Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9618/MVIA
CASE NAME: 9618 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.
ABCO Tire Recycling and Storage Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Chantal Proulx, Vice-Chair
APPEARANCES:
For the Appellant: Dave Saunders, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: June 30, 2015
REASONS FOR DECISION
A hearing was held on June 30, 2015, 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 “Act”).
Pursuant to section 50.2 (5), the Tribunal issued an order on July 7, 2015, requiring the Registrar to release the vehicle, with reasons to follow. These are the reasons for the Tribunal’s Order.
BACKGROUND
The Appellant’s motor vehicle was impounded on June 6, 2015, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on the ground that the impoundment will result in exceptional hardship.
The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: ABCO Tire Recycling and Storage
Motor Vehicle: 2005, Ford, F350
Date of Appeal: June 11, 2015
ISSUES
The Tribunal must decide if it should order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship.
FACTS
Evidence for the Appellant
Dave Saunders, the agent for the Appellant, was the only witness. He testified that he is the sole proprietor of ABCO Tire Recycling and Storage, a small company operating out of Nova Scotia. The Appellant recycles cars, reusable parts and tires. The Appellant is a subcontractor for the Ontario Tire Stewardship Program. He purchases tires at a discount in Ontario and then sells them in Nova Scotia.
Mr. Saunders testified that the Appellant owns one motor vehicle, the Ford F-350 that was impounded on June 6, 2015. Mr. Saunders was experiencing problems with the motor vehicle and he brought it to Alliance Auto Service to be repaired. He was told that to identify the issue with the fuel injector, they would have to proceed by trial and error, meaning they would change a part and then test drive it to see if it resolved the problem. RM an employee at Alliance Auto Service, was testing the Appellant’s motor vehicle when the investigating officer stopped him and impounded the Appellant’s motor vehicle. RM drove the Appellant’s vehicle while his driver’s licence was suspended under the Criminal Code of Canada, resulting in the Appellant’s motor vehicle being impounded for 45 days.
Mr. Saunders stated that he needs the motor vehicle to work. He testified that he has not worked since June 6, 2015. He is currently staying at a friend’s house in Ontario until the situation with the motor vehicle is resolved.
In cross-examination, Mr. Saunders explained that he comes to Ontario for 2 to 3 weeks at a time, every 6 weeks or so, depending on the season. He confirmed that this is now a slower season therefore he does not come to Ontario as often. In response to questions from the agent for the Registrar, Mr. Saunders explained that he rented a truck for 2 days following the impoundment; however, when considering the price of the rental and the mileage, it was not worth it to rent a truck because there was not enough work at this time. Mr. Saunders stated that he lost money during those 2 days, therefore he could not afford to rent a motor vehicle for a longer period of time.
In response to questions concerning his plans for work once the motor vehicle is released, Mr. Saunders explained that he is not in a position to answer at this time because he does not know if his motor vehicle has been fixed. He explained that he has already paid Alliance Auto Service $950 to fix the motor vehicle; however, he does not know if it has been fixed. He reiterated that it was the slow season and he could not make commitments without a motor vehicle. Mr. Saunders believes that the impoundment of the motor vehicle could send the company into bankruptcy. He confirmed that he has about $1000 to his name and he does not know if he will be able to resume work once the motor vehicle is returned to him because he does not know if it has been fixed. In addition, to operate the business, he needs money up front to buy tires. The company makes money only once the tires have been sold for a profit.
In response to questions concerning his efforts to obtain alternative work during the period of the impoundment, Mr. Saunders testified that he has not looked for other work. He noted that his work experience and skills are limited to this particular business. He does not have a formal education or other work experience. He explained that to make a profit in the recycling business, people have to own their motor vehicle.
Mr. Saunders is asking the Tribunal order the Registrar to release the motor vehicle on the ground that the impoundment will result in exceptional hardship, namely a financial/ economic loss and the loss of employment.
Evidence for the Registrar
The Registrar filed written submissions with the Tribunal on June 24, 2015. These documents, which contained information relating to the impoundment of the motor vehicle, were admitted into the record on consent of the Appellant. The key documents are as follows:
A copy of the Ministry of Transportation records indicating that the impounded motor vehicle is registered in the name of the Appellant as owner;
A copy of the notice of suspension and impoundment prepared by the officer who detained the impounded motor vehicle indicating 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;
A copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver, at the time of impoundment, had his driver’s licence suspended because of conviction for impaired driving under the Criminal Code of Canada. The driver’s licence of the driver was then under suspension until March 12, 2017.
The agent for the Registrar is asking the Tribunal to confirm the impoundment because the requirements of subsection 10(3) of Ontario Regulation 631/98 have not been met. More specifically, the agent submitted that the Appellant still had $1000 and that the business could resume once the motor vehicle was released. In addition, the agent submitted that Mr. Saunders did not try to find alternative work while the motor vehicle was impounded. Finally the agent for the Registrar submitted that the Appellant failed to meet the requirement of subsection 10(4) of Ontario Regulation 631/98, namely that the owner demonstrate that every reasonable option has been considered to eliminate or adequately mitigate any threat or loss to the person during the impoundment period.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded. 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.
Ontario Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner of a motor vehicle that is impounded may appeal the impoundment to the Tribunal; however, the owner may only appeal on four specific grounds which are set out in subsection 50.2(3) of the Act.
(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 appeals on the basis that the impoundment will result in exceptional hardship as set out in paragraph 50.2(3)(d).
