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:
Francesco Dicamillo
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Avvy Go, Member
Appearances:
For the Appellant: Francesco DiCamillo
For the Respondent: Stella Velocci, Agent
Place and date(s) of hearing: By teleconference June 24, 2020
By teleconference
REASONS FOR DECISION AND ORDER
A. Overview
1The Appellant, Francesco DiCamillo appeals the impoundment of his vehicle on the basis that the impoundment will result in exceptional hardship.
2The Appellant’s vehicle was impounded on May 25, 2020 and a hearing was held on June 24, 2020, 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 proven that the impoundment will result in exceptional hardship. I confirm the impoundment.
B. ISSUES:
4The issue under the appeal is whether the impoundment will result in exceptional hardship.
C. EVIDENCE:
5The appellant drove his vehicle to his mechanic to check brakes and an electrical problem. The appellant left the vehicle in front of the mechanic’s house. The appellant was not present when his vehicle was impounded. The mechanic – who was in court to deal with the charges arising from the incident – was not called as a witness to testify at the appellant’s appeal.
6The appellant testified that he was advised by his mechanic that the latter was sitting inside the vehicle to work on the problem when a police officer stopped and charged him and took the vehicle away. The mechanic’s wife was sitting inside the vehicle at the time it was impounded. The police also found some prescription drug inside the vehicle which according to the mechanic belonged to his wife. The police charged the mechanic with illegal possession of drug.
7The appellant was aware that the mechanic – who is also his friend for over 30 years – has had his licence suspended. But the appellant has told the mechanic not to drive his vehicle and to the appellant’s knowledge, he has never done so.
8The appellant does not know why the mechanic’s wife was inside the vehicle at the time when the mechanic was checking the vehicle.
9The appellant owns a contracting business doing various outdoor work such as snow removing and demolition. For that, the appellant uses his trucks which he also owns. The vehicle under impoundment is the appellant’s personal vehicle. For instance, every weekend, the appellant will take his vehicle, instead of his truck to go to his campsite. It is not convenient to drive his trucks for personal use or to the campsite.
10Upon questioning by the Registrar, the appellant confirms that he has been able to continue to operate his business during the current COVID-19 pandemic, although the volume of work has gone down. The appellant also testifies that he is unable to claim the cost of impoundment from his mechanic because the latter is on disability benefits and is not in a position to cover the cost. The appellant also confirms he owns two other vehicles, but they are bigger vehicles which cannot get into the campsite and it is not economical to drive these big vehicles for his day-to-day use. The appellant further confirms that there are emergency services available in his local community. Finally, the appellant states he has missed an eye appointment because driving a truck to the appointment is not convenient. The appellant has rescheduled his appointment.
11The Registrar provided information about the mechanic’s driving record showing that his licence has been suspended for life. The Registrar also provides document confirming that the appellant owns several vehicles. The Registrar takes the position that the appellant has not established exceptional hardship and asks the Tribunal to confirm the impoundment.
D. LAW:
12Under 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.
13Subsection 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)(d) which states that the Tribunal may order the Registrar to release the motor vehicle if the impoundment will result in exceptional hardship.
14Section 10 of O. Reg. 631/98 (the “Regulation”) is very specific and sets out the criteria and factors that the Tribunal 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 the Tribunal finds that there is an alternative to the impounded vehicle, then it needs not consider any other requirements.
15if no alternative is available, then the Tribunal needs to consider whether the impoundment will result in,
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
16Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
17The appellant bears the burden of proving that he falls within one of the grounds of appeal set out in subsection 50.2(3) of the Act.
18Following 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.
E. ANALYSIS:
Whether there will be Exceptional Hardship
19I agree with the Registrar’s submission that the appellant has not established that the impoundment will result in exceptional hardship.
20As a starting point, the evidence before me confirms that the appellant owns multiple vehicles and therefore has more than one alternative to the impounded vehicle. While it may be inconvenient for the appellant to drive a large vehicle around for his personal use and to his campsite, it is nonetheless an option that is available to the appellant. Besides, the loss of convenience is not a factor that I can consider pursuant to s.10(2) of the Regulation.
21Just by virtue of having an alternative to the impounded vehicle, the appellant fails to meet the requirement of the exceptional hardship test.
22I note that the appellant has missed one eye appointment, but as he has confirmed, the appointment has already been rescheduled. Thus, the appellant has not shown that the health and safety of himself or of anyone else ordinarily transported by the impounded vehicle has been threatened; he has thus failed to meet the factors listed in s.10(1)(a) of the Regulation.
23In sum, I find there is an alternative to the impounded vehicle available, and the appellant has not established that he will suffer exceptional hardship as the term is defined under the Act.
ORDER:
24For 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.
LICENCE APPEAL TRIBUNAL
____________________________ Avvy Go, Member
Released: July 02, 2020