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:
Martin Ortiz Flores
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Martin Ortiz Flores, Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: September 14, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Martin Ortiz Flores (the “appellant”), appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on August 9, 2021. At the time of the impoundment, the appellant was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that the impoundment will cause exceptional hardship.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUE TO BE DETERMINED
4The issue to be determined in this appeal is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
EVIDENCE AND ANALYSIS
The Impoundment
5The respondent submitted documentary evidence which establishes that:
a) the appellant is the registered owner of the impounded vehicle;
b) on August 9, 2021, the police discovered the impounded vehicle being driven by the appellant; and
c) the appellant’s licence was under suspension as the result of a criminal conviction relating to impaired driving at the time it was detained for the purpose of impoundment.
6The evidence at the hearing was that the appellant is a roofing subcontractor. He typically works roofing houses with a crew of four or five roofers that he employs. The impounded vehicle is a cargo van which the appellant uses to transport himself, his employees, and their roofing equipment, to and from job sites. Since his licence was suspended on March 31, 2021 for impaired driving, the appellant designated one member of his crew to do the driving.
7On the day the vehicle was impounded, the appellant and his crew had been working. At the end of the day, the crew member who was supposed to drive the vehicle from the job site felt ill and said that he could not drive. The appellant decided to drive the vehicle himself, was stopped by the police, and the vehicle was impounded for a period of 45 days.
Exceptional Hardship
8Section 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.
9Subsection 10(1) of the Regulation 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.
10If the owner fails to prove that no alternative to the impounded vehicle is available, then his appeal under s. 50.2(3)(d) must fail. Only where an owner has established that there is no alternative available is the Tribunal able to consider whether the appellant may rely on exceptional hardship as a ground upon which an impoundment may be appealed.
11The evidence presented at the hearing demonstrates that the appellant had alternatives to the impounded vehicle available to him and his appeal under s. 50.2(3)(d) of the Act must fail as a result.
12The appellant testified that, after the impoundment his sister-in-law rented a cargo van for the appellant’s use in his roofing business. He will have use of the rented van until the end of the period of impoundment and has been using it to continue his business. The appellant states that the impounded vehicle has seating for five people and that the rented van can only seat two. He says that this has caused problems for him since he cannot transport a full crew to job sites and must make do with a crew of two. He is unable to complete his roofing jobs as quickly as he did before because of this.
13I find that the appellant has not shown that the rented van is not an adequate alternative to the impounded vehicle. The appellant selected the van that was to be rented and, if he needed a van with more seats, then he should have selected a van with more seats. Further, the appellant did not present evidence that using a smaller crew for the period of impounded will have any significant impact on the profitability of his roofing business or that it will result in any loss of work in the present or in the future so as to make the use of the rented van an unsatisfactory alternative to the impounded vehicle.
14The appellant testified that the roofers that he usually employs have all found other roofing work and will likely return to his crew once the impoundment ends.
15With respect to activities outside of work resulting from the impoundment, the appellant stated that he lives with his wife and his young son, who is autistic. The appellant’s wife does not have a driver’s licence and so the appellant is the only driver in the family. The appellant owns a 2017 Ford SUV in addition to the van that was impounded. The Ford is used for non-work activities although it has not been driven since the appellant’s licence was suspended. The Ford is mechanically fit to drive.
16The appellant’s family is currently making use of public transit for their transportation needs including taking the appellant’s son to his therapy appointments, shopping, and other requirements.
17The evidence shows that the appellant does have an alternative to the impounded vehicle for non-work activities, being the Ford motor vehicle. That this vehicle is currently not being used has nothing to do with the impoundment. Neither the appellant nor his wife currently has a driver’s licence and the fact that the appellant’s van has been impounded has had no impact on his family’s transportation needs.
18The appellant has failed to show that no reasonable alternative to the impounded vehicle was available to him. He has a rented vehicle that he uses for work and he owns another vehicle that is available for his personal activities, and those of his family. The appellant and his family have accessed public transportation as necessary since the appellant’s licence was suspended and this has not changed since the impoundment.
19Given that the appellant has failed to show that there is no alternative to the impounded vehicle available to him, I need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in some inconvenience, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.
ORDER
20For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg,
Member
RELEASED: September 21, 2021