According to subsection 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. The decision of the Tribunal is final and binding (subsection 50.2(8)).
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.
According to subsection 50.2(4), exceptional hardship cannot be argued 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 Ontario Regulation 631/98 sets out the factors the Tribunal can and cannot consider when deciding if the impoundment will result in exceptional hardship.
(1) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
(2) In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,
(a) an inconvenience to any person;
(b) financial or economic loss to any person;
(c) loss of employment or employment opportunity to any person; or
(d) loss of education or training or of an education or training opportunity to any person.
(3) The Tribunal may consider the criteria set out in clauses 2(b)(c) and (d) if the owner demonstrates that,
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle; and
(ii) will not be a result of a loss by the suspended driver of the type set out in clause 2(b), (c) or (d).
(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3)(a), the owner must demonstrate that every reasonable option has been considered and inquired into that would eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without an motor vehicle during the impound period.
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 Tribunal finds that the Appellant is entitled to assert exceptional hardship because there was no previous impoundment under section 55.1 of the Act with respect to any motor vehicle the Appellant owned.
The Tribunal must first consider whether, on a balance of probabilities, no alternative exists for the impounded vehicle. To show that no alternative to the impounded motor vehicle is available, subsection 10(4) of Ontario Regulation 631/98 requires that the owner demonstrate that every reasonable option has been considered and inquired into to eliminate or adequately mitigate any threat or loss to the person. Mr. Saunders testified that the Appellant owns one motor vehicle and this evidence was not contradicted by the evidence the agent for the Respondent presented. Mr. Saunders testified that the Appellant rented a motor vehicle for two days; however, this option was not financially viable because the Appellant lost money on those two days. The Tribunal finds that it was reasonable for the Appellant to explore the rental of a motor vehicle to continue its business while its vehicle was impounded in order to mitigate any loss. It was also reasonable to decide not to rent a motor vehicle after two days since the Appellant was operating during the slow season and had lost money during those two days, thereby worsening its situation. The Tribunal is mindful that the Appellant is a very small company located in Nova Scotia that is owned and operated by Mr. Saunders. Considering the nature of the business, the Tribunal finds that it was not reasonable or necessary for the Appellant to consider public transportation. Therefore, in these circumstances, the Tribunal finds that the Appellant demonstrated that every reasonable option was considered to eliminate or adequately mitigate any threat or loss to the Appellant. The Tribunal finds, on these facts, that the Appellant does not have an alternative to the impounded vehicle.
Having found that there was no alternative for the impounded vehicle, the Tribunal must consider if 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 Appellant did not present any evidence or arguments that would lead the Tribunal to reach this conclusion. The Tribunal therefore finds that the requirements set out in paragraph 10(1) of Regulation 631/98 have not been met.
The Appellant’s agent argued that the exceptional hardship was linked to the financial/ economic loss and to the loss of employment. The Tribunal cannot consider these factors unless the Appellant can prove, on a balance of probabilities, 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.
No alternative to the vehicle available
As indicated above, the Tribunal is satisfied, in these specific circumstances, that there was no alternative to the vehicle available.
Loss will be immediate, significant and lasting
The Tribunal accepts Mr. Saunders’ testimony regarding the limited funds ($1000) available to run the company. Without the use of the motor vehicle, the Appellant is unable to continue its business, which will result in a financial/economic loss or the loss of employment for Mr. Saunders. The Tribunal accepts Mr. Saunder’s testimony that he has not worked since the motor vehicle was impounded on June 6, 2015. The nature of the Appellant’s business – buying tires at a discount in Ontario and selling them for a profit in Nova Scotia – requires funds to purchase the tires and to maintain the motor vehicle used to generate the work and the income. Without a motor vehicle or the required funds to purchase tires, the business cannot continue. In light of Mr. Saunder’s limited past work experience and his education, the Tribunal finds that it was not reasonable to expect Mr. Saunders to find alternative employment during the period of time the motor vehicle was impounded. Furthermore, it is important to remember that Mr. Saunders lives in Nova Scotia and there are costs involved in traveling back and forth. The Tribunal accepts that the Appellant does not know if the motor vehicle is in working condition and therefore cannot predict when work will resume. Considering the Appellant’s precarious financial situation and the nature of the business, the Tribunal finds that the financial/economic or employment loss will be immediate, significant and lasting.
Impact will be on a person ordinarily transported by the vehicle
The Tribunal finds that the impact will be on Mr. Saunders, the person ordinarily transported by the motor vehicle in question. The Tribunal finds that this criterion has been met.
Impact of the loss will be on someone other than the suspended driver
RM, whose driver’s licence was suspended, was driving the Appellant’s motor vehicle when it was impounded. The impact of the loss is on Mr. Saunders, someone other than the suspended driver and will not be the result of a loss by the suspended driver. The Tribunal finds that this criterion has been met.
The Tribunal finds that the Appellant has demonstrated, on a balance of probabilities, that the impoundment will result in exceptional hardship.
The circumstances of this case are quite particular. The Tribunal finds that it was reasonable for the Appellant to leave his vehicle to be repaired and to expect that anyone working on it or driving it would have a valid driver’s licence. In the Tribunal’s view, it would be unreasonable to expect an individual who needs to have his motor vehicle repaired to exercise due diligence to determine if all the employees working at a particular garage have a valid driver’s licence.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
_______________________
Chantal Proulx, Vice-Chair
RELEASED: July 10, 2015