LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-04-05

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended

Between:

Skylift Rentals Ltd. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Geneviève Blais, Member

Appearances:

For the Appellant: Jessie Smith, Agent

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing:

By teleconference March 28, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1. A hearing was held on March 28, 2017, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”).
2. The Appellant’s vehicle was impounded on February 17, 2017. The Appellant filed his appeal on March 2, 2017. The Appellant is a company that provides rental equipment and service. An employee of the company, whose licence was suspended as a result of a conviction for Driving with more than 80 mgs alcohol in blood, was the driver of the vehicle. He was stopped at his residence, the vehicle was detained and a Notice of Impoundment was issued for a period of 45 days.
3. The Appellant appealed the impoundment to the Tribunal on the basis that the company had exercised due diligence in attempting to determine that the licence of the driver at the time it was detained was not then under suspension and on the ground that the impoundment will result in exceptional hardship. The suspended driver testified that, in December 2016, he provided a driver’s abstract to the company indicating a valid licence. However he was not able to provide a record of this information to submit as evidence at the hearing. The Agent from the Ministry of Transportation provided the driver’s record which clearly indicates that the driver of the vehicle has two licence suspensions from July 2016 until January 2018. Ms. Smith, Agent for the Appellant submits that the company is experiencing hardship and requires the vehicle to adequately service their customers. Since the impoundment the company has used another trucking company to move larger equipment. The Appellant‘s Agent submits that there has been a loss of income and outsourcing the work has been very inconvenient and costly. The Appellant is asking the Tribunal to order the Registrar to release the vehicle.
4. I am required to determine whether due diligence was exercised and whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and regulations. The Appellant provided no evidence to substantiate the claim that reasonable steps were taken to ensure the validity of the driver’s licence and due diligence was exercised. While the impoundment of the vehicle has caused inconvenience and some increased costs, the Appellant has not demonstrated that there is no alternative to the impounded vehicle, as the company has, since the impoundment, successfully managed to outsource some work and operate the business. No evidence was provided to substantiate a loss of income. Accordingly, I confirm the impoundment.

ISSUE

5. The Appellant raises two issues on this appeal:

• Did the Appellant exercise due diligence in attempting to determine that the licence of the driver was not under suspension at the time of the impoundment?
• Will the impoundment result in exceptional hardship?

EVIDENCE:

1. The owner of the impounded vehicle is the Appellant. The motor vehicle, a 2010, GMC, SIE vehicle was impounded on February 17, 2017. The Appellant filed an appeal in this case on March 2, 2017.
2. The suspended driver, an employee of the Appellant, stated that on the evening of the impoundment, he was stopped on the driveway of his residence by a police officer. The suspended driver was on foot returning from a bar and the vehicle was parked in the driveway. The police officer told him he had been driving the vehicle and impounded the vehicle. The suspended driver is disputing the incident and he believes the impoundment was done incorrectly. He has retained a lawyer to further investigate the matter. Ms. Smith, Agent for the Appellant stated that she has been employed with the company since January 2017 as the rental coordinator. She resides with the suspended driver and on the evening of the impoundment, she had driven the vehicle home from work. The suspended driver was hired by the Appellant in December 2016 as a service manager. He stated that at the time he was hired he provided a driver’s abstract to the company and he believed that his licence was only suspended until January 18, 2017. However, he stated that the copy of this abstract cannot be found due to the company’s poor record keeping. In preparation for this hearing, Ms. Smith submitted an excerpt of the driver’s abstract dated March 15, 2017 and noted a licence suspension until January 18, 2017. However, Mr. Grootenboer, Agent for the Registrar indicated that on this same document there are two other licence suspensions that are in place and effective until January 26, 2018.
3. The Appellant is a company that rents and services equipment. The impounded vehicle is equipped with a special hitch and is used to tow larger equipment. The other vehicles registered with the company are used for service and not equipped to tow equipment. Since the impoundment of the vehicle, the company has been required to outsource the work involving towing to another trucking business. Although the company has continued to operate, outsourcing the work has been inconvenient and costly. When asked on the loss of income since the impoundment, no evidence in this regard was available from either the Ms. Smith or the suspended driver. The owner of the company is frustrated with the inconvenience and the time delay in moving equipment. Ms. Smith confirmed that she and the suspended driver remain employed with the company and have a vehicle to get to work.
4. Mr. Grootenboer provided in documentary evidence 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 prepared by the officer who detained the impounded motor vehicle indicated that the driver at the time of the impoundment had been convicted of Driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada and driving while licence suspended under the Highway Traffic Act on July 26, 2016 and his licence was suspended until July 26, 2017 and January 26, 2018 respectively.

