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: 2019-12-04

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

Dimcon Inc.

and

Appellant

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

PANEL: Avvy Go, Member

APPEARANCES:

For the Applicant: Katerina Savenko, Agent

For the Respondent: Sanjay Kapur, Agent

HEARD: By teleconference, November 25, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, Dimcon Inc., appeals the impoundment of its 2019 BMW passenger vehicle (the “vehicle”) on the basis that it has exercised due diligence to determine the licence of the driver was not under suspension and that the impoundment will result in exceptional hardship.

2The Appellant’s vehicle was impounded on November 1, 2019 and a hearing was held on November 25, 2019, 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”).

3I find that the Appellant has not exercised due diligence and the Appellant has not proven that the impoundment will result in exceptional hardship. I confirm the impoundment.

ISSUES:

4The issues under the appeal are as follow:

a. Whether the appellant exercised due diligence in attempting to determine that the licence of the driver of the vehicle was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1) of the HTA, at the time of the impoundment; or

b. Whether the impoundment result in exceptional hardship.

EVIDENCE:

5The owner of the vehicle is a company, Dimcon Inc. that produces and installs metal panels. The sole owner and director of Dimcon Inc., Mr. Dimitriy Smetanin, filed the appeal to the Tribunal. The agent representing the company at the hearing, Ms. Katerina Savenko, is the office manager of the company.

6Dimcon Inc. owns a number of trucks which it uses for the company’s operation. The vehicle which was impounded is used by Mr. Smetanin to meet with customers, to negotiate contracts, and to attend to construction sites if there are issues that he has to attend to.

7Ms. Savenko gave evidence with respect to the circumstances leading to the impoundment. The company hired the driver in question Ms. Ivanna Andrusyak sometime in May, 2019 as a junior accountant. At the time when Ms. Andrusyak was hired, she provided a Temporary G1 driver licence which was valid effective February 7, 2019 until May 8, 2019. The licence did not stipulate the condition that the driver could only operate vehicles equipped with an ignition interlock device. In any event, Ms. Andrusyak was not hired as a driver.

8On November 1, 2019, Mr. Smetanin asked Ms. Andrusyak to pick up the vehicle, drop him off to his appointment, and then drive the vehicle to the company. Because the sticker on the vehicle had expired, Ms. Andrusyak was stopped by the police after she dropped off Mr. Smetanin. The police checked into Ms. Andrusyak’s licence and found out that her licence has been suspended until November 6, 2019 due to unpaid fines. Ms. Andrusyak’s licence was initially suspended in 2014 due to impaired driving, and then in 2016 for driving while disqualified. The police impounded the vehicle, and they also charged Ms. Andrusyak under the Criminal Code for driving while disqualified for not having an ignition interlock device in her vehicle. The police later amended the criminal charge to a provincial offence under the HTA.

9The appeal is based on two grounds. With respect to the issue of due diligence, Ms. Savenko stated that the company had exercised due diligence when they hired Ms. Andrusyak by checking her temporary licence, even though she was not hired as a driver. Ms. Savenko said that Ms. Andrusyak later provided the company with her G2 licence on March 7, 2019, which also did not show any condition requiring an ignition interlock. The only condition attached to her G1 temporary licence was the requirement to use corrective lens. Having seen her licence, the company had no reason to believe that Ms. Andrusyak’s licence was subject to any condition.

10Ms. Savenko also provided a copy of a car rental agreement showing that Ms. Andrusyak was able to rent a car while her licence was supposedly subject to the ignition condition. If the car rental company was not able to find out any problem with Ms. Andrusyak’s licence, then the Registrar should not impose a higher standard on the Appellant to check their employee’s licence, argued Ms. Savenko. She also submitted that the Ministry of Transportation made a mistake in issuing a licence to Ms. Andrusyak. As such Ms. Savenko submitted that the company had exercised due diligence.

11Upon questioning by the Registrar, Ms. Savenko acknowledged she was aware of the “Driving Abstract” provided by the Ministry of Transportation which provides information about a person’s driving record. However, she said that the Appellant would not request the driving abstract for an employee in a non-driving position. Ms. Savenko also said that they do not hire any driver per se, but their employees would from time to time drive the company vehicles to the construction sites. However, for the employees who work on operations and construction, the company would submit their documents, including their driver’s licence to the WSIB. In Ms. Andrusyak’s case, since she was not hired for operations, her information was never submitted to the WSIB.

Exceptional Hardship

12With respect to the issue of exceptional hardship, Ms. Savenko explained that the company has about 15 employees in total. It has over $1 million in revenue on an annual basis. The company has to make sure that its employees are paid. The company earns an income by getting contracts. When they get a contract, they are paid 20% upfront. The company has to hire people and pay them when they get a contract but will only be paid in full when the contract is completed.

13As a result of the impoundment, the owner Mr. Smetanin has to rely on Uber and some other means for transportation when he goes to meet with customers. He cannot use company trucks that are needed for operations, and it would also not be good for customer relationship building for Mr. Smetanin to show up in a truck, as opposed to a nicer vehicle. The company has lost one tender since the impoundment because Mr. Smetanin was unable to meet with the customer in Cambridge, after having to attend an urgent matter in another city using the company truck.

