Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8154/MVIA
CASE NAME: 8154 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
Jacobs Towing Inc. Applicant
-and-
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Applicant: Robert Heughan, Paralegal
For the Respondent: Jay Shanmorgan, Agent
Heard in Toronto: July 9, 2013
REASONS FOR DECISION
A hearing was held on July 9, 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").
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT imposed by the Registrar of Motor Vehicles (the "Registrar") pursuant to section 55.1(3) of the HTA.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner on the grounds of exceptional hardship. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2002 Chev SIL (the vehicle")
Date of Appeal: June 14, 2013
ISSUES
As set out in the Notice of Appeal, the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on that basis?
EVIDENCE FOR THE APPLICANT
Benni Panivilov
Mr. Panivilov is the sole owner of Jacobs Towing Inc. ("Jacobs") and an affiliated collision and repair centre. The business is only a few years old and he described it as being in the process of establishing itself within a competitive marketplace.
The witness said he had purchased the impounded vehicle 6-7 months earlier and it is one of 3 tow trucks his company operates. Mr. Panivilov said there are only three authorized drivers of the tow trucks and he is one of the three. Jacobs has other employees but no other authorized drivers for its business.
The impounded truck was described as a "full wrecker" with heavy vehicle towing capability. It is the only truck which can do heavy vehicle towing.
The collision and repair centre and Jacobs share a property location. Customer vehicles are moved around within the property when they are taken in for repair or relocated to the property lot when the repair work is finished.
The tow trucks are usually taken home by the drivers, but on occasion, when not in use, they would be parked at the back of the lot with the keys in the ignition. This was the case with the impounded vehicle and why it was accessible to DE.
Mr. Panivilov said he received a call from one of his employees (DE) to advise him that he (DE) had been pulled over and the Jacobs tow truck which he had been driving, was impounded because of his suspended driver's licence. Mr. Panivilov said he was unaware the tow truck had been taken by anyone and further, DE was not an authorized company driver.
The manager of the collision repair centre had let DE take the tow truck to go and pick up a GM Montana van that belonged to a friend of DE's and tow it back to the collision and repair centre.
In his testimony, Mr. Panivilov said the tow truck generates about $9,000 in revenues though the testimony was not clear if that was daily, weekly or monthly. In the Notice of Appeal, the estimated revenue loss for the full impoundment period could be "about $122,500".
Mr. Panivilov said he is overloaded with work because of the loss of use of the tow truck and he is also at risk of losing new customers.
In cross-examination, Mr. Panivilov explained his revenue comes from insurance companies and other shops which contract him. He is reluctant to sub-contract the type of towing work the impounded truck can do for fear of losing the customer to the sub-contractor. He said that he also integrates the towing charge with repair work when a towed vehicle goes into his collision repair shop. The company does 9 to 15 tows a week and the impoundment was costing the company about $15,000.
When Mr. Panivilov was informed about the ability to seek compensation for his costs and losses from DE, Mr. Panivilov said he recently tried to reach DE but had not been able to find him.
EVIDENCE FOR THE REGISTRAR
The documents tendered by the Registrar and admitted into the record on consent 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;
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 his driver's license suspended on April 12, 2013, due to a conviction on a charge of dangerous driving under the Criminal Code of Canada pursuant to which the license of the driver was suspended until April 12, 2016.
The Registrar called no other evidence.
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.
The Applicant here appeals on the basis of sections 50.2(3)(d).
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
The Shorter Oxford English Dictionary, 3rd ed. defines "exceptional hardship" as follows:
Exceptional : Of the nature of or forming an exception; unusual.
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:
(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. The section also provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
The onus is on the Applicant to establish its ground of appeal as provided in section 50.2(3)(d) of the Act.
The Tribunal carefully considered all of the evidence and testimony of Mr Panivilov that the impoundment was causing financial hardship.
He described, in the written reasons for the appeal and through his testimony, the various expenses, costs, and missed business revenue opportunities, but he did not produce any documentation to support the assertion of financial loss. He has in fact stated that he is overloaded with work (as a result of not having the third truck) and he has decided against the alternative of subcontracting the use of a similar towing truck for other business reasons.
While the Tribunal appreciates the significant estimates provided in the testimony and the Notice of Appeal, the Tribunal finds that the evidence presented by the Applicant was not sufficient to show, on a balance of probabilities, how it was indeed suffering any immediate, significant and lasting impact due to the impoundment. In the absence of any factual evidence to support the 'exceptional hardship' claim, the appeal must fail.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the Order of the Registrar of Motor Vehicles to impound the Applicant's motor vehicle.
LICENCE APPEAL TRIBUNAL
Simon Dann, Presiding Member
Released: July 12, 2013