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:
Dakota J. Clark
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Jason Davie, Paralegal
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: July 3, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on July 3, 2020 to consider an appeal filed by Dakota J. Clark (the “appellant”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) relating to the impoundment of his motor vehicle a pick-up truck.
2The appellant’s motor vehicle was impounded on June 4, 2020 as at the time of the impoundment the operator was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
3The appellant’s only ground of appeal is that the impoundment will result in exceptional hardship.
4For the reasons set out below, the appeal is dismissed and the impoundment is confirmed.
ISSUE:
5The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship to the appellant through his roofing business. The appellant does not allege exceptional hardship in his personal life.
THE LAW
6Section 50.2(3) of the Act sets out the grounds on which the Tribunal may order the Registrar to release an impounded motor vehicle: Here, we are only concerned with subsection (d);
(d) that the impoundment will result in exceptional hardship.
7Pursuant to Ontario Regulation 631/98, sections 10 (1) and (4), the appellant must demonstrate that no alternative to the impounded vehicle is available and every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including making arrangements to do without any motor vehicle during the impoundment period.
8On the facts of this appeal, if the appellant satisfies the above requirement, he must demonstrate that the loss of use of the impounded vehicle will result in a financial or economic loss and that these consequences will be “immediate, significant and lasting”. This requirement is found in section10 (3) (b) of the same regulation.
ANALYSIS
9The appellant is the owner and operator of an incorporated roofing business. The impounded vehicle is a pick-up truck owned by the appellant personally but used in the roofing business. As of the date of the impoundment it was the only vehicle used by the roofing business.
10On June 9, 2020 the vehicle was impounded for 45 days pursuant to section 50.2 of the Act as it was being driven by a suspended driver.
11As part of his appeal, the appellant submitted an affidavit that the parties agreed would constitute his evidence in chief. In that affidavit the appellant deposed:
Without my truck, I am basically out of business. I will lose any contracts that I have scheduled.
12The appellant’s cross-examination disclosed that the picture was not so dire.
13In cross-examination the appellant testified that the impounded vehicle was the only vehicle used in the business. It was used to haul tools, materials, trailers and employees to and from work sites. One trailer contains a heavy piece of equipment used to make eavestroughs and another trailer, which has a hydraulic lift, is used to remove roofing waste and debris to be transported to a disposal site.
14It was also the appellant’s testimony that his company has a substantial contract in a housing development. About one-half of the work has been completed and the remaining half is on hold due to the appellant’s inability to haul his eavestrough machine to the site. When asked about the impact of the impoundment on the contract for this job, the appellant testified that the general contractor is waiting for the result of this appeal and that “it is up in the air” as to whether another roofer will be hired to complete the job.
15In addition, the appellant’s company has eight to ten contracts to replace residential roofs. He testified that these jobs cannot be completed as they require use of the trailer that hauls waste from work sites.
16Most of these contacts were entered into prior to the impoundment. The appellant testified that these contracts are also on hold due to the impoundment. He also testified that he is waiting to figure out the vehicle situation before he starts working on these jobs. When asked if these customers are aware that the appellant’s company cannot do the work due to the impoundment, the appellant did not answer the question, instead responding that some customers are willing to wait for him but that he might lose some contracts.
17The only type of work the appellant’s company has done since the impoundment has been small repair jobs for which he has been able to utilize his mother’s Jeep to transport materials, tools and a company employee to these job sites. Since the impoundment the appellant has been using his mother’s Jeep, personally and in the business.
18The appellant testified that the Jeep is not capable of hauling either trailer, and therefore cannot be used to complete the work on the housing development or the residential roof replacements. He also testified that he cannot transport ladders with his mother’s Jeep.
19The appellant was asked in cross-examination what efforts he made to rent or lease another vehicle capable of hauling his trailers. His response was that car rental companies do not carry trucks large enough to haul his trailers, they do not have trailer hitches and do not allow rented vehicles to tow trailers. He also testified that U-Haul charges 80 cents per kilometre driven and that the housing development job is about 100 kms from his home. This would cost him a minimum of $160 each day.
20However, the appellant’s determination about renting or leasing another vehicle is not based on current inquiries. It is based on information he acquired at some unknown time in the past when he looked into leasing another vehicle from Enterprise. This evidence does not establish, on the balance of probabilities, that in June and July 2020, Enterprise does not rent trucks that have the capacity to haul the appellant’s trailers or that they will not allow their vehicles to be used to haul trailers. There are other car rental companies of which the appellant did not make any inquiries.
21Thus, the appellant has failed to meet the requirements of sub-sections 10 (1) and (4) of Ontario Regulation 631/98. He has not established that “no alternative to the impounded vehicle is available and every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss”. Nor did he provide any financial information to support his testimony that neither he nor his company can afford the daily cost to rent a U-Haul truck to tow the trailer with the eavestrough machine to the housing development work site. There was no evidence as to how many days this would be necessary, and the particulars of the impact this would have on his, or the company’s financial situation. On the basis of subsections 10 (1) and (4) this appeal fails.
22In addition, the appellant has not proven on the balance of probabilities the requirement of section10 (3)(b) of Ontario Regulation 631/98 that the loss he or his company will suffer as a result of the impoundment will be “immediate, significant and lasting”. There was no evidence as to the financial state of the company or the financial impact of the impoundment on him or his company. Contrary to his affidavit that without the truck he is “basically out of business”, as of the date of the hearing, the appellant’s company had not lost any contracts nor has he been told by any customer that if the work is not started by a specific date the customer will hire another roofing company. The fact that his company entered into more contracts after the impoundment suggests that he is not on the precipice of going out of business.
23Although it can be inferred that the appellant and/or his business will experience some financial loss arising from the impoundment, he has not established that the loss will be immediate, significant and lasting.
24As a final note, there was evidence of another truck the appellant owns that would have the capacity to haul a trailer. I accept the appellant’s evidence that this truck is not roadworthy and will require a lot of work to be put on the road. Thus, this truck is not a reasonable option to be used in place of the impounded vehicle.
25In conclusion, I find that the appellant has not satisfied the test to succeed on the basis of exceptional hardship.
ORDER
26For the reasons set out above the appeal is dismissed and the impoundment is confirmed.
LICENCE APPEAL TRIBUNAL
_______________________
Theodore Crljenica,
Vice-Chair
Released: July 15, 2020