LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-05-04

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:

Running Water Properties Inc. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Geneviève Blais, Member

Appearances: For the Appellant: J.D.W., Agent For the Respondent: Sonia De Santis, Agent

Place and date of hearing: By teleconference April 27, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW:

1. A hearing was held on April 27, 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 is a small company involved in the flooring, kitchen and bath renovations. The vehicle was impounded on April 2, 2017. J.D.W. is an employee of the company and has sole use of the impounded vehicle. He was authorized by the owner of the company, J.L., to act as agent for the company. The suspended driver, J.G., was an acquaintance of J.D.W. J.G.'s licence was suspended as a result of a conviction for Driving with more than 80 mgs alcohol in blood. The vehicle was stopped at roadside where it was established that J.G. was a suspended driver. 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 impoundment will result in exceptional hardship. The Appellant's owner indicated that J.D.W. relies on the vehicle to drive to and from work and to attend to various job sites. He has not been able to go to work for several weeks and his employment may be in jeopardy. The company is losing money and has not been able to meet commitments with customers. The vehicle is instrumental to the company. The Appellant is asking the Tribunal to order the Registrar to release the vehicle.

4. The Tribunal is required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and regulations. The Appellant's Agent submits that there has been a loss of income for himself and the company. While the impoundment of the vehicle has caused inconvenience and some increased costs for the Appellant and hardship for the employee, the Appellant, as owner of the vehicle, has not demonstrated that there is no alternative to the impounded vehicle and has continued to operate the business. Accordingly, the Tribunal confirms the impoundment.

ISSUE:

5. Will the impoundment result in exceptional hardship?

EVIDENCE:

6. The Appellant is a company. The motor vehicle, a 2013, CHEV, EQU was impounded on April 2, 2017. The Appellant filed an appeal in this case on April 7, 2017.

7. J.D.W., Agent for the Appellant, explained that he is an employee of the Appellant company. He has been with the company for approximately three and one half years. Although the company is the registered owner of the impounded vehicle, J.D.W. considers the vehicle as his own, has sole use of the vehicle and pays the monthly lease costs and insurance. This was a business arrangement made with J.L., the company owner, to allow JDW to acquire a vehicle for work duties and offset the costs of insurance and leasing a vehicle on his own. J.D.W. resides approximately 45 minutes from his job site. He uses the vehicle to drive to and from work and attend various job locations, pick up products and perform other duties required by the company. Since the impoundment he has missed over two weeks of work as he has no means of transportation. He cannot afford to rent a vehicle. He has been unable to borrow a vehicle. He has no cash flow and has borrowed money to pay bills. He may not be able to make his next mortgage payment. He is married with three young children. His wife does not work outside of the home. J.D.W. fears losing his job as a result of the vehicle impoundment.

8. On the evening of the impoundment J.D.W. explained that he had worked late and stopped to have a beer before returning home. At the end of the late evening, J.D.W. felt he did not want to drive home as he had consumed some alcohol. He called J.G., a person he has known for a few years and who lives in his area. He asked J.G. to drive him home with the vehicle. As he had seen J.G. frequently driving vehicles, he assumed he had a valid licence. He was devastated when the vehicle was stopped at roadside and J.G. was found to be a suspended driver. Since the impoundment, he has been unable to locate or contact J.G.

9. J.L., the Appellant's owner testified that the company is in the business of renovating kitchens and baths. The company works on six or seven homes at a time and mobility between job sites is a significant factor to doing business. J.D.W. is a fantastic employee who goes from site to site, picks up and delivers products and acts as back up for trade persons. He is reliable and instrumental to the business and the impounded vehicle is crucial to his ability to do the job. Since the impoundment, J.L. stated that the company has not been able to keep job completion deadlines and a few customers have cancelled their contracts. J.D.W. has not been able to get to work and the company is losing money.

10. In cross examination, J.L. conceded that, since the impoundment, he has used courier and delivery services to get products to job sites. However, these alternatives are expensive. When asked about the option of renting a vehicle to facilitate J.D.W.'s employment duties, he indicated that the company is already losing money and cannot afford to pay additional costs of a rental. With regard to other vehicles owned by the company, J.L. stated that each vehicle is fully used by other employees to operate the business. The situation is financially difficult for the business and for J.D.W. who has put his job in jeopardy as a result of his actions. Although the company has continued to operate, J.L. is frustrated with the inconvenience and fears his business may be impacted.

11. Ms. DeSantis 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 on February 21, 2017 and his licence was suspended until February 21, 2018.

LAW

12. 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.

13. 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 paragraph(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,

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

14. 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.

15. 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.

16. 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.

17. 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

18. 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:

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).

19. Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

20. 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:

21. The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities and the facts presented have proven the ground of exceptional hardship.

22. 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. His employment with the Appellant company is threatened as a result of the impoundment as he is unable to get to work. His personal financial situation is very strained. Ms. DeSantis submitted that the Appellant's company has several vehicles to operate the business. In addition, alternatives to the impound vehicle have been utilized by the Appellant with the use of courier and delivery services. The Appellant has discounted the option of renting a vehicle as an alternative to the impound vehicle as he sees it as expensive and an additional cost to his business. However, this option could provide temporary relief for the business and its employee, J.D.W. The ground of exceptional hardship, as defined by the Regulation, has not been met.

23. The Tribunal found J.D.W., Agent for the Appellant and J.L., owner of the company to be credible, honest and forthright in their evidence. J.D.W. is quite understandably very upset at being deceived by the suspended driver and regrets having assumed he had a valid licence. The Tribunal has sympathy for the predicament in which he finds himself as a result of impoundment. J.L. feels aggrieved and concerned about the impact on his business and troubled over the possibility of terminating the employment of a valuable employee. However, the legislation governing impoundments is onerous and vehicle owners often face harsh consequences. The Tribunal is bound by the statute and must apply the criteria that define the ground for exceptional hardship on the vehicle owner, which limits what the Tribunal can consider in this case.

24. Since the Appellant's vehicle was impounded, the company has been able to operate by using courier and delivery services and other vehicles owned by the company. While the Tribunal accepts that some of contract deadlines and customers may have been impacted, 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.

25. I accept the Appellant's evidence that the impoundment has added extra costs for the company and the situation has been difficult for the employee, J.D.W. Nevertheless, the Appellant has found alternatives 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 arrangements are an alternative to the impounded vehicle within the meaning of s. 10 of the Regulation.

26. 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. Regrettably, the financial and economic hardship for J.D.W. as an employee of the Appellant, does not meet the definition of the exceptional hardship ground of appeal as set out in the legislation which can only be applied to the owner of the vehicle.

27. 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

28. 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: May 4, 2017