Licence Appeal Tribunal
FILE: 9421/MVIA
CASE NAME: 9421 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.
9421 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Dawn Matos, Paralegal
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: March 24, 2014
REASONS FOR DECISION
A hearing was held on March 24, 2014, 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 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: 2005, Chev, C45 (the “vehicle”)
Date of Appeal: March 2, 2015
ISSUES
As set out in the Appellant’s request for hearing (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 Appellant
In the notice of appeal, the Appellant's representative submitted that the impoundment of the vehicle "will result in exceptional hardship" as the truck is the Appellant's source of income and without it to operate his towing business, "I can not work".
In the course of the hearing, the Tribunal heard that the loss of the truck is costing the Appellant about $800 a week. In addition, he will have the cost of the impoundment and all of which will cause the Appellant a financial hardship.
The truck is used to provide towing services and the Appellant needs the truck in order to do his work. The person ("M") driving the vehicle at the time of the impoundment was an employee of the Appellant and was initially hired around February 2014 and then, a background check of the driver abstract showed M had a valid driver's licence as M's previous suspension had expired in November 2013.
The Appellant testified that he had a policy of doing an annual check on his employees but he had not carried out an update check by the time of the impoundment, or at the one year anniversary of M's employment start date.
The Appellant is self-employed and has two regular tow trucks and one larger flatbed tow truck. He has a number of regular contracts to service, including one with the regional police force. He could not afford to rent a replacement truck or hire himself to another towing company because that would be problematic for his regional police contract.
The Appellant's representative acknowledged the Appellant was now working the other tow truck on a double duty basis as well as the more expensive flatbed truck. The Appellant has also turned away business so he could meet the calls on his contracts.
It was confirmed that he has been able to operate throughout the impound period, which expires in approximately 11 days, and would be able to return the operation to normal once the impounded vehicle is released.
The Appellant is also planning to implement a policy of checking driver abstracts every six months rather than annually.
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 Appellant 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 September 19, 2015.
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 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:
- 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.
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
The facts of this matter are fairly straightforward and specific. The Tribunal carefully considered the Appellant's evidence to determine whether the Appellant did or did not have any alternative to the impounded vehicle and whether there would be immediate, significant and lasting hardships resulting from the impoundment.
In arriving at a decision, the Tribunal notes it cannot consider inconvenience, and furthermore, it cannot consider financial loss unless the Tribunal first finds that there was no alternative to the impounded vehicle and also that the loss would be immediate, significant and lasting.
While the Appellant's representative stated the Appellant was experiencing a weekly cost of $800 and he would also incur the impound fees, it was not shown how the financial costs would have consequential impact(s) that would be significant and last beyond the impoundment period. In fact, the evidence is that:
(1) despite the inconvenience of having lost the use of one tow truck, the Appellant was making do with a second tow truck as well as his larger flat bed truck, even though that vehicle was more expensive to use;
(2) while the Appellant was/is unable to service all calls and new business opportunities, he has been able to service a principal contract and is expected to bring the operation back to normal once the impounded vehicle is released ... which is counter to the statement in the notice of appeal that "with out the tow truck I can not work".
In effect, the Tribunal finds that while the Appellant has lost income and is incurring financial loss during the impoundment period, he does have other vehicles to see him through the impoundment period and he will be able to continue the business once the impounded vehicle is released.
The legislation defines very specific and narrow grounds for appeal, and the requirements to prove “exceptional hardship” are very detailed. The evidence does not support the Appellant’s case on either the ground of having no alternative to the impounded vehicle, or the ground of immediate, significant and lasting impact. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
Although the ground of “due diligence” in 50.2(3)(c) was not specifically raised as a ground of appeal in the notice of appeal or at the hearing, the Tribunal notes that the Appellant did not do enough to check the licence status of its drivers on a timely basis. In the circumstances of a hiring a driver who already has some history of licence suspension, it is the responsibility of the owner of the vehicle to be more careful and frequent in checking on that driver’s licence status.
DECISION
After considering all of 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
Simon Dann, Member
RELEASED: April 1, 2015