Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 8895/MVIA
CASE NAME: 8895 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.
Appellant Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: The principal of the Appellant, Agent
For the Respondent: Sanjay Kapur, Agent
Heard in Toronto: July 2, 2014
REASONS FOR DECISION
A hearing was held on July 2, 2014, at Toronto, in person, to consider the Appellant’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 pursuant to section 55.1(3) of the HTA. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 45 days.
PRELIMINARY ISSUES
The Tribunal was advised that the Appellant had not received the Registrar’s disclosure documents. After a brief recess to allow the Appellant’s Agent to review the documents, the Appellant’s Agent agreed that the documents could be entered into evidence.
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 Appellant
Motor Vehicle: 2008 Ford EPR (the “vehicle”)
Date of Appeal: June 12, 2014
The Appellant is a corporation. The Appellant’s Agent is a principal of the corporation and the suspended driver is his brother. Therefore, to protect personal information, the names of the Appellant and its Agent are not being used in this decision.
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 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 Appellant
The Appellant’s Agent described the Appellant as a small family trucking business. He stated that his brother, the suspended driver in this case, is “not the most responsible” person whose past issues have been a disappointment to his family. However, having recently shown positive change, which the Appellant’s Agent described as “a pleasant surprise” to the family, the brother was employed by the Appellant. The Appellant’s Agent stated that he now regrets that he did not check the validity of his brother’s driver’s licence.
The Appellant runs a delivery business operating two trucks. The deliveries are often made early in the morning. Because the company has a good relationship with its clients, the clients allow it to park its vehicles at their premises. This means that company drivers must have transportation to reach the clients’ premises at the start of the work day, which can be as early as 5 a.m. The early morning start means public transportation is not an option. In exchange for lower wages, the Appellant’s Agent provided his brother with the use of a company vehicle to enable him to reach the trucks parked at the client sites.
The vehicle impoundment has not had an effect on the volume of the Appellant’s business. It is operating the same number of vehicles that it did before the impoundment. While the impounded vehicle was also used by the Appellant on weekends to transport tools and materials to client sites to perform regular maintenance of the trucks, the Appellant has been able to continue this work. The Agent testified that the vehicle is almost paid for and his intent is to give it to his operations manager for his personal use although it would continue to be used as required for weekend maintenance.
The Appellant’s Agent testified that the 2008 recession had a significant impact on the Appellant’s business. Clients faced market changes and in some cases downsized. While the Appellant did not lose clients, the clients’ volume of business decreased. The Appellant therefore sold some of its vehicles and took some out of commission. The Appellant’s Agent has calculated that the cost of releasing the impounded vehicle from the impoundment facility would in effect use almost all of the funds in the company’s current operating account. This would put a severe strain on what he described as an already financially precarious situation with the company operating from “paycheque to paycheque”. He testified that it would take months for the company to recover the expense. He also indicated that the Appellant has replaced his brother but is paying the new employee higher market rates.
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 driving with a blood alcohol concentration exceeding 80 mg pursuant to which the driver’s licence of the driver was then suspended to March 20, 2017.
Copies of Ministry of Transportation records indicating other vehicles registered to the Appellant.
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. 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.
The section also provides that the Tribunal may not, except in certain circumstances, consider:
- 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 only if the owner demonstrates all of the following:
- 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.
The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
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 Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle.
The Appellant’s Agent testified that the impoundment has not changed the number of vehicles which the Appellant is operating and it has lost no business as a result. The impounded vehicle was provided to the suspended driver to enable him to reach the client premises where the Appellant’s trucks are parked. While the vehicle was also used on weekends to transport tools and materials to the client premises to perform regular maintenance on the trucks, the Appellant’s Agent testified that other means have been found to continue this work during the impoundment period. The primary concern of the Appellant’s Agent was the cost the Appellant would incur to release the vehicle from the impound facility. While the Tribunal appreciates that this may be a significant cost to a business which the Agent testified has experienced a reduction in its revenue and is under some financial strain, the Tribunal cannot consider this cost in determining whether the impoundment will result in exceptional hardship. The Act provides the means for the Appellant to take action to recoup the costs of the impoundment from the suspended driver.
The evidence indicates that the Appellant does have alternatives available to 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 Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
_______________________
Mary Ann Spencer, Presiding Member
RELEASED: July 7, 2014