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
Between:
Highend Granite Installers Inc.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Mary Ann Spencer, Member
Appearances:
For the Appellant: Ratanjot Pannu, Agent
For the Respondent: Sanjay Kapur, Agent
Place and date of hearing: By teleconference
March 27, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1A hearing was held on March 23, 2018 by teleconference, to consider the appeal of Highend Granite Installers 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 solely owned by Gurpal Singh Pannu. On February 14, 2018, one of the appellant's vehicles was stopped by police while it was being driven by Mr. Pannu, a suspended driver. A Notice of Impoundment was issued for a period of 45 days.
3The appellant appeals the impoundment on the basis that the loss of the impounded vehicle will result in exceptional hardship. The impounded vehicle is specially equipped to transport granite counters which the appellant is in the business of installing. The appellant's agent submits that there is no viable alternative to this vehicle and because the appellant has been unable to accept jobs, it has suffered a financial loss.
4For the reasons set out below, I find that the loss of the impounded vehicle does not result in exceptional hardship. Therefore, I confirm the impoundment.
B. PRELIMINARY MATTERS
5Ratanjot Pannu, the spouse of Gurpal Singh Pannu, joined the teleconference hearing to represent the appellant and advised that Mr. Pannu was not available to participate. The Registrar's representative questioned whether Ms. Pannu held any position in the appellant's company. Ms. Pannu advised that she had signing authority and did the appellant's banking. She further advised that she represented the appellant at the case conference in this matter but was not told that a Declaration of Representation needed to be submitted to the Tribunal. I allowed Ms. Pannu to represent and testify on behalf of the appellant and the hearing proceeded.
C. BACKGROUND
6The impounded vehicle is a 2011 Ford COF pickup truck. The bed of the truck is 8 feet long and has been equipped with A frames to support the granite counters that the appellant installs. The appellant has two other vehicles registered to it: a 2007 Ford COF pick up and a 2005 BMW BX5.
7The appellant is in the business of installing granite counter tops. It accepts individual jobs but also has larger contracts with builders to install counters in new housing developments.
8The suspended driver in this case is Gurpal Singh Pannu, the sole owner of the appellant. Mr. Pannu is both a suspended and an unlicensed driver. The certified copy of his driver's licence record submitted by the Registrar shows that he has been suspended under the Criminal Code until May 2, 2021 for driving while disqualified. On February 14, 2015, the impounded vehicle was being driven by Mr. Pannu. It was stopped by police at 8:48 p.m. and the vehicle was impounded for 45 days.
D. ISSUE
9The issue to be considered in this appeal is whether the impoundment of the appellant's vehicle results in exceptional hardship, which the appellant must prove on a balance of probabilities.
E. 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. I have considered the Appellant's appeal 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.
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.
F. EVIDENCE AND ANALYSIS:
Evidence:
13Ms. Pannu testified that the impounded vehicle is needed to transport the granite counters which the appellant installs. The impounded vehicle has an 8-foot bed and has an A frame rack installed to hold the counters. Without the truck, the appellant has not been able to accept all of the jobs it has been offered. Ms. Pannu stated that before the impoundment, the appellant installed two to three counters on average each day. Since the impoundment, the appellant has been able to install only one or two counters every other day. She also testified that because the work has not been steady, one of the two helpers her husband employs has resigned.
14Ms. Pannu explained that the appellant does individual installations, some of which her husband's friends refer to him, as well as works on large contracts. She testified that her husband has been avoiding speaking to a large developer about a contract to install counters in a subdivision because he could not currently perform the work. However, she initially indicated that this work would take place in May or June of 2018. Asked how the impoundment which is scheduled to end on March 27, 2018 could impact this contract, Ms. Pannu amended her testimony to say she did not know exactly when this work would happen.
15Ms. Pannu further testified that the appellant attempted but was unable to rent a vehicle to replace the impounded vehicle because a rental vehicle could not be insured to carry the tools the appellant must transport.
16The appellant owns two other vehicles. Ms. Pannu testified that until May, 2017, the appellant used a 2007 Ford pick-up truck to transport granite counters but this vehicle requires repair and is now not reliable enough to take to jobs. She stated that her husband made inquiries a year ago with respect to repairing the vehicle but was told that the repairs were not worth doing at their estimated cost at that time of $2,000. The vehicle has not been taken to a mechanic for an estimate of the cost of repair more recently. Asked if the A frame on the impounded vehicle could be fitted to this vehicle, Ms. Pannu indicated that it could.
17Ms. Pannu explained that since the impoundment, the appellant has managed to continue with some work. Her husband has had friends deliver the granite counters to work sites for him. He has also subcontracted some of his jobs to his friends in order not to lose contracts. She further testified that she has been setting money aside to pay the costs of the impoundment and intends to collect the vehicle when it is released so that the appellant's work can "get back to normal".
Analysis:
18Section 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. The Tribunal may only consider a financial, economic or employment loss to a person if there is no alternative to the impounded vehicle, if the loss is significant or lasting and if the impact of the loss is on a person ordinarily transported by the vehicle who is not the suspended driver.
19Section 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 has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period
20The evidence is that the appellant has made some efforts to find a replacement for the impounded vehicle by enquiring about the availability of a rental vehicle. However, those efforts have not included having a recent mechanic's assessment done with respect to the cost of repairs on the appellant's 2007 pick-up truck, which was in use until May, 2017. Ms. Pannu agreed that the A frame installed on the impounded vehicle could be installed on the 2007 pick-up. Based on Ms. Pannu's evidence that having the 2007 vehicle repaired was not "worth it", I must conclude that the cost of repairing this vehicle, estimated to be $2,000 in 2017, would exceed any income loss the appellant would incur as a result of the impoundment.
21The evidence is that not only has the appellant not fully investigated the possibility of repairing its 2007 vehicle, but it has managed, with the assistance of Mr. Pannu's friends, to deliver counters and maintain some of its jobs. I therefore find that the appellant has not proven that there is no alternative to the impounded vehicle. Therefore, the appellant's appeal must fail.
22I note that even if the appellant had proven there was no alternative to the impounded vehicle, there is no evidence that it has incurred a loss which is either significant or lasting. No estimate of the income the appellant has lost was provided. I do not doubt Ms. Pannu's testimony that the appellant has lost some income since the vehicle was impounded. However, in addition to the evidence that the appellant chose not to repair its 2007 vehicle based on cost, Ms. Pannu's initial evidence was that a large contract the appellant anticipates receiving would be fulfilled after the impoundment ends. Ms. Pannu testified the work from this contract would take place in May or June of 2018. It was only when asked why that contract was at risk when the impoundment ended on March 27, 2018 that Ms. Pannu indicated that she was uncertain of when the work would take place.
23Finally, I find that that there is no exceptional hardship because the impact of the loss incurred by the appellant is actually on the suspended driver who is the sole owner of the appellant in this case.
24The appellant has not established that there is no alternative to the impounded vehicle. For this reason, I find that the appellant has not proven exceptional hardship in accordance with s. 50.2(3)(d) of the Act and s. 10 of O. Reg. 631/98.
ORDER
Pursuant 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
Released: April 5, 2018