Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10493/MVIA
CASE NAME: 10493 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: Bryant Greenbaum, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: November 2, 2016
DECISION AND ORDER
A hearing was held on November 2, 2016, by teleconference, to consider the Appellant’s appeal under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).
Pursuant to section 50.2(5) of the Act, the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will continue to be detained at the impound facility for the remainder of the 45-day impoundment period.
BACKGROUND
The Appellant’s motor vehicle was impounded on October 1, 2016, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on two grounds: (1) due diligence was exercised in attempting to determine if the driver’s licence of the driver of the motor vehicle was under suspension, and (2) exceptional hardship.
The Appellant is the principal of a moving company that primarily moves office furniture for a single client, a furniture store. The vehicle is used for the business. The Appellant allowed his friend, whose licence was under suspension, to drive the vehicle, while doing contract work for the Appellant’s company.
The Tribunal must decide two issues:
Should the Tribunal order the Registrar to release the motor vehicle on the basis 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 was not then under suspension?
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
ISSUE 1
Did the Appellant prove that he had “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,” as set out in section 50.2(3)(c) of the Highway Traffic Act?
The Appellant stated that he did not check with his friend to ask if his driver’s licence was valid, and not suspended, prior to letting him drive his vehicle on the day of the impoundment.
Rather, the Appellant stated that he thought his friend had a valid driver’s licence because he had seen him drive to the Appellant’s depot when he was working on other contracts with the Appellant. Also, the Appellant believed that his friend had a valid driver’s licence because his friend had purchased a new vehicle recently. The Appellant did state that he knew his friend had problems with his driving licence, in the past. On one occasion, in the summer or fall of 2015, the Appellant’s suspicions were raised that his friend’s driving licence was not valid when his friend refused to drive out of the Appellant’s workplace when a police officer stopped nearby. Despite these concerns, the Appellant did not take steps to ask to look at the friend’s driver’s licence, nor did he request a driver’s licence abstract from the Ministry of Transportation for his friend who was a regular contract driver for his company.
The evidence clearly does not support the ground of ‘due diligence’; more is required than simply acting on inference or assumption, especially when the Appellant was aware of his friend’s previous licence issues. As a business owner involved in the moving industry, it was incumbent upon him to actively inquire about the licence status of his drivers.
ISSUE 2
Does the impoundment cause “exceptional hardship” within the meaning of s.50.2(3)(d) of the Highway Traffic Act?
The legislative test for this ground of appeal is very clear and detailed.
Section 10 of the Regulation, Long-Term Vehicle Impoundment under Section 55.1 of the Act, requires that there be no alternative to the impounded vehicle. Section 10(4) states that in order to show that no alternative is available, “… the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.”
Even if the Appellant passes this hurdle of showing no available alternative to the impounded vehicle, the Appellant must also show that the impoundment will result in a threat to health or safety, or that it will cause a financial, employment or education loss to a person other than the suspended driver that will be “immediate, significant and lasting”. The Regulation also states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
The Tribunal finds that there are reasonable alternatives to the Appellant’s impounded vehicle, even if they are inconvenient and may result in some extra expense. More specifically, the Appellant acknowledged in testimony that he rented trucks to fulfill larger moving contracts during the impoundment period, while also noting that he turned down three or four smaller contracts due to lower profit margins on account of the rental costs. The Appellant also mentioned that he had the use of another vehicle during the impoundment period for all personal matters.
Furthermore, even if the Appellant could pass the hurdle of showing that he has no reasonable alternatives to the impounded vehicle, which he has not done, the evidence does not support a finding that there has been an immediate, significant or lasting financial, employment or education loss. His moving business is still functioning without disruption and his company will continue into the future. The Appellant testified that his main client is still satisfied with his services and continues to work with him. While not determinative, the Appellant stated that he has started discussions with his friend to recoup all impoundment and rental costs from him and the Appellant will fully canvass this alternative.
Therefore, the Tribunal finds that the evidence does not establish exceptional hardship as defined in the section 10 of the Regulations.
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
_______________________ Bryant Greenbaum, Member
Released: November 9, 2016