Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
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:
1830246 Ontario Inc. o/a McMullen’s Management
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Derek McMullen
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: October 25, 2021
REASONS FOR DECISION AND ORDER
A. background:
1A teleconference hearing was held on October 25, 2021 to consider the appellant’s appeal of the impoundment of its company truck (“vehicle”) on October 1, 2021 for 45 days, until November 13, 2021.
2The appellant submits that the impoundment will result in exceptional hardship because the vehicle is needed for the appellant’s business providing service and maintenance to cottages (“the business”).
B. ISSUE:
3The issue to be determined is whether the impoundment will result in exceptional hardship.
C. CONCLUSION:
4I find that the appellant’s evidence fails to support a finding that the impoundment will result in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.
Will the impoundment result in exceptional hardship?
7I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.
8Section 10 of O. Reg. 631/98 (the “Regulation”) 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, 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 in order 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 impound period.
9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must 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.
10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The evidence before me is clear that the licence of the driver was suspended at the time the vehicle was impounded. The appellant did not contest this.
13Derek McMullen, the President and owner of the appellant, testified that autumn is one of the busiest times of year for the business because cottage properties must be cleaned, repaired and generally readied for the winter season. The business has three vehicles, one driven by Mr. McMullen and the other two driven by two employees. The employees need their respective trucks to drive to the cottages where their work is done with tools, equipment and supplies. Because one of the vehicles has been impounded, the appellant is unable to service its customers as usual, unable to hire new employees because there is no vehicle for them to drive, and the business is losing time and money. Mr. McMullen has to pick up the appellant’s employee who was driving the impounded vehicle, together with materials and tools for that employee’s job and then drive him to his work site. Then Mr. McMullen drives to his own work site with the materials and tools for his work site. Mr. McMullen’s work is interrupted later in the day by having to pick up that employee and take him to a different work site when the employee is finished at his work site.
14Because the cottages are some distance away from each other, Mr. McMullen, has to drive the employee who usually drives the impounded vehicle to the employee’s work sites which takes many hours out of Mr. McMullen’s day. The result is that Mr. McMullen himself is working longer hours including weekends, the revenue of the business has gone down, he cannot hire another employee because the business is short one vehicle and he is concerned that he will be unable to get all of the cottages ready for winter before the freezing weather.
15Although Mr. McMullen admitted that the truck he drives in the business is rented, he testified that he did not consider renting a vehicle to replace the impounded vehicle because of lack of availability and concerns about damage to a rented vehicle.
16I find that the appellant has alternatives to the impounded vehicle available to it during the impoundment period based on the testimony of Mr. McMullen. The appellant has two other vehicles available to it during the impoundment period and Mr. McMullen, by working longer hours has been able to fulfill at least some of the appellant’s business commitments.
17Further, the law requires that the appellant must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to it, including using another vehicle and making arrangements to do without the vehicle during the impound period. Mr. McMullen has not adequately considered the option of renting another vehicle temporarily to replace the impounded vehicle. The vehicle Mr. McMullen drives for the business is rented and any concerns about availability and damage have not prevented this.
18As the appellant had an alternative to the impounded vehicle, I am unable to consider the appellant’s submissions related to financial or economic loss.
19I therefore find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
20Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Released: October 29, 2021
____________________________
Avril A. Farlam, Vice-Chair