1465755 Ontario Corp. o/a Countrysided Automotive v. Registrar of Motor Vehicles, 2014 CanLII 7968

Licence Appeal Tribunal

Appeal d'appel en matière de permis

DATE: 2014-02-07

FILE: 8556/MVIA

CASE NAME: 8556 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.

1465755 Ontario Corp.o/a Countrysided Automotive Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Nives Montano, Member

APPEARANCES:

For the Appellant: Robert Bricker, Agent

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: January 31, 2014

REASONS FOR DECISION

A hearing was held on January 31, 2014, at Toronto, by teleconference, 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 the duration of the 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: The Appellant Motor Vehicle: 1997 Ford EPR (the “vehicle”) Date of Appeal: January 10, 2014

It was determined that the Respondent’s disclosure package (Exhibit 3) was not received by the Mr Bricker. The courier did attempt to deliver the package approximately one week before the hearing. The courier left an attempted-delivery notification which the Mr Bricker did not receive. Though Mr Bricker did not have the opportunity to review the disclosure package, he agreed to proceed with the hearing. During the course of the hearing, Ms De Santis reviewed the documents contained in the package. She will resend the disclosure documents to Mr Bricker once this hearing is concluded.

All documents were entered into evidence as exhibits with the consent of both parties. The hearing proceeded.

ISSUES

The Tribunal requested confirmation from the Mr Bricker that his ground for appeal was 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. Ms De Santis confirmed this ground of appeal.

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

A summary of the Mr Bricker’s evidence follows. He was affirmed before giving testimony.

The Appellant is a car dealership and is in the business of selling new and restored classic vehicles to the public and at auction. It has been in business since 1980. Mr. Bricker is the owner and operator of the Appellant. He has been a licenced dealer for 30 years. He and his wife run the business with the occasional assistance of one of their adult sons. He is also the suspended driver at the time the vehicle was impounded.

The Appellant is situated on approximately one acre of land, a few blocks away from the Mr Bricker’s home. All necessary supplies and equipment for the maintenance of the dealership’s vehicles are kept at the Agent’s home.

The impounded vehicle is an unplated utility vehicle with a plow welded to it. It is used as the business’s only snowplow. This vehicle is “usually not off the lot”. Its purpose is to remove snow on the dealership lot and/or to pull out vehicles from under the snow with chains after a heavy snowfall which this province has endured a number of times this winter. Mr. Bricker is the primary driver of the impounded vehicle.

On the day the vehicle was impounded, he was driving the impounded vehicle on the dealership lot. The vehicle had a dealer plate attached to it. He admitted that he “wasn’t thinking”, drove the plow off the lot with the intention of driving it to his home a few blocks away to put some antifreeze in it. He was observed by Waterloo Regional Police driving off the dealership lot onto the road where he was stopped at an intersection. The police confirmed that he was a disqualified driver and the vehicle was impounded.

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 Appellant were as follows:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant as owner ;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 13, 2015.

Evidence of Police Constance Jason Gamble

A summary of Constable Gamble’s evidence follows. He was affirmed before giving testimony. Officer Gamble relied on his personal notes to recall the series of events.

Officer Gamble has been with the Waterloo Regional Police since 2006. He is familiar with the Mr. Bricker due to a past incident.

On the day the vehicle was impounded, Officer Gamble drove by the dealership at approximately 11:55 a.m. and observed Mr. Bricker driving a vehicle on the lot. Officer Gamble testified he parked his police vehicle “up the road” and observed Mr. Bricker drive a vehicle “out on the road”. He was stopped at an intersection by Officer Gamble with the assistance of two other officers. Mr. Bricker was identified as the disqualified driver and the vehicle was impounded. He was arrested and driven home.

Officer Gamble was told by Mr. Bricker that he was going to get some anti-freeze to plow his lot.

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:

1. 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.

2. 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.

3. 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 Appellant here appeals on the basis of section 50.2(3)(d).

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

The Appellant has appealed on the ground of “exceptional hardship” under section 50.2(3)(d). Mr. Bricker has argued that the impoundment will result in hardship as described in Section 10(2). In order for the Appellant’s appeal to be considered under section 10(2), it must demonstrate that all of section 10(3) has been met. Furthermore, section 10(4) of the Regulation provides the criteria for demonstrating that every reasonable option has been considered respecting an alternative vehicle.

In reaching its decision, the Tribunal relies on the following facts:

1. Mr Bricker was the suspended driver at the time the vehicle was impounded. The Agent was convicted of a Criminal Code offence and is suspended until November 13, 2015.

2. Since the vehicle’s impoundment, the business is still in operation.

3. Mr Bricker’s wife drives him to the dealership and they have been able to get to and from the dealership on a regular basis.

4. Nobody relies on the impounded vehicle. It is not for sale and is only used to remove snow.

5. Mr Bricker, on at least two occasions, has managed to contract someone to remove the snow on the dealership lot as well as have them pull the vehicles out from under the snow. He is of the view that a snow plow is not a type of vehicle that could be rented for a business.

6. Mr Bricker’s adult son also provides assistance when required.

7. The impounded vehicle is primarily used by the Agent on the dealership lot.

Mr Bricker has been able to remove the snow from his dealership lot by contracting others. Though he may have had to wait a couple of days, the lot was ultimately cleared of its snow and the buried vehicles were pulled out from under the snow.

After considering the criteria set out in section 10(1) of Ontario Regulation 631/98, the Tribunal finds that the Appellant has not established exceptional hardship as set out in section 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

Nives Montano, Presiding Member

RELEASED: February 07, 2014