Date: 2019-07-23

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:

Halton Air Inc.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Patricia Conway, Member

APPEARANCES:

For the Appellant: Jason Lee, Owner and Operator

For the Respondent: Sanjay Kapur, Agent

Court Reporter: Christopher Delic

Place and Date of Hearing: Teleconference

July 12, 2019

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1The appellant is the owner of a 2012 Nissan NNV, a vehicle used in the operation of its business, the installation and servicing of air conditioning and heating systems. On June 14, 2019 the vehicle was stopped by the Ontario Provincial Police (OPP). It was being driven by Brian Napper, whose licence was suspended. The vehicle was impounded for 45 days pursuant to section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the Act).

2Jason Lee is the owner and sole operator of the appellant company. He told the Tribunal that during the summer months he sometimes needs help to keep up with the work he has. A friend recommended Brian Napper to him. On June 14, 2019 Mr. Lee met Mr. Napper and took him to a job site “on probation”. Mr. Lee had not yet decided whether to hire him. Mr. Lee asked Mr. Napper to use the vehicle to pick up some materials needed for the job. Mr. Lee told the Tribunal that since he had not yet decided to hire Mr. Napper, he had not yet obtained an abstract of his driving record.

3The appellant appealed the impoundment to this Tribunal on the basis that the impoundment will result in exceptional hardship. The appellant asks the Tribunal to order the Registrar to release the vehicle.

4I find that the appellant has failed to prove on a balance of probabilities that the impoundment will result in exceptional hardship The Registrar’s order is confirmed.

B. LAW

5Under the Act, where a police officer is satisfied that a person is driving while his/her driver’s licence is suspended, the officer is required to detain and impound the vehicle. Section 55.1 of the Act sets out the scope of the authority and the impound period. The impound period is 45 days where, as in this case, there has been no previous impoundment in the last two years.

6Subsection 50.2(3) of the Act lists four grounds on which an owner may appeal an impoundment of their motor vehicle, 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.

7Section 10 of Ontario Regulation 631/98 sets out several criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impoundment period.

8If the appellant establishes that there is no alternative to the impounded vehicle then (and only then) I must go on to a further consideration: whether the impoundment of the vehicle will result in exceptional hardship The Regulation s, 10 enumerates several grounds on which exceptional hardship can be established. In this case, where the vehicle is used for business purposes, the relevant provision to consider is economic or financial loss.

9The Regulation states that to constitute exceptional hardship, the economic or financial loss suffered must be immediate, significant and lasting. The impact of the loss must be on the owner of the vehicle, provided always that the owner of the vehicle was not the person driving when the vehicle was impounded.

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

C. evidence and ANALYSIS

Is there an alternative to the impounded vehicle?

11Mr. Lee gave evidence that he has customized the impounded vehicle to some extent by installing shelves to hold his tools and equipment. When his job involves installing a heating or air conditioning unit, the unit he is installing can thus fit into the middle of the vehicle. Mr. Lee said that he tried renting a U Haul but found it was not able to hold both his tools and equipment and the unit to be installed. He was able to complete servicing jobs with the U Haul but was not able to carry a unit so that he could not do jobs requiring the installation of a heating or air conditioning unit without two trips: the first carrying tools and equipment to the job site; then emptying the vehicle and going to his supplier to pick up the unit to be installed, and returning to the job site. Mr. Lee assessed that this would be too time consuming and would take an unacceptably long time for his customer.

12Mr. Lee also stated that a cube van might have suited his needs, but when he made enquiries, there were none available as it was the end of the month when many people move. He has not made a further attempt to rent a cube van.

13Mr. Lee admitted that there are two cars in the household in addition to the impounded vehicle. He stated that neither of these was suitable. His wife works and needs one. The other could not hold tools, equipment and the unit to be installed. They would also be too heavy for his car to carry. He was asked if he had considered renting or purchasing a trailer to attach to the back of his car and admitted that he had not. He stated that this might or might not satisfy his needs and stated that he had not thought to investigate it as a possible alternative.

14He stated that he was managing by subcontracting the work out to other HVAC companies. He remains the “face” of the company and attends at the job sites to ensure client service and satisfaction and retain his contact with his clients, so as not to lose their business. He says, however that the result is that he is making no money because he is just charging an amount to the client and paying that amount to the subcontractor. He said that he has put off as many jobs as he can until after the impoundment period ends and is only doing the work that cannot wait.

15Not surprisingly, Mr. Lee is concerned about the loss of revenue to his business. He candidly admitted that the business has a line of credit, and that between that and his wife’s income from her employment, they are managing, and he expects that his business will survive and recover despite the impoundment.

16I conclude that Mr. Lee has not made all reasonable efforts to mitigate the loss of use of the impounded vehicle. The U Haul alternative may not have been ideal, but he was able to do some jobs, and he did not explore other ways of getting both tools and equipment and units to job sites. For example, he could have rented a larger U Haul vehicle. I also note that in the Notice of Appeal, the appellant states that the problem with renting a vehicle is that it is too expensive, not that it is not suitable.

17Similarly, Mr. Lee said that a cube van might serve his purpose, yet he only made one attempt to rent one, at the end of the month when such vehicles are most in demand. He could have tried again to rent one at the beginning of July. And again, he did not consider renting or buying a trailer to connect to his own car (or the smaller U Haul) to carry the tools, equipment and heating or cooling units.

18Mr. Lee told the Tribunal that he chose the alternative he is using, subcontracting out the work, because he wants to ensure that his clients are satisfied with the quality of work done and the time the job takes. It is understandable and probably wise that he has made this choice. It enables him to oversee the work, thus ensuring its quality, to ensure the work is done in a timely way, and to ensure that he maintains client contact and continuity.

19Since I find that there is are reasonable alternatives to the impounded vehicle, the issue of whether the financial loss suffered is immediate, significant and lasting does not arise.

D. ORDER

20For the reasons set out above, I confirm the order of the Registrar impounding the vehicle.