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:
Daniel Shattuck
Appellant
- and -
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Daniel Shattuck, Self-Represented
For the Respondent: Sanjay Kapur, Agent
Date of Teleconference Hearing: April 29, 2021
Overview
1Daniel Shattuck (“appellant”) appeals the impoundment of his 2008 Toyota Highlander (“vehicle”). It was impounded on April 1, 2021 for 45 days when it was discovered being driven by a driver (not the appellant) whose driver’s licence is under suspension for an earlier Criminal Code offence.
2The appellant appeals the impoundment on the ground that the impoundment will result in exceptional hardship.
ISSUE
3Should the Registrar of Motor Vehicles (‘Registrar”) be ordered to release the appellant’s vehicle on the basis that the impoundment will result in exceptional hardship?
DECISION
4I conclude that the appellant has not established that the impoundment will result in “exceptional hardship” within the meaning of that term under the Highway Traffic Act (“Act”) and regulations and I confirm the impoundment of the appellant’s vehicle.
THE LAW
5Under the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a driver whose licence was under suspension for a variety of reasons, including certain previous Criminal Code offences.
6The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
7The Act allows only five specified grounds on which an owner may appeal, including “exceptional hardship”, the ground the appellant relies on in this case. The onus is on the appellant to establish the facts that support the ground of appeal on a balance of probabilities.
8A regulation made under the Act (Ontario Regulation 631/98 (“Regulation”), sets out the matters that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship:
a. The Tribunal must first consider whether an alternative to the impounded vehicle is available.
b. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
c. The Tribunal shall not consider financial/economic loss or loss of employment/employment opportunity unless the owner demonstrates that:
i. No alternative to the impounded vehicle is available,
ii. The loss will be immediate, significant and lasting,
iii. The impact of the loss will be on a person ordinarily transported by the vehicle, and
iv. The impact of the loss will be on a person other than the suspended driver.
d. The regulation also specifies that in order to show that no alternative to the impounded vehicle is available, the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
FACTS and ANALYSIS
(a)The Impoundment
9The Registrar presented evidence which established that:
the appellant is the registered owner of the impounded vehicle.
On April 1, 2021, police discovered it being driven by Trevor Brown.
Mr. Brown’s driver’s licence was under suspension. It had been suspended in 2012 as a result of a Criminal Code offence involving drinking and driving and has remained suspended because he failed to complete a remedial program.
10The police impounded the vehicle under s. 55.1 of the Act. The vehicle will be released from impoundment on May 16, 2021.
(b) The Appellant’s Circumstances
11The appellant testified that he lives in a suburb of Peterborough, Ontario with his wife and their 18-month old child. There has been some marital tension recently and the appellant’s wife and child are currently staying in the home of her parents in Marmora, Ontario, about an hour’s drive from Peterborough.
12The impounded vehicle is the family’s only vehicle. It is used as both a family vehicle and as a work vehicle used in connection with the appellant’s business. The appellant removes mould from buildings and the vehicle, together with a towed trailer, are used to transport crew members, equipment and materials to work sites and haul away debris. Most of the appellant’s business takes place in cottage country.
13According to the appellant, the impoundment has resulted in exceptional hardship in two ways. Firstly, it prevents him from having access to his infant daughter presently staying with her mother and grandparents in Marmora. There is no public transportation from Peterborough to Marmora and the appellant’s wife does not own a car or drive. Therefore, the appellant needs a vehicle to visit with his daughter. The appellant’s driver’s licence is subject to a condition that prohibits him from driving a vehicle without an interlock device, so it is difficult to borrow or rent a vehicle. In any case he states that he does not presently have the credit or the funds to do so.
14Secondly, the vehicle is essential to the appellant’s business and without it the appellant states that he is unable to carry on business. The appellant testified that he started his present business in December 2020 after he and a previous business partner wound up their business.
15The appellant completed four or five jobs in March 2021, but three jobs scheduled in April 2021 had to be cancelled because of the impoundment. Most of his work requires some demolition and the debris is hauled away with a trailer hitched to the impounded vehicle. The appellant states that without the impounded vehicle, he has had to turn the work down - he cannot get to the work sites or haul away the debris. He received several calls from potential customers in April but he has had to turn down or refer the work elsewhere because he lacked a vehicle.
16The appellant testified that both he and his wife have been receiving COVID related benefits from the federal government which amount to about $3800/month.
(b) Exceptional Hardship
17The regulation governing the determination of exceptional hardship is quite specific and limiting. The Regulation requires that the Tribunal consider whether no alternative to the impounded vehicle is available and, if no alternative is available, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the motor vehicle.
18Leaving aside for a moment the issue of an alternative to the impounded vehicle, there is no evidence that the impoundment has resulted in a threat to the health and safety of anyone ordinarily transported by the vehicle. The appellant states that the impoundment has prevented him from accessing his infant daughter in Marmora and, in his opinion, that separation affects his daughter’s sense of security and happiness and threatens her health or safety.
19Although I agree that the separation is no doubt difficult for all concerned, the evidence indicates that the infant is healthy, has no significant health concerns, and is being adequately cared for by her mother in her grandparent’s home. I conclude that evidence is insufficient to establish that the impoundment has resulted in any significant threat to the health and safety of the appellant’s infant daughter.
20Turning to the issue of an alternative to the vehicle, the regulation prohibits the Tribunal from considering whether the impoundment will result in financial/economic loss or loss of employment/employment opportunities unless the appellant demonstrates that no alternative to the impounded vehicle is available.
21The onus is on the appellant to demonstrate there is no alternative and the regulation explicitly states that to establish 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.
22In this case I conclude that the appellant has not demonstrated that he has considered and inquired into every reasonable option to continue his business without the impounded vehicle, such as renting a disposal bin to remove debris, or hiring a driver with a vehicle capable of hauling the trailer and transporting the crew and equipment to work sites. When those options were suggested to the appellant at the hearing, he stated that has his financial resources would allow him pursue them. However, it was apparent that the appellant had not seriously considered those options or made inquiries into the cost or financial arrangements that may facilitate the continuation of the business without the impounded vehicle.
23Such arrangements would likely be more inconvenient and costly but in my view they are reasonable options that the appellant was required to consider and inquire into before the Tribunal can conclude that the appellant has demonstrated that there is no alternative to the impounded vehicle.
24In summary, the appellant has not demonstrated that there is no alternative to he impounded vehicle and I have therefore ordered that be impoundment be confirmed.
ORDER
25Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TIRBUNAL
Stephen Scharbach, Member
Released: May 13, 2021