14Under cross examination by the Registrar, Ms. Savenko confirmed that the Appellant is still in business and is still hiring new employees.

15The Registrar provided information about Ms. Andrusyak’s driving record which clearly indicated that her licence was suspended for impaired driving and related issues. The Appellant did not provide a copy of the G2 licence of the driver and had asked the Registrar to provide it. The Registrar explained that due to privacy concerns, it would not be able to obtain a copy of Ms. Andrusyak’s G2 licence.

16The Registrar submitted it is not credible that the Ministry would have issued a G2 licence to Ms. Andrusyak in this case. As the Registrar explained, because Ms. Andrusyak’s licence had been suspended for over three years, her licence was no longer in good standing and she would have to apply for a new G1 licence, which she did on February 7, 2019. The condition for the ignition interlock only kicked in when she re-applied for the licence on that day. The computer system of the Ministry normally takes one day for the information about the driver’s driving condition to kick in. Ms. Andrusyak’s driving condition would therefore appear on her new G1 record the day after it was issued.

17Under these circumstances, the Registrar submitted that it was not credible that Ms. Andrusyak would have gotten a G2 licence without the interlock condition attached. When the police stopped her, her G2 would have shown the interlock condition. It is also not credible that Ms. Andrusyak herself was unaware of having this condition attached to her licence.

LAW:

18Under 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.

19Subsection 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 s. 50.2(3)(c) or (d) which states that the Tribunal may order the Registrar to release the motor vehicle where (c):

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 subject to the condition described in paragraph 2 of subsection 55.1 (1); or

(d) that the impoundment will result in exceptional hardship.

20Section 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.

21Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

22The 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.

23Following 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.

ANALYSIS:

Whether the Appellant has Exercised Due Diligence

24I will start by addressing the Appellant’s argument that it has exercised due diligence in attempting to determine the licence of Ms. Andrusyak was not under suspension.

25I note first of all, that we do not have any evidence with respect to what transpired on the day in question, when Mr. Smetanin asked Ms. Andrusyak to take the company car. Mr. Smetanin did not testify and Ms. Savenko was not present at the time. While Ms. Andrusyak did provide a statement, it did not provide any details about what she may have told Mr. Smetanin when he asked her to drive.

26Contrary to what Ms. Savenko had argued, the law does not impose a higher standard on a corporation to prove their case in an impoundment appeal. But as the Tribunal held in 10719 v. Registrar of Motor Vehicles, 2017 ONLAT-MVIA, the level of inquiry and action required to constitute due diligence depends on the nature of the relationship between the owner and the driver, as well as on the particular situation.

27In this case, the driver is an employee of the owner of the vehicle. While she was not hired on as a driver, the Appellant did require her to provide a copy of her licence, which in May 2019, was a temporary G1 licence that was set to expire on May 8, 2019. The Appellant never provided the date on which the driver was first hired nor confirmed whether it was before or after May 8, 2019.

28As the manager of the company, Ms. Savenko is aware of tools available to the company had it wished to update Ms. Andrusyak’s driving record since they hired her. Whether or not Ms. Savenko was hired on as a driver, is not relevant, because she was asked to drive for the company on the day in question. Besides, we have no evidence as to whether Mr. Smetanin made any inquiry about Ms. Andrusyak’s driver’s licence before assigning her the role to be the driver for the day.

29While the Appellant claims they have seen Ms. Andrusyak’s G2 licence and may have a copy of it at the office, the fact that it has not submitted the G2 licence calls into question the credibility of that evidence. I find it more credible that given Ms. Andrusyak’s long history of driving suspension, the Ministry would not have issued her a G2 licence without any ignition condition attached.

30Based on the above, I therefore find the Appellant has not exercised due diligence.

Whether there will be Exceptional Hardship

31The Registrar submitted that the exceptional hardship clause does not apply to corporations. The Registrar did not provide any case law on this point.

32However, I do agree with the Registrar’s submission that the Appellant has not established that the impoundment will result in exceptional hardship.

33As a starting point, I note that there is an alternative available to the company. I appreciate why Mr. Smetanin does not want to show up in a truck when he meets with customers, the evidence does indicate that he has used Uber on those occasions. Further, as a company which is still in operation, it could lease or rent a vehicle for Mr. Smetanin’s use. The Appellant has not provided any explanation as to why renting or leasing is not an available option.

34Even if there were no alternative vehicles available, the Appellant has not demonstrated that there is hardship. The company may have lost one tender, which may or may not have resulted from the impoundment, but it is still in operation and is still hiring new employees. While it may have a cash flow issue, the Appellant has not proven that the cash flow issue is caused by the impoundment, as opposed to the industry practice that requires the Appellant to absorb much of the production cost up front.

35In sum, I find there is an alternative to the impounded vehicle available, and the Appellant has not established that it will suffer exceptional hardship as the term is defined under the Act.

ORDER:

36For 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.