Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
An Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8. from
The impoundment of a motor vehicle pursuant to Section 55.1 of the Act
Between:
Darin Piercey
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Harriet Lewis
Appearances:
For the Appellant: Darin Piercey, Self-represented
For the Respondent: Sanjay Kapur, Grootenboer, Agent
Heard by teleconference: June 17, 2021
REASONS FOR DECISION AND ORDER
1Darin Piercey (“the Appellant”), appeals the impoundment on May 18, 2021, of his GMC truck, (the “vehicle”), under section 55.1 of the Highway Traffic Act (“the Act”). At the time of the impoundment, the Appellant was driving his vehicle while his Ontario driver’s licence was suspended.
2The Appellant appeals on the grounds that the impoundment of his vehicle has resulted in exceptional hardship. He requires his vehicle for his construction work so he can support his family in Newfoundland.
ISSUES:
3The issue to be determined is whether the impoundment resulted in or will result in exceptional hardship.
CONCLUSION:
4On the evidence before me at the hearing, I find that the impoundment will not result in exceptional hardship as defined in s. 50.2(3)(d) of the Act and Ontario Regulation 631/98, (“the Regulation”).
LAW:
5Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
6Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
7If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.
8The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if the owner demonstrates the following:
no alternative to the impounded motor vehicle is available.
the loss will be immediate, significant and lasting.
the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
the impact of the loss,
o will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
o will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
9The Tribunal can never consider whether the impoundment will result in inconvenience to a person.
10Section 36 of the Act provides that a person whose Ontario driver’s licence is suspended shall not drive a motor vehicle in Ontario under a driver’s licence issued by any other jurisdiction during the suspension.
EVIDENCE AND ANALYSIS:
11The Respondent called as its witness, Sgt. Clinton Stibbe, the officer who stopped the Appellant and ordered that the vehicle be impounded. Sgt. Stibbe described the circumstances leading up to the impoundment. Briefly put, his practice is to make random searches of the ownership of vehicles travelling on the Gardiner Expressway in Toronto. The Appellant’s vehicle, bearing a Newfoundland licence plate, was the subject of one such search. That search resulted in Sgt. Stibbe discovering that the Appellant was the vehicle’s owner, and that his Ontario driver’s license was suspended. Although he could not stop the Appellant on that occasion, he saw him drive by again on another day, followed him to a turnoff, stopped him and impounded the vehicle.
12The Appellant’s Driver Information record was filed as part of the Respondent’s submissions. It indicated that the Appellant’s driver’s licence had been suspended in July 2018 for his failure to complete a remedial program.
13The Appellant does not dispute that he was driving with a suspended Ontario licence. He does hold a valid Newfoundland licence. He testified that his permanent residence is in Newfoundland where he lives with his partner and two children. He is an ironworker who places rebar in large construction projects and comes to the Toronto area to work for several months at a time. While in the Toronto area, he lives with a relative in Mississauga. He is assigned to construction projects throughout the region on a daily, weekly, or bi-weekly basis and requires a vehicle to get to various job sites.
14Since his vehicle has been impounded, he has been unemployed. He has completed a remedial program on-line with Safety Services Newfoundland and has provided a copy of his certificate of completion to the Tribunal and to the Ontario Ministry of Transportation. He is also taking steps to discharge outstanding fines in the hope of having his licence re-instated. When his vehicle is released and until his Ontario licence is reinstated, he has arranged to have someone drive him to job sites in his vehicle.
15The Appellant admits that he has made no effort to access his work sites using public transportation. He has never taken public transportation, is not familiar with the systems in the region and does not believe that public transport would enable him to reach the job sites on time and with what he describes as the heavy tool belt he uses for his work. He has not asked anyone to provide him with transportation to work in their vehicles.
16Because he has been unable to work during the impoundment, he has not been able to send money home to Newfoundland for the support of his family which he says is in difficult circumstances without his financial support. His partner has her own vehicle, and his truck is ordinarily used only by him for his work.
17He provided in evidence a copy of a “Disconnect Notice” from Newfoundland Power, asking that he contact them immediately to discuss “flexible payment options” to address arrears of payment for the service to their home. He understands that he must come up with a partial payment or service will be disconnected.
18It is understandable that the absence of his earnings over the period of impoundment creates a difficulty for his family. I understand why it may not be reasonable to take public transportation to his job sites. However, he testified that he had arranged for a driver for his vehicle and did not indicate any efforts to rent or borrow a vehicle for that driver during the impound period. He has also not taken any steps to ascertain whether public transportation might be a reasonable option. I therefore cannot find that the Appellant has demonstrated that he has considered “every reasonable option” available. He therefore has not met the onus required to establish exceptional hardship.
19While the financial loss of his not working is immediate, I am not satisfied that it is lasting because the evidence suggests that he will be able to resume his work when the vehicle can be released. Because his partner has her own vehicle and his evidence is that his truck is used only by him for work, I also cannot find that the impact of a loss caused by the impoundment will be upon a person who is “ordinarily transported by the motor vehicle” as is required by the Regulation. Even if he had established that he has explored and found there to be no reasonable alternative to the impounded vehicle, I cannot find that the Appellant has discharged the onus for demonstrating exceptional hardship in this case.
ORDER:
20I confirm the order of impoundment.
LICENCE APPEAL TRIBUNAL
_________________________
Harriet Lewis, Member
Released: June 28, 2021