the employer, that the complainant was primarily to blame. He was the one who was responsible for his vehicle. If he felt that the terminal manager was instructing him to put his vehicle in an unsafe position, it was his duty to demand a different terminal door. The fact that the complainant was in a hurry did not absolve him of this responsibility.

The Third Accident: October 30, 1999:

¶ 93      The third accident occurred just five days after the second accident. It involved major damage to the employer's equipment. When the complainant attempted a U-turn on Dequindre Road in Michigan, the kite trailer rolled over and landed on its right side. On all of the evidence, I find that this accident also was caused by the negligence of the complainant.

¶ 94      I cannot accept the assertion of the complainant that he was only travelling at 5-7 miles per hour when he made the U-turn. All of the evidence on the accident indicated that at that speed the kite trailer would not have rolled over. The testimony of the expert witness called by the employer, Mr. Mendenhall, was particularly convincing on the issue. He said that speed was the most important factor. It contributed exponentially to the potential for rollover. Even if the entire load in the trailer had shifted entirely to the right before or during the U-turn, he said, the kite trailer would have had to be travelling faster than 13 miles per hour for rollover to occur.

¶ 95      I also found convincing Mr. Mendenhall's evidence that placing part of the load on load decks, as was the case herein, could not have caused the accident. His calculations showed that the centre of gravity of the load would have had to have been located 20 feet above the roof of the trailer for it to roll over at 5-7 miles per hour.

¶ 96      Mr. Mendenhall's evidence was not shaken on cross examination by the complainant. He showed convincingly that his calculations took into account every factor that the complainant suspected might not have been considered. Moreover, I was impressed with Mr. Mendenhall's demeanour during the cross examination. He was entirely professional and dispassionate, never once descending into the role of advocate for the employer. In sum, he was an impressive expert witness.

¶ 97      The drag marks on the grass and pavement that were shown in the photographs supplied by Mr. Fennell also demonstrated that the kite trailer was travelling at more than 5-7 miles per hour at the time it rolled over. I find that they were made by the upper portion of the right side of the trailer after it rolled over. The drag marks extended for a distance of 25 feet. As Mr. Krisa testified, the trailer could not have been dragged that far if the complainant were driving in first gear at 5-7 miles per hour.

¶ 98      I do not accept the testimony of the complainant that the drag marks were old and not caused by the trailer. No corroborating witness was called on this point, even though the complainant indicated in his testimony that the police officer on the scene agreed with him that the drag marks must have been made days or weeks before the accident. Moreover, I find that the presence of damage to the right rear corner at the top of the trailer, as well as the presence of grass and dirt in scrape marks on the trailer nearby this corner, verify that the scrape marks on the pavement and ground were fresh and were made by the trailer. According to the evidence, the trailer was inspected a few days prior to the accident and was in perfect condition.

¶ 99      Finally, I have taken into account the evidence that rollovers were exceedingly rare in the experience of the employer and, apparently, the industry in general. Mr. Drima, the Director of Maintenance for the employer, testified that it only experienced two rollovers per year, despite the fact that each day, the employer had about 5,000 trailers on the road in the day, and 4,000 at night. Mr. Willis, the day driver who was called as a witness by the complainant, confirmed this in his evidence. Despite criticizing the employer for its loading procedures, Mr. Willis agreed that rollovers were very rare. In his five years of employment at the Toronto terminal, he said, he'd only heard of one other driver rolling a trailer.

¶ 100      In the light of the above, I conclude that the complainant negligently shifted into third gear in the latter part of his turn and accelerated to a speed of somewhere between 10-17 miles per hour, causing the kite trailer to roll over. He was anxious and embarrassed about getting lost, and in a rush to get to the Pontiac terminal before he ran out of time. The rollover was not caused by a load shift or any other problem for which the employer was responsible. It was the complainant who was entirely responsible for the accident.

¶ 101      I have found that the complainant negligently caused three accidents involving the employer's vehicles within about a ten month period. In two, the first and third accidents, his negligence was of a high order and resulted in substantial loss or damage to the employer's equipment. In one, the second accident, there was a lesser degree of negligence and minor property damage. Nevertheless, the negligence was far more than minimal. On the applicable authorities, a series of accidents due to negligence of this order within a short space of time represents an unacceptably low level of performance and constitutes just cause for termination.

¶ 102      Counsel for the employer referred me to a number of cases which concluded that a series of preventable accidents constituted just cause for termination. These cases included Bosiak v. Monarch Messenger Services Ltd., [2001] C.L.A.D. No. 243 (Poetker); Holczer v. Robyn's Transportation and Distribution Services Ltd., [2001] C.L.A.D. No. 313 (D'Andrea); Foremost Personnel v. Hough, [1998] C.L.A.D. No. 334 (Primeau); and, B.L.M. Distribution Systems v. Black, [1995] C.L.A.D. No. 842 (Rose).

¶ 103      In Bosiak, supra, the complainant was terminated after he was involved in two preventable accidents within four months and was the subject of at least two complaints from individuals regarding his operation of the employer's vehicles. In concluding that the decision of the employer to terminate was not an excessive response in the circumstances, Adjudicator Poetker said:

The learned adjudicator stressed in his decision the obligation of the employer to ensure the safe operation of its vehicles. When the evidence indicated that the complainant had become an unsafe driver, there was just cause to terminate him.

¶ 104      In Holczer, supra, the complainant was involved in two preventable accidents within three weeks of each other. One of them could have resulted in catastrophic consequences. He also was found at one point to be driving with the driver's air bag deflated. Adjudicator D'Andrea concluded that because there were a number of safety-related incidents in a short period of time, dismissal was justified.

¶ 105      In Foremost Personnel, supra, the complainant had been involved in a number of incidents over about a year and a half. Among other things, he was found to be driving with defective brakes, leading to a fine against the employer. He was warned for speeding and received a citation for not wearing a seat belt. He backed his rig into a passenger car that was backing out of a driveway. He collided with a fixed object in a parking lot. Referee Primeau concluded that for safety-related reasons the employer had just cause to remove the complainant from its vehicles.

¶ 106      In B.L.M. Distribution Systems, supra, the complainant was involved in four preventable accidents within four months. He backed his rig into another truck, causing minor damage. He drove too fast for road conditions, jackknifing his trailer and causing serious damage. He hit two parked cars in a parking lot, causing minor damage. He hit a construction barrel while driving through a construction zone, lodging it beneath his vehicle. In light of these accidents, Adjudicator Rose concluded that there was just cause for termination.

¶ 107      On the basis of the foregoing authorities, I am led to conclude that there was just cause to terminate the complainant. His negligence while driving the employer's vehicles led to three accidents within about ten months. Two of them were serious and potentially catastrophic. In each accident, the complainant's negligence was far more than minimal. Moreover, the last two accidents occurred within five days of each other. As pointed out in Bosiak, supra, the employer has an obligation to ensure that its vehicles are being operated in a safe manner. The series of accidents in which the complainant was involved provided more than enough justification for the employer to conclude that the complainant was not meeting this critical standard of performance. The termination was for just cause.

V. Conclusion:

¶ 108     The complaint is dismissed.

QL UPDATE:  20030414
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