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(3) of the Act
Between:
All Seasons Gardening & Maintenance Inc.
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Mary Ann Spencer, Member Asad Ali Moten, Member
Appearances: For the Appellant: Dennis Kourktchan, Agent For the Respondent: Sanjay Kapur, Agent
Place and Date of Hearing: By Teleconference March 23, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1A hearing was held on March 23, 2018 by teleconference, to consider the appeal of All Seasons Gardening & Maintenance Inc. (the "appellant") pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA" or the "Act").
2The appellant is in the business of snow removal. On February 15, 2017, one of the appellant's vehicles, which is equipped with a plough and salter, was being driven by B.M., an employee whose licence was under suspension as a result of a Criminal Code conviction. A Notice of Impoundment was issued for a period of 45 days.
3The appellant appeals the impoundment on two grounds; that the loss of the vehicle will result in exceptional hardship and that the vehicle was stolen at the time it was impounded.
4The appellant's agent submits that the impoundment of one of its three vehicles equipped with both a plough and salter results in a significant delay in service time to remove snow and ice and therefore an increased risk to public safety. He further submits that the impounded vehicle was stolen because it was taken without permission.
5For the reasons set out below, we find that the vehicle was not stolen at the time it was impounded and that its loss does not result in exceptional hardship. Therefore, the Tribunal confirms the impoundment.
B. Background
6The appellant operates eight vehicles, five of which are equipped with snow ploughs. Three of these five vehicles are also equipped with salters. The impounded vehicle, a 2015 Chevrolet Silverado, is one of the three vehicles equipped with both a plough and a salter.
7The appellant has snow removal contracts with a number of businesses and private residences in the Durham region. Its clients include a not-for-profit housing complex and a women's shelter.
8The appellant's vehicle was stopped at a R.I.D.E. stop on February 15, 2018 at 1:08 a.m. when it was being driven by B.M., an employee of the appellant whose licence was suspended until April 7, 2018 under the Criminal Code for operating a vehicle with a blood alcohol concentration exceeding eighty milligrams. The vehicle was impounded for 45 days and the driver was arrested.
C. ISSUES
9The issues to be considered in this appeal are:
(a) Was the appellant's vehicle stolen at the time it was impounded?
(b) Does the impoundment of the appellant's vehicle result in exceptional hardship?
The owner of the motor vehicle, the appellant, must establish the grounds for its appeal on a balance of probabilities.
D. LAW
10Under 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.
11Subsection 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. We have considered the appellant's appeal on the basis of paragraphs (a) and (d) of subsection 50.2(3), which state:
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:
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(d) that the impoundment will result in exceptional hardship.
12Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.
E. EVIDENCE AND ANALYSIS:
ISSUE 1: Was the appellant's vehicle stolen at the time it was impounded?
Evidence:
13Dennis Kourktchan, the owner of All Seasons Gardening & Maintenance Ltd. testified on behalf of the appellant.
14Mr. Kourktchan testified that he hired B.M. in October, 2017. Because B.M. did not produce a driver's licence, he was hired as labourer to work on a landscaping crew. Mr. Kourktchan found B.M. to be a diligent and reliable employee and he was given a key to access the appellant's shop. He did not have permission to drive the appellant's vehicles.
15Mr. Kourktchan testified B.M. used his key to take the impounded vehicle. He did not have the permission of either Mr. Kourktchan or of P.S., the appellant's manager of operations, who was out of the country. B.M. was not using the vehicle for work. Mr. Kourktchan explained that there was no snow or ice event that day and the only risk was of ice forming from run-off from accumulated snow. The decision whether or not to plough or salt is made based on the weather and on a drive-by assessment of client site conditions. The decision for the night of February 14/morning of February 15, 2018 was that ploughing or salting was not needed.
