Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-05

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:

J.J.P. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Self represented

For the Respondent: Stephen Grootenboer, Agent

Place and date of hearing:

Toronto, Ontario September 27, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant is the owner of a 2013 Ford Super duty pick-up truck that he uses for his work as a project manager with a construction contractor. The appellant’s driver’s licence is currently suspended. According to an OPP officer, on August 17, 2017, the appellant was observed driving his vehicle; and as a result, the appellant was charged under the Highway Traffic Act (“HTA”) with driving while under suspension and his vehicle was impounded for 45 days.

2The appellant appealed the impoundment to this Tribunal on the basis that the impoundment will result in exceptional hardship. The appellant points out that the loss of his truck has reduced his employment income which has created financial hardship for him and his young family. The appellant asks that the Tribunal order the Registrar to release his vehicle.

3I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and its regulations. I accept that the impoundment of the appellant’s truck has resulted in significant financial losses to him. However, in determining whether exceptional hardship will result from an impoundment, regulations under the HTA prohibit me from considering financial losses experienced by the person whose driving while under suspension resulted in the impoundment. Accordingly, I confirm the impoundment.

B. ISSUES:

4Section 50.2 of the HTA provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section also sets out the only permissible grounds upon which an appeal can be based. The appellant’s appeal is based on one of those grounds: “that the impoundment will result in significant hardship”.

5Accordingly, the issue raised in this appeal is whether the impoundment will result in exceptional hardship.

C. EVIDENCE:

6The impounded vehicle is a utility vehicle which can transport work crews, tools, materials and has a towing capacity and the appellant uses the truck in his employment with a general contracting company. The company is a small operation which, at the time of the impoundment, did not operate its own vehicle.

7Before the impoundment, a work crew member would drive to the appellant’s home and drive the appellant in his truck to the work sites. Since the appellant’s employer did not operate its own vehicle, the appellant’s truck was used to transport crew, equipment and materials. In return, the appellant was paid a higher hourly wage ($5.00 per hour more) as well as a “per diem” of $30.00 per day ($20.00 of which was required for gas).

8After the impoundment, the appellant kept his employment but, since the truck was no longer available, his hourly wage was reduced and the per diem eliminated. The appellant provided a breakdown of the financial losses he experienced as a result of the impoundment. Taking into account the lower hourly wage, loss of the per diem, and work days missed as a result of the impoundment, the appellant calculates his losses as $3,380.00. In addition, he will have to pay approximately $4,000.00 to get his truck out of the pound.

9The appellant states that he and his spouse have a 4 year-old daughter and are expecting a second child. The appellant’s spouse has a part time job but the appellant is the family’s main breadwinner. The appellant states that in his circumstances the financial losses associated with the impoundment amount to exceptional hardship and he accordingly asks that the Tribunal order the Registrar to release his vehicle.

D. LAW:

10Under the HTA, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.

11Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle, 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.

12Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several criteria and factors that the Tribunal must consider, and others that the Tribunal may not consider, in determining whether exceptional hardship will result from an impoundment.

13Section 10(2) of the Regulation prohibits the Tribunal (with certain limited exceptions) from considering the following factors:

(a) 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 educational or training opportunity to any person

14The first factor - inconvenience to any person – may never be considered in determining whether exceptional hardship will result from impoundment. The last three factors may be considered only in very limited circumstances. Those limited circumstances are set out in section 10(3) of the Regulation which states:

The Tribunal may consider the criterial set out in clauses (2)(b), (c), or (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). (underlining added)

15To summarise, the Tribunal may allow this appeal and order the Registrar to release the vehicle if the Tribunal is satisfied that the impoundment will result in exceptional hardship.

16In determining whether exceptional hardship will result from an impoundment, the Tribunal shall not consider financial or economic loss unless the owner can demonstrate that there is no available alternative to the impounded vehicle, the financial loss will be immediate, significant and lasting, the impact of the loss will be upon a person ordinarily transported by the impounded vehicle and the impact of the loss will be upon a person other than the person whose driving under suspension resulted in the impoundment.

E. ANALYSIS:

17The appellant appeals the impoundment of his vehicle on the basis that the impoundment will result in exceptional hardship. That hardship is financial in nature, that in particular as a result of his truck being unavailable the appellant’s income has been reduced by about $3,380.00 and, in addition, he will have to pay the significant impoundment and towing costs that he estimates will be approximately $4,000.00.

18According to the appellant, in his present circumstances as the main breadwinner of a young and growing family, this cost is difficult to bear and imposes an exceptional hardship upon him.

19I have little doubt that these costs are difficult to bear. However, in determining whether exceptional hardship will result from an impoundment, Regulation 631/98 states that the Tribunal shall not consider financial or economic loss unless the owner can demonstrate all four of the factors noted above.

20With respect to the first factor, I find that there is no reasonable alternative to the impounded vehicle available to the appellant. Although the appellant has fortunately been able to keep his employment and arrange for transportation to worksites, his truck is more than simply a means of transportation to him. Because of its qualities as a utility vehicle, it also gives the appellant the ability to earn a greater income from his employment. The appellant states that in that sense an ordinary vehicle is not a reasonable alternative to his truck. The Registrar’s representative asked the appellant if he considered renting another utility vehicle, and the appellant replied that he had not because the costs of renting a truck to make available to his employer would almost certainly be greater than the increased earnings that would result.

21I agree with the appellant that the impounded vehicle in this case is a specialised vehicle and its use to him cannot be replaced by any other ordinary vehicle. The appellant’s increased income from his truck amounts to about $50.00 per day (assuming an 8-hour day) and renting another utility truck would very likely cost more than that. I therefore accept that there is no reasonable alternative to the impounded vehicle available to the appellant in these circumstances.

22With respect to the second factor, I find that the loss will not be lasting. The appellant’s economic loss due the impoundment is immediate and significant. However, the impact will not be lasting. After the 45-day impoundment term, the truck will again be available to the appellant and it will be open to him to utilise the economic potential of the truck as best he can. I find that this factor has not been satisfied.

23The third factor is satisfied. The appellant was ordinarily transported in the truck as a passenger, and he is affected by the impoundment.

24The fourth factor requires the appellant to demonstrate that the impact of the financial loss will be upon a person other than the person whose driving while under suspension resulted in the impoundment. In this case, the impact of the financial loss due to the impoundment is being experienced by the appellant, who was the alleged driver of the motor vehicle when it was impounded. I acknowledge that the appellant disputes the charge of driving while under suspension. However, the regulation essentially states that I may not consider the owner’s financial losses in determining whether the impoundment will result in exceptional hardship where it was the owner’s alleged driving while under suspension that resulted in the impoundment.

25As mentioned, in order for me to conclude that the impoundment will result in exceptional hardship due to financial or economic losses, the appellant must demonstrate all four of the factors listed in s.10(3) of Regulation 631/98. As noted above, the appellant failed to satisfy all four factors. While the appellant has satisfied factors (a) and (c) of s. 10(3), he has not satisfied factors (b) and (d) of s. 10(3).

26Accordingly, s.10 (2) of Regulation 631/98 prohibits me from considering financial or economic loss to J.J.P. in determining whether exceptional hardship will result from the impoundment.

27I conclude that the impoundment will not result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

28For 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.