LAW

1. Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.
2. Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraphs (c) and (d) of subsection 50.2(3), which states:

50.2(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,

(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;

(d) that the impoundment will result in exceptional hardship.

1. In order to establish that the Appellant exercised due diligence within the meaning of s.50.2(3)(c) of the HTA, the Appellant must prove that he made all reasonable efforts to determine that the driver’s licence of the driver was not under suspension at the time the vehicle was detained.
2. Subsection 50.2(4) states that an owner may not rely on the ground of exceptional hardship if a vehicle owned by him or her has previously been impounded.
3. Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…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 impoundment period.

1. If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), 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.

1. In limited circumstances described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

• financial or economic loss to any person;
• loss of employment or employment opportunity to any person; or
• loss of education or training or of an educational or training opportunity to any person

1. The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

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, 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

e) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

1. Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
2. Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

ANALYSIS

1. The Agent for the Appellant submitted in closing remarks that the company requires the vehicle to properly operate the business. Outsourcing some of the company’s work is inconvenient and costly.
2. Mr. Grootenboer submitted that the suspended driver claims to have provided a driver’s abstract at the time of his employment that contained information indicating he had a valid licence. However no proof of this document was provided at the hearing. The Ministry records clearly indicate that the driver of the vehicle did not have a valid licence at the time the vehicle was impounded. Since the impoundment, Mr. Grootenboer stated that the company has outsourced some of its work and alternatives to the impounded vehicle are available. Therefore, the grounds for due diligence and exceptional hardship, as defined by the Regulation, have not been met.
3. The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities.
4. Due diligence as defined in section.50.2 (3)(c) of the HTA, requires an owner of the vehicle to make efforts to determine whether or not the licence of the person who is to drive the owner’s vehicle is valid. The courts have held that to rely on a defence of due diligence, an Appellant must demonstrate that reasonable steps were taken to ensure the validity of the driver’s licence.
5. When the suspended driver testified, he stated that he was not driving the vehicle on the evening of the impoundment and the vehicle should not have been impounded. Notwithstanding, the suspended driver did not call any corroborating evidence or witnesses in support of his statement. In cross examination he stated that the police officer was already at his house when he arrived home. The lack of evidence to support the suspended driver’s version of the evening events leads the Tribunal to not accept the suspended driver’s testimony that he was not driving the vehicle that was impounded.
6. The evidence provided in this case does not support that reasonable efforts were taken by the Appellant to ensure the validity of the driver’s licence. The suspended driver stated he provided an abstract to his company to support his claim that he had a valid licence at the time he was hired. However if this abstract was obtained from the Ministry it would not reflect that the suspended driver had a valid licence. An extended driver record search document provided by the Ministry indicates that the suspended driver has licence suspensions periods until January 26, 2018.
7. Accordingly, the Appellant has not established that due diligence within the meaning of s.50.2 (3)(c) of the HTA was exercised.
8. In order to establish exceptional hardship under s. 50.2(3)(d) of the HTA, the Appellant must first establish that there is no alternative to the impounded vehicle, which requires that every reasonable option was considered that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. If the Appellant is able to establish that there is no alternative, the Appellant must then show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(3) of the Regulation. The Agent for the Appellant submits that the impoundment has resulted in an inconvenience for the company and extra financial costs.
9. Since the Appellant’s vehicle was impounded the company has outsourced some of the work and the company has been able to operate and the employees are still working. While there may be some inconvenience and additional cost to the company there is no evidence to support that there has been a reduction in its revenue. The Appellant was unable to prove that there are no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship under the Regulation.
10. I accept the Appellant’s evidence that the impoundment has been inconvenient and has added extra costs for the company. Nevertheless, there is an alternative to the impounded vehicle, and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the HTA has not been met. The Appellant’s current arrangement is an alternative to the impounded vehicle within the meaning of s. 10 of the Regulation.
11. As there is an alternative to the impounded vehicle, I am not able to consider any employment or financial loss under s. 10(2)(b) or (c). In any event, the Appellant has not established a financial loss that meets the criteria of the Regulation, as there is no evidence that the Appellant is at risk of losing any income as a result of the impoundment.
12. Accordingly, the Appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

1. For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

RELEASED: April 5, 2017