16Mr. Kourktchan explained that he noticed that the appellant's vehicle was missing when he went to work on February 15, 2018. B.M. told him that a chain had broken and he had taken the vehicle to the welder. It was not until the morning of February 16, 2018 when Mr. Kourktchan picked up a voice message from Constable Natalie Waters of Durham Regional Police that he learned the vehicle had been impounded. After he received this message, Mr. Kourktchan requested B.M.'s driver's licence abstract and discovered he had multiple suspensions. Mr. Kourktchan testified that B.M. advised him that the suspensions on his record were an error and that he had the paperwork to prove this.
17Accompanied by B.M., whom he had called into the office, Mr. Kourktchan went to the police station at approximately noon on February 16, 2018. He believed that all he had to do was go to the police station to get the appellant's vehicle back. However, he spoke to staff at the front desk who advised him of his right to appeal the impoundment. Later that day, he telephoned Constable Waters. He testified that no one advised him to complete a stolen vehicle report and his priority was getting the vehicle back.
18B.M. then disappeared for a day. Mr. Kourktchan subsequently learned that B.M. had been hospitalized. However, when B.M. returned to work, Mr. Kourktchan told him he would accompany him to the facility where B.M. told him he stored the paperwork that proved his licence was not suspended. However, B.M. then became unreachable for over a week.
19Mr. Kourktchan testified that he did not want to have charges laid against B.M. He stated that B.M. has a family and that he is now living in a shelter.
20Constable Natalie Waters of Durham Regional Police Services testified for of the Registrar. Constable Waters testified that she pulled over the vehicle B.M. was driving as part of a R.I.D.E. program on February 15, 2018 and detected alcohol on his breath. After the breathalyzer showed an alert, she ran his licence, discovered he was a suspended driver, arrested him, and impounded the vehicle.
21Constable Waters testified that Mr. Kourktchan contacted her after she had left him a voice message. She did not make notes of her conversation. She stated that she asked him if he checked his employee's drivers' licences and he told her that he did not check B.M.'s because he seemed "like a really good guy". Mr. Kourktchan did not tell her that B.M. was not allowed to drive the impounded vehicle. She further testified that she had been advised by desk staff that B.M. and Mr. Kourktchan had gone to the police station and spoken to them but did not mention that the vehicle had been taken without consent.
Analysis:
22Mr. Kapur submitted that the evidence supports that the vehicle was not stolen; B.M. had a key to the appellant's shop and access to the vehicle, Mr. Kourktchan did not lay charges, and he did not mention to police that the vehicle was taken without consent.
23Mr. Kourktchan submitted that the impounded vehicle was stolen. His evidence is that he did not allow B.M. to drive the appellant's vehicles because B.M. had failed to provide him with a driver's licence. Further, the vehicle was taken on a night when the appellant was not operating its vehicles for business purposes.
24In order to establish that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the HTA, the appellant must prove that the vehicle was taken without the owner's express or implied consent. It is not necessary for charges to be laid to prove a vehicle was stolen.
25Mr. Kourktchan's testimony was consistent and given in a forthright manner. However, his testimony conflicts with the documentary evidence he submitted with his Notice of Appeal. He provided a list of the appellant's vehicles and the names of the drivers assigned to them to support the reduction in the appellant's capacity that the impoundment has created. That list clearly shows B.M's name as the assigned driver next to one of the appellant's vehicles. This evidence refutes Mr. Kourktchan's testimony that he did not allow B.M. to drive his vehicles because he failed to produce a driver's licence. We note that Mr. Kourktchan did not reply to this contradiction when given the opportunity to do so.
26While Mr. Kourktchan may not have given B.M. his express consent to take the impounded vehicle outside of working hours on February 15, 2018, the fact that B.M. had been provided with a key to the shop giving him access to the appellant's vehicles and the document submitted by Mr. Kourktchan which indicates that he was assigned as a driver to one of those vehicles persuades us that he had the appellant's implied consent to take impounded vehicle. We therefore find that the appellant has not proven that the vehicle was stolen in accordance with s. 50.2(3)(a) of the Act.
ISSUE 2: Will the impoundment result in exceptional hardship?
