Date: 2018-12-06

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:

C.A.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Avvy Go, Member

Appearances:

For the Appellant: C.A., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and Date(s) of Hearing: By Teleconference

November 27, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1A hearing was held on November 27, 2018, 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”).

2The Appellant’s vehicle was impounded on October 24, 2018. The Appellant drove her own vehicle to attend a funeral with J.M., an employee of the company she co-owned until recently. The Appellant was not feeling well during the day but by the evening, the Appellant was experiencing dizziness. She was unable to drive and asked J.M. to do the driving. The Appellant assumed, without verifying, that J.M. had a driver’s licence.

3The Appellant’s vehicle was stopped by the Ontario Provincial Police (OPP) on the highway for excessive speed. Her vehicle was impounded because J.M.’s licence has been suspended for several years due to a number of infractions, including stunt driving, impaired driving, and refusal to provide breath or blood sample.

4The Appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship.

5While the impoundment of the vehicle has caused financial hardship, the Appellant has an alternative to the impounded vehicle. Accordingly, I confirm the impoundment.

B. ISSUES:

6The issue under the appeal are as follow:

Will the impoundment result in exceptional hardship?

C. EVIDENCE:

7The Appellant gave evidence at the hearing with respect to the difficult financial circumstances of the company. While I am sympathetic to her situation, I can only consider factors that will satisfy me that there is no alternative to the impounded vehicle. With respect to that issue, the Appellant testified that the company she manages makes dental appliances for dentists and the Appellant is often called upon to attend dental clinics to review patients’ cases. Due to changes in digital technologies, the dental business is operating at a loss and has been on a downturn for the last year and a half. The Appellant is struggling to meet payroll and often forgoes paying herself so she can pay her employees. The Appellant is using her own home equity and credit cards to cover her company expenses, and has already incurred a significant amount of debts. The Appellant submits credit card statements and bank statements which confirm her testimony about her financial situation. The statement confirms also that the Appellant received a management fee of about $75,000 from the company within the last 9 months.

8The Appellant suffers from vertigo. The stress caused by business downturn might have brought on the dizziness on the day her vehicle was impounded.

9The Appellant acknowledges that when J.M. was first hired, he did inform her that he did not have a driver’s licence. But she had forgotten about this until after the impoundment.

10Had she driven that day in her condition, the Appellant submits that consequences would have been far more serious.

11Because of the loss of use of her vehicle, the Appellant purchased a used vehicle as a replacement, but the vehicle currently is under repair.

12The Appellant’s company does have a vehicle for delivery and pick up purposes. The company hires two drivers, one of whom has his own vehicle, while the other one uses the company vehicle. Although the Appellant testifies the business is not doing well, she also testifies that the company vehicle is being used all the time, and as such she cannot rely on the company vehicle to visit clients.

13The company has clients in different parts of the Greater Toronto Area (GTA) and beyond. For clients located further away, the company will deliver the dental appliances by courier. But for clients in the GTA, the drivers of the company will make the deliveries.

14The Appellant often uses a vehicle to visit current clients and recruit new clients, and to collect payment from clients. These payments range anywhere between a few hundred to a few thousand dollars. Since the impoundment, the Appellant has found different ways to manage including: using the company car, borrowing a friend’s vehicle, and using the vehicle she had just purchased. The Appellant admits that she has not looked into other public transit options like GO Train in order to visit her clients in the areas surrounding the GTA.

15The Appellant is concerned about the cost she has to pay to recover the impounded vehicle, and she would lose her vehicle and would not have money to buy another one. The Appellant says she does not feel comfortable borrowing money from family members to pay for the impoundment, although she also says that she may be able to secure a short term loan for this purpose.

16The driver, J.M., has offered to borrow money from his family in order to pay for some of the cost of impoundment.

D. LAW:

17Under 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.

18Subsection 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.

19Section 10 of O. Reg. 631/98 (the “Regulation”) is very specific and sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.

20Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

21The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.

22Following a hearing, under s. 50.2(5) of the Act, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

23There is no question that the impoundment has affected the Appellant financially. The Appellant talks about the stress that the impoundment has put her under, and the emotional impact is evident throughout the hearing as well.

24While I appreciate that the Appellant had forgotten about J.M.’s driving record, the HTA puts the onus on the owner of the vehicle to exercise due diligence to determine that the licence of the driver of the vehicle is not under suspension. In this case, the Appellant did not ascertain the validity of J.M.’s licence, because she was unable to drive due to a health condition.

25I am sympathetic to the circumstances faced by the Appellant which led to the impoundment of her vehicle. However, when a police officer is satisfied that a person is driving while suspended, the officer is required to detain and impound the vehicle.

26While I appreciate that the Appellant has limited means to pay for the cost associated with the impoundment, the evidence confirms there are several alternatives to the impounded vehicle available, including the company vehicle and the vehicle that the Appellant has purchased. While the Appellant has not explored the option, there is also available public transit system serving the GTA. The Registrar also points out that the Appellant may also explore using courier services for pick up or delivery which will free up the company vehicle for in person visits to the dentists. No doubt none of these options are ideal and will cause inconvenience to the Appellant, they are reasonable alternatives nevertheless.

27Given that there is an alternative to the impounded vehicle available, the Appellant therefore has not established that she will suffer exceptional hardship as the term is defined under the Act, and on that basis I also cannot consider the financial loss that may follow as a result of the impoundment.

ORDER:

28For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.