K.D. v. Registrar of Motor Vehicles, 2018 CanLII 127582

Date: 2018-12-13

File Number: 11658/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1 of the Act

Between:

K.D.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: K.D., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference November 8, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on November 8, 2018 to consider the appellant’s appeal of the 45-day impoundment of his 2007 GMC truck. The truck was impounded on September 19, 2018 and was returned to the appellant upon payment of the towing and impoundment charges on or shortly after November 3, 2018 and prior to this hearing.

2The appellant appeals on the grounds of exceptional hardship.

ISSUES:

3The issue to be determined is whether the impoundment resulted in exceptional hardship to the appellant.

CONCLUSION:

4On the evidence before me at the hearing, I find that the impoundment did not result in exceptional hardship as defined in section 50.2(3)(d) of the Highway Traffic Act R.S.O. 1990, c. H.8 (“Act”).

EVIDENCE:

5The appellant K.D. and his family operate a contracting and landscaping business. In addition to himself, his wife and one son are currently the full-time employees of the business.

6At the time of its impoundment, K.D.’s vehicle was being driven by his wife’s cousin T.Y. who was then employed by K.D. Although it was not part of T.Y.’s responsibility to drive the vehicle, on his own initiative he drove it to a secure parking area at the end of a work day. K.D. was not aware that T.Y.’s Ontario drivers licence had been cancelled.

7K.D. has three other vehicles that are used in his business. He testified that the impounded vehicle is his largest and most essential one, because it is able to pull a trailer for transporting gardening tools and equipment. It can also be fitted with a snow plough and salter for his winter snow ploughing business, as can one of his other trucks.

8As a result of the impoundment of the vehicle, K.D. was unable to properly service his property-maintenance clients. He did not take steps to rent a vehicle to supplement his fleet during the impoundment period, believing no suitable replacement vehicles would be available.

9In both the Notice of Appeal and in the evidence given under oath, K.D. spoke of the effect of the impoundment on his family’s already difficult financial circumstances. They have been struggling to keep the business going.

10At the time of impoundment K.D. had been relying on a monthly payment from one customer to pay the costs associated with the family home. At or around the time of the impoundment that contract came to an end and was not renewed. K.D. believes that the impoundment directly affected his ability to properly service that customer and was a direct cause of the cancellation of the contract. When the payments stopped the family lost their home and had to live in a hotel for two weeks until alternate living arrangements were made.

11The impoundment also caused a postponement of a scheduled appointment to have a snow plough and salter installed on the impounded vehicle for the winter season. As of the date of the hearing a new appointment had been made for November 22, but K.D. remained concerned that his remaining six or seven contracts will be in jeopardy if the plough and salter are not installed in time for the first snow fall.

LAW AND ANALYSIS:

12The owner of a vehicle that has been impounded may appeal the impoundment pursuant to s. 50.2 of the Highway Traffic Act, R.S.O.1990, c H.8, s.50.2.

13The grounds for appeal are set out in s. 50.2(3) of the Act:

(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.

14Section 10 of O. Reg.631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship has resulted from an impoundment. The burden of proving such hardship rests on the appellant. In this case, the appellant alleges that the impoundment resulted in his losing a large contract and that the loss of the contract in turn resulted in exceptional hardship.

15Financial and economic losses may be considered only 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 as a result of a loss by the suspended driver of the type set out in s.10(2)(b), (c) or (d).

16Subsection 10(4) states that in order to show that there was 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 impound period.”

17The test imposed by the law is clear and strict. The first criterion requires the appellant to demonstrate that there was no alternative to the impounded vehicle that could have mitigated any loss suffered by its impoundment. In this case K. D. has admitted that he did not take any steps to secure a suitable alternative vehicle during the time of impoundment, believing none would be available.

18Even were he to have exhausted all options to secure an alternative to the impounded vehicle, he has not shown that the 45-day impoundment is the cause of an immediate, significant or lasting loss. The difficult financial circumstances in which K.D. found himself following the impoundment appear to have existed before rather than directly as a result of the impoundment. The business continues to operate with several current contracts and now a full complement of vehicles. I therefore could not on the evidence conclude that the impoundment resulted in a loss that was immediate, significant and lasting.

19For these reasons, I find that the appellant has not established that the impoundment resulted in exceptional hardship.

ORDER:

20Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.