Evidence:
27Mr. Kourktchan testified that the impoundment of the appellant's vehicle is causing hardship. The appellant owns three vehicles equipped with salters. With one of these vehicles impounded, the appellant's salting capacity has been reduced by one third. He also indicated that the impounded vehicle, the newest of the appellant's vehicles, has the best salt dispersion of the three vehicles equipped with salters.
28Mr. Kourktchan has investigated alternatives to the vehicle. The impounded vehicle has been custom fitted with a snow plough and salter. He testified that he cannot rent a similarly equipped vehicle. Rather, he would have to purchase a plough and salter, have them welded to a vehicle, and wired. He stated that this process would take approximately 60 days.
29Mr. Kourktchan explained that salters are still required at this time of year. There is risk of ice forming when temperatures hover around the zero mark. When temperatures rise above zero during the day there is an increased potential for rain which freezes when temperatures later drop. He also explained that snow ploughs have created banks of snow which melt in warmer weather and then freeze. Based on weather conditions, the appellant's employees drive by the client sites to assess their condition and decide whether salting is necessary.
30The appellant's clients include a women's shelter, a not-for-profit housing complex, and a number of elderly residents. The appellant clears its clients' properties as well as the adjoining public sidewalks. Mr. Kourktchan explained that the loss of one of the three vehicles equipped with a salter means that the appellant cannot serve these clients as quickly as it could with all three vehicles operating. He estimated that it now takes the appellant 16 hours to deal with a storm instead of 12. He also noted that his staff are required to work longer hours and do some work manually. He stated that the risk, however, is to the public; the potential exposure to slip and fall accidents increases because snow clearance and salting takes considerably longer. Further, some individuals may not be able to leave their homes until the snow and ice have been cleared. He explained that in the case of the potential for ice to form after rain that the appellant cannot simply start salting early because rain would wash the salt away.
31Mr. Kourktchan testified that the appellant has continued to meet its contractual obligations since the vehicle was impounded. He has rearranged the work schedule and the assignment of personnel. The result has been that the appellant's employees have worked longer hours to complete the snow clearance and salting.
32Mr. Kourktchan also testified that he does not know if there have been any accidents since his vehicle was impounded. He explained that slip and fall accidents do not always get reported right away but to date no claims have come forward.
Analysis:
33Section 10 of O. Reg. 631/98 provides the Tribunal with the criteria the appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the appellant has an alternative to the motor vehicle. If there is no alternative to the impounded vehicle, the Tribunal must determine whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
34The Tribunal may only consider a financial or economic loss to a person if there is no alternative to the impounded vehicle, if the loss is significant or lasting and if there is loss of employment to any person if these impacts are on a person other than the suspended driver.
35Section 10(4) of the regulation requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option that could eliminate or adequately mitigate any threat or loss to the person has been considered, including using another vehicle or making arrangements to do without any vehicle during the impound period
36In this case, the impounded vehicle is one which has been custom fitted with a snow plough and salter. The evidence is that Mr. Kourktchan investigated the possibility of renting a similarly equipped vehicle and found none available. He also investigated the possibility of purchasing a plough and salter and having them fitted to another vehicle; however, this process would take longer than the period of impoundment.
37Notwithstanding the fact that he was unable to find a replacement for the impounded vehicle, Mr. Kourktchan testified that the appellant has continued to meet its contractual obligations although the process of snow clearance and ice salting takes 33% longer. His employees have continued to work; in fact, Mr. Kourktchan testified they have worked longer hours. He further testified that he is aware of no slip and fall accidents or other incidents that have taken place since the appellant has been operating two rather than three fully equipped vehicles.
38The fact that the public may be exposed to potential hazards of snow and ice for a few hours longer than was the case before the vehicle was impounded does not represent a threat to health and safety. There is no evidence of any financial or economic loss to the appellant or of any lost employment. For these reasons, we find that the appellant has not proven that the impoundment will result in exceptional hardship in accordance with s. 50.2(3)(d) of the Act.
ORDER
39Pursuant to subsection 50.2(5) of the HTA, the Tribunal confirms the impoundment of the appellant's motor vehicle, and it will remain at the impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Asad Ali Moten, Member
Released: April 3, 2018