Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8264/MVIA
CASE NAME: 8264 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
Virginia Auto Incorporated
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: David Gibbons, Agent
For the Respondent: Russell McKnight, Agent
Heard in Toronto: August 21, 2013
REASONS FOR DECISION
A hearing was held on August 21, 2013, at Toronto, Ontario, in person to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.
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: Virginia Auto Incorporated
Motor Vehicle: 1990 Ford COF (the “vehicle”)
Date of Appeal: August 2, 2013
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), 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 the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant corporation is a garage and the impounded vehicle is a flatbed tow truck, which is the garage’s only towing vehicle and is normally used six days a week. The business has three full time employees. Part time employees are hired for short intervals when work is available. The Agent for the Applicant, Mr. Gibbons, who is the business owner, testified that it was an exception that a part time employee was driving the vehicle when it was impounded. He does check the status of the licences of his full time employees, who are expected to do test drives, for example.
Mr. Gibbons testified that the business has three streams of income. The first is from drive-in business, which is not directly impacted by the loss of the tow truck. The second stream is generated from calls requiring the use of the tow truck and he explained that these comprise requests to assist drivers at the side of the road, requests from regular customers and requests for moving objects other than vehicles. He further explained that in the case of regular customers he often chooses not to charge to tow their vehicles to the garage in order to build and maintain customer loyalty. He advertises in order to generate business from moving objects other than vehicles, an aspect of the business which he explained is time sensitive: for example, he may be asked to move objects off properties before sale closing dates. When the first two streams of income are lower, Mr. Gibbons uses the tow truck to generate business. For example, he will drive around, even knocking on doors, to pick up non-operating vehicles which he may tow for scrap or may take to the garage to refurbish and sell. He explained that he keeps vehicles in this condition both at the garage and, because space at the garage is limited, at his personal property, using the tow truck to move them to the garage to work on. However, he indicated that he had recently cleared the garage area and needs the tow truck to move vehicles back to the garage.
The garage is located on Highway 48 and is on-call seven days a week. Mr. Gibbons estimated that business has dropped off by approximately 50% since the impoundment and testified that this week he had to lay off one of his full time employees for three days because of the unavailability of work. He anticipates further layoffs during the remainder of the impoundment period. The garage normally generates $4,000 to $6,000 a week which has been reduced to $2,000 to $3,000 a week. He indicated that he has a number of fixed expenses, including mortgage payments, insurance and taxes, and provided the example of $280 a week in property tax.
Mr. Gibbons has investigated the possibility of renting a trailer to haul vehicles during the impoundment period, phoning both U-Haul and a local business which sells trailers. He noted that he requires a trailer with a winch and that while a winch could be purchased at a reasonable cost, companies such as U-Haul do not permit these to be installed on their rental vehicles. In the case of the local business which sells trailers, he testified that because all of the available trailers are new, that he could not rent one. He further testified that contracting out the towing work would be costly, given that he normally absorbs towing fees and indicated that while some of the vehicles towed in require major work, which would make contracting out worthwhile, others have minor problems. Further, he noted that some vehicles towed in may be unrepairable and have no value to him and he could in fact incur a loss by paying towing fees, which he indicated could range from $80 to $230 if outsourced. He further noted that income lost from the moving business would not be recouped later as individuals wanting this service would call a competitor if he was unavailable.
Mr. Gibbons owns a second vehicle, a pick-up truck, but testified that it was not in condition to be used to transport heavy goods, having had its frame welded a number of times. He testified that he uses this vehicle for personal transportation.
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 under the Criminal Code of Canada of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams pursuant to which the driver’s licence of the driver was then under suspension until February 16, 2017.
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.
O. Reg. 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 section 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. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section 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
With respect to the issue of exceptional hardship, section 10 of O. Reg.631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle.
There is no doubt that the use of a tow truck is integral to the day to day operations of a garage. Section 10(4) of O. Reg. 631/98 requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period. In this case, Mr. Gibbons has investigated the possibility of renting a trailer to replace the impounded tow truck but was unable to find a replacement. The other option available as an alternative is to contract out towing services. Mr. Gibbons did not state that this option was not available: rather, he indicated that this would be a significant added expense, although he provided a broad range of costs. The Tribunal acknowledges the Applicant would have to absorb extra costs if Mr. Gibbons continued his normal practice of not charging regular customers for towing costs. However, contracting out does provide a means to ensure those customers are not lost during the impoundment period.
Mr. Gibbons testified that his business comes from three streams. The Tribunal acknowledges that contracting out may not be a cost effective or practical alternative for the business of moving objects and that the Applicant might lose some business during the impoundment period. Similarly, the Applicant might have to defer the generation of income from the third stream of business, although the Tribunal notes that Mr. Gibbons does have a personal vehicle which could be used to generate opportunities and that any vehicles purchased could be picked up after the tow truck is released from impoundment. However, Mr. Gibbons did not provide the Tribunal with any indication of what proportion of the Applicant’s business comes from each stream of business.
Nor did he provide any documentation to support the loss which he testified the business has incurred. The Tribunal therefore cannot determine that the loss to which Mr. Gibbons testified is significant or lasting and could not be mitigated by the available alternative of contracting out towing for some portion of the Applicant’s business services.
The evidence indicates that the Applicant does have an alternative to the use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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 impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: August 23, 2013