Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-08-25
FILE:
10372/MVIA
CASE NAME:
10372 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
2120260 Ontario Inc.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Geneviève Blais, Member
APPEARANCES:
For the Appellant:
Bibi Baksh, Agent
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
August 23, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on August 23, 2016, 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) of the Act, the Tribunal sets aside the impoundment. As a result, the Registrar is ordered to release the Appellant’s motor vehicle.
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: 2014 HINO HIN (the “vehicle”)
Date of Impoundment: July 22, 2016
Date of Appeal: August 3, 2016
ISSUES
As set out in the Appellant’s Notice of Appeal (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 pleads for the return of the vehicle on the ground that without the impounded vehicle the Appellant’s ability to operate a small fish, produce and meat store is in jeopardy and the business is facing considerable financial loss.
Ms. Baksh, the principal of the Appellant and Agent at the hearing, gave evidence. She reiterated the statements in the Notice of Appeal and provided documentation that relates to the Canadian Food Inspection Agency guidelines and regulations for the transportation of fish. The Appellant stated that her store sells fresh fish which she imports from the Caribbean. Her business is 80% sustained by the sale of fresh fish. She indicated that the business is losing approximately $12,000 a week in sales.
The business uses the vehicle which is a specialized van equipped with a stainless steel refrigerated interior recommended for the transport of fish. The business picks up a weekly supply of fish from the airport terminal and uses the vehicle on a daily basis to transport other goods, such as fresh vegetables and fruit sold at the store.
In further testimony, Ms. Baksh stated that since the impoundment, she has had to sell her personal vehicle in order to meet her financial obligations and her family now travels by bus. Her monthly expenses include the store rental of $12,000 and the vehicle payments of $2,800. The store business, which she operates with her husband, is the only source of income for the family.
Ms. Baksh stated that the suspended driver had been working for her as a driver for three years. He was a trustworthy and reliable employee. She stated that in December 2015, she saw his valid “AZ” licence. She was totally unaware that his licence had been suspended in July 2016, ten days before the impoundment of the vehicle on July 22, 2016, as the employee had failed to advise her of his conviction leading to the licence suspension. Immediately following the impoundment of the vehicle, she dismissed the suspended driver from his employment. She stated that, in the future, she will take steps to request on a regular basis, abstracts from her driver.
In cross-examination, Ms. Baksh stated that it is not possible for the business to rent a specialized refrigerated truck that complies with the legislated fish inspection regulations required for the transport of fish from a rental company that is located at a reasonable distance from her business. The only refrigerated vehicle available within a reasonable distance has wooden walls and floors and the evidence was that this was contrary to the regulations. Ms. Baksh referred to the regulations she provided in her disclosure documents which stated as follows: “wood is not acceptable because it is a material which will become soaked with liquids, blood and slime, all of which contain spoilage bacteria and provide a fertile media for growth”. She conceded that since the impoundment of the vehicle she has been required to rent a truck once a week to transport vegetables and fruit. However, as the sale of these products is a very small part of her business, she must purchase fish to sustain the overall business costs. She stated that she is not prepared to use an inappropriate rental van to transport fish and risk non-compliance with the regulations. If contamination of the fish occurred due to improper transport methods, she could potentially jeopardize the safety and health of her customers.
In further cross-examination, Ms. Baksh defended her statement that she is unable to locally rent an alternate vehicle to safely transport fish. She disputed the suggestion by the Registrar’s Agent that an alternate vehicle may be available at other locations across the city. She stated that she rented a truck for the transport of vegetables and fruit from a local rental company as she could take a bus or walk to the location.
She reiterated that to get to a rental location across the city or much further away is not a reasonable option as she is unaware of where such a specialized vehicle could be available and she has no reasonable means of transportation to travel long distances to rent a suitable van, pick up her fish supply and return the vehicle accordingly.
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:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant and the driver at the time of the impoundment, as owners;
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 on July 12, 2016, of Blood/Alcohol Content in excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 12, 2017.
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.
Ontario 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).
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” and “hardship” as follows:
Exceptional: Of the nature of or forming an exception; unusual.
and
Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.
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 also 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
In closing, the Appellant’s Agent stated she requires the vehicle for transportation to pick up fish for sale at her store. She emphasized that the store is her livelihood and her financial situation is very strained. She is already losing customers as she has no fish to sell. The loss of the vehicle has caused her significant hardship. The Tribunal accepts the Appellant’s evidence that the location of a suitable rental vehicle is sufficiently far away such that this is not a reasonable option in these circumstances.
The Agent for the Registrar reiterated that the Appellant has not considered mitigating its loss by fully inquiring into renting a suitable vehicle to transport fish from other rental companies located a further distance away from her store.
The first part of the exceptional hardship test requires that the Appellant show that it has no reasonable alternative to the impounded vehicle. This is described further in section 10(4) of the Regulation:
- (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 (emphasis added) 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.
Although the Agent for the Registrar indicated that the Appellant has not fully inquired into the availability of a suitable alternate vehicle to transport her product, this assertion was not supported by the evidence. The Tribunal finds that the lack of a reasonable alternative in this case is based on the combination of factors – the Appellant requires a specialized truck to transport fish to comply with the Canadian Food Inspection Agency fish inspection regulations and although such a vehicle may be available to the Appellant at a remote location, nonetheless, there is no certainty that such a vehicle can be provided. The reasonable measures taken by the Appellant to rent what is available to her have not been sufficient to mitigate her loss given the specialty of the business. Thus, the Tribunal finds that there is no reasonable alternative vehicle available to the Appellant.
Thus, having found that an alternative to the impounded vehicle does not exist, the Tribunal may proceed to consider loss of income. Although vociferous in her statements about her current dilemma and frustrated with the increasing loss of business and imminent threat to her livelihood, the Appellant’s Agent was credible, in her testimony. The Tribunal accepts the fact that the company has been losing $12,000.00 a week since the impoundment which is a significant and immediate financial loss. For a business such as the Appellant, a loss of that magnitude is likely to have a lasting effect. The Tribunal is also satisfied that all other elements of regulation 10(3) are met. Considering the entire circumstances in this case, the Tribunal finds that the impoundment is creating a loss for the business and the Appellant’s situation meets the definition of exceptional hardship.
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
Geneviève Blais, Member
Released: August 25, 2016