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 in contravention of a condition imposed for a prescribed reason on his or her driver’s licence under a conduct review program under section 57, that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.
Between:
S.H.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Sandeep Johal, Member
Appearances:
For the Appellant: Frederick Layne, Agent
For the Respondent: Steve Grootenboer, Agent
Court Reporter: Emily Whittet
Place and Date of Hearing: Teleconference
November 9, 2018
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant is the owner of a 2006 Ford commercial vehicle. On September 28, 2018 the appellant allowed an employee to drive her vehicle and unbeknownst to the appellant, his licence had a condition that a mandatory ignition interlock was required from June 19, 2018 to June 19, 2019.1 The driver was stopped by police and was charged under the Highway Traffic Act (“HTA”) with driving a vehicle without an ignition interlock device, and the appellant’s 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, and the appellant asks that the Tribunal order the Registrar to release her vehicle.
3I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the HTA and its regulations. In determining whether exceptional hardship will result from an impoundment, regulations under the HTA prohibit me from considering inconvenience.
4The appellant does not dispute that she did not exercise due diligence to find out the status of the driver’s licence and assumed the licence was valid and without conditions. As a result, the only ground on which she appeals is that the impoundment will result in exceptional hardship.
B. ISSUES:
5Section 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 the following ground:
a. “that the impoundment will result in exceptional hardship.”
C. RESULT:
6I find that the appellant has not proven the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
D. LAW:
7Under the HTA, where a police officer is satisfied that a person is driving in contravention of a condition on his or her driver’s licence, 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.
8The 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.
9To 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.
10Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
11The applicant’s reason for appealing the impoundment is because of financial losses which according to the appellant, has resulted in exceptional hardship. In order to be successful she must prove four things, including that there is no alternative to the impounded vehicle. (Section 10(1) of Regulation 631/98). If the appellant is unable to prove that there is no alternative to the impounded vehicle, then I do not have to consider the remaining three factors. I now turn to a consideration of whether the appellant has proved there is no alternative to the impounded vehicle.
E. ANALYSIS:
Did the appellant have an alternative to the impounded vehicle?
12It is my finding that the appellant has not suffered exceptional hardship as a result of the impoundment as set out in the legislation as she was able to find an alternative.
13The appellant submits that it has been difficult to operate the business as a result of the vehicle being impounded. She has tried to find the cheapest alternative in order to keep the business operating by paying a friend to work for her and using her friend’s truck.
14The appellant also has a second commercial vehicle that is being used in the operation of the business, although the appellant submits that the vehicle is not as ideal as the impounded vehicle as it only has two seats. However, it is an alternative which is being used by the appellant.
15The appellant further submits that she has had to turn away business because she is unable to take on more work as a result of the impoundment, and this has impacted her income and she will not be able to afford the impound fees.
16I have little doubt that the costs of the impoundment 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 as set out in section 10(3) of the Regulation.
17With respect to the first factor, I find that there is a reasonable alternative to the impounded vehicle available to the appellant during the period of impoundment as she has been able to rent a vehicle on occasions from a friend as a substitute to her impounded vehicle, as well as use her second vehicle in order to keep the business operating. It may be rather inconvenient and costly to rent a vehicle, however according to the Regulation, inconvenience to any person is not a factor that can be considered, and nor can I consider financial or economic losses where, as in this case, there is an alternative to the impounded vehicle.
18I conclude that the impoundment will not result in exceptional hardship as defined in s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
19For 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
Sandeep Johal, Member
Released November 28, 2018