S. T. v. Registrar of Motor Vehicles, 2018 CanLII 128768

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: 2018-09-11

File Number: 11518/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(3) of the Act

Between:

S. T.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: D. Gregory Flude

Appearances:

For the Appellant: S. T., Self-Represented

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing: By teleconference:

September 5, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on September 5, 2018 to consider the appellant’s appeal of the 45-day impoundment of his 2011 Ford SRW (the “Vehicle”). The Vehicle was impounded on July 27, 2018.

2The appellant submits that the impoundment of the Vehicle resulted in exceptional hardship.

ISSUE:

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”).

LAW AND ANALYSIS:

5The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O.1990, c H.8 (the “HTA”) may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:

(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.

7While it is not an appeal requirement that an appellant specify which of the above grounds the appeal is based on, in this case the appellant circled the exceptional hardship provision on the Notice of Appeal form. As the evidence unfolded, it was clear that the vehicle was not stolen, the driver’s licence was under suspension and the appellant had made limited or no enquiries about the validity of the driver’s licence. Thus, the hearing focused on the exceptional hardship provision.

8Section 10 of O. Reg.631/98 (the “Regulation”) 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. The appellant has failed to clear this hurdle.

9The facts of the impoundment are not in dispute. The appellant’s employee was driving the vehicle in the course of his employment. The police stopped the vehicle and determined that the employee’s licence was under suspension until 2019 for driving over the legal alcohol limit. The police informed the appellant that the vehicle would be impounded for 45 days.

The Exceptional Hardship

10The appellant uses the vehicle in his business as a contractor. While he also has another vehicle, that vehicle lacks either the internal capacity or a “tow package” to carry the necessary tools and supplies the appellant needs to fulfill his contracts. The vehicle is fitted to tow a cargo trailer that will carry tools, equipment and supplies as necessary, and a dump trailer to carry debris away from jobsites. Without the towing capacity the appellant cannot carry out the essential functions of his contracting business.

11The appellant has built his business over the last seven years. He gets much of his work through word of mouth referrals from satisfied customers. Customer satisfaction comes not only from the quality of his work but because he finishes jobs on schedule. Without the vehicle, the appellant has been unable to finish jobs on schedule and his business has suffered. He currently has funds held back from contracts, outstanding payments to subcontractors, and lost future business to deal with as he tries to deal with the impoundment.

12To deal with the lack of the vehicle, the appellant made an arrangement to privately rent a truck with the requisite tow package. The person from whom he rented was actually looking to sell the truck – a late model Ford 150. He allowed the appellant to rent it while it was up for sale. In the end, the appellant was worried about damaging the truck and decided not to use it. Since then, he has rented a vehicle from a commercial car rental company. The rental vehicle can pull the cargo trailer but not the dump trailer.

13The difficulty the appellant faces in proving exceptional hardship is the fact that he made arrangements for other transportation. Section 10 of the Regulation refers three times to the requirement that there be no alternative to the impounded vehicle. I cannot consider a claim for exceptional hardship if there is an alternative to the impounded vehicle. If there is no alternative, it is only then that I am permitted to take into account a number of factors, including financial hardship. The section of the Regulation also puts the onus on the appellant to demonstrate that every reasonable option has been considered to reduce the impact of the loss of the vehicle.

14On my review of the facts I find that the appellant does not meet the requirement that there is no alternative to the impounded vehicle. The Regulation required the appellant to take reasonable steps to find an alternative to the vehicle and he did so by renting replacement vehicles.

ORDER:

15Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.