Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-06-20
FILE:
8104/MVIA
CASE NAME:
8104 v. Registrar of Motor Vehicles
Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.
Rino D’Astice Trucking Inc
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant:
Rino D’Astice, Agent
For the Respondent:
Jay Shanmorgan, Agent
Heard in Toronto:
June 13, 2013
REASONS FOR DECISION
A hearing was held on June 13, 2013, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
Pursuant to section 50.2 (5), by Order dated June 14 , 2013, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE. These are the reasons for that decision.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2007 Peterbuilt Model 379 (the “vehicle”)
Date of Appeal: May 28, 2013
As a preliminary matter, the Registrar’s Agent introduced documentation indicating the ownership of other vehicles by the Applicant. The Applicant’s Agent objected on the grounds that the documents pertain to a separate company not the company listed as the Applicant in these proceedings.
The Applicant’s Agent submitted copies of the bank deposit slips, which were entered as Exhibit # 5, and marked confidential.
All documents were entered into evidence as exhibits with the consent of both parties.
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #1. In the Notice of Appeal, the Applicant pleads for the return of the vehicle on the ground that without the impounded vehicle the Applicant will have to “shut down”. The impoundment of the vehicle is causing a loss of $1,300 per day.
Copies of bank deposit slips filed as Exhibit #5, substantiate the Applicant’s claim.
Mr. D’Astice, the principal of the Applicant, and Agent at the hearing, gave evidence. He reiterated the statement in the Notice of Appeal; emphasizing that by the end of the impoundment the business will lose about $50,000.00. According to the witness, the company searches driver abstracts annually, and in this particular case the search was clear, as it seems the suspended driver only lost his licence in January, after the last search was done, and failed to inform the company.
In cross-examination, he explained that the company does own other vehicles, but the impounded vehicle is the only vehicle that can be used to pull the trailers.
He stated that it is not possible to rent a dump truck with the hydraulics required to pull the trailers, and as far as using a subcontractor, Mr. D’Astice testified that if they did so, there would be no profit left for the company.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 29, 2014.
The Registrar did not call any witnesses.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
APPLICATION OF LAW TO FACTS
In closing, the Applicant‘s Agent stated that he is has been in business since 2012 and has a clean record. He stated that the trucking business is a “hard struggle”. Further, the Applicant’s Agent emphasized that this business is his livelihood, he is now in financial turmoil, and his reputation has been damaged because of a driver who failed to report that his licence was suspended.
In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, was not met.
The Registrar’s Agent pointed out that the criteria in section 50.2(3)(d) of the Act is very specific and the criteria is not met as the Applicant owns other vehicles. Further, the Applicant has not mitigated its loss by enquiring into the possibility of hiring a sub-contractor. With respect to impoundment fees, the Applicant, according to the Registrar’s Agent, may recover costs from the suspended driver.
The Registrar’s Agent maintains that there has been no significant and lasting loss of income, as the Applicant’s Agent owns another company from which he is still deriving income.
The onus is on the Applicant to establish exceptional hardship, as the ground of appeal, as provided in section 50.2(3)(d) of the Act.
Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:
- (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
On the surface, it would appear that there are alternative modes of transportation available to the Applicant, nonetheless, these vehicles are owned by a separate entity. Thus the Tribunal finds that in essence there is no adequate alternative vehicle available to the Applicant that will be able to pull the trailers.
Thus, having found that an alternative to the impounded vehicle does not exist, the Tribunal may proceed to consider loss of income.
As the Applicant’s Agent has another source of income, the Registrar’s Agent argued that there is no loss that is immediate, significant and long lasting. The Applicant is the corporation, not the Applicant’s Agent, thus the Applicant’s Agent’s source of income is irrelevant. It is the corporation’s income that is the consideration for this Tribunal.
The Applicant’s Agent testified as a witness. He appeared to be sincere and forthright in his testimony, and the Registrar’s Agent’s cross-examination did not lead to any doubts about the Applicant’s credibility. The Tribunal accepts the fact that the company is losing $1,300.00 per day over the period of the impoundment which is a significant and immediate financial loss. For a business such as the Applicant’s, a loss of that magnitude is likely to have a lasting effect. The Tribunal therefore finds that the loss will create exceptional hardship for the business.
The Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are met.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: June 20, 2013