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:
Sonocast Inc.
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Ibitoye Olakunle, President, Sonocast Inc.
For the Respondent: Leila Pereira, Agent
Date of Teleconference Hearing:
December 09, 2022
Overview
1Sonocast Inc. (“appellant”) appeals the impoundment of its 2014 Dodge Caravan (“vehicle”). It was impounded on November 8, 2022, when police discovered it being driven by a Sonocast employee whose licence was under suspension due to Criminal Code convictions for drinking and driving and driving while disqualified. The vehicle was impounded for 45 days as required under the Highway Traffic Act (“Act”).
2The appellant’s sole ground of appeal is that the impoundment will result in exceptional hardship.
3For the reasons set out below, I conclude that the impoundment will result in “exceptional hardship” within the meaning of that term under the Act and the relevant regulation and I direct the Registrar to release the impounded vehicle.
THE LAW
4Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension as a result of certain Criminal Code convictions including drinking and driving offences.
5Under ss. 50.2(1) and (5) of the Act, the 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.
6Section 50.2(3) of the Act allows only five grounds on which an owner may appeal, and they include the ground the appellant relies upon in this case - “that the impoundment will result in exceptional hardship.” The onus is on the appellant to establish the facts that support that ground of appeal on a balance of probabilities.
7A regulation made under the Act (O. Reg. 631/98 (“Regulation”)) sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
8Section 10 of that Regulation provides that the Tribunal must consider whether there is an alternative to the impounded vehicle. The onus is on the appellant to establish that there is no viable alternative. To show that no alternative is available, the Regulation requires the owner to demonstrate that every reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
9If no alternative to the impounded vehicle 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.
10The Regulation also states the Tribunal shall not consider financial loss as exceptional hardship unless the owner demonstrates that there is no alternative to the impounded vehicle, the loss will be immediate, significant, and lasting, and the impact of the loss will be on a person other than the person whose driving while suspended resulted in the impoundment.
APPELLANT’S CIRCUMSTANCES
11The appellant is a small electrical contracting company based in Ottawa, Ontario. Its owner and president is Mr. Olakunle who represented the appellant and provided evidence at this hearing.
12According to Mr. Olakunle, Sonocast is a company that installs electrical wiring and related equipment in new residential homes. It is a small company with few employees and one vehicle – the impounded vehicle. Mr. Olakunle testified that he was shocked to learn that the employee who was driving the vehicle when it was impounded didn’t have a valid licence. He stated that the company learned a painful lesson and has now changed its practice to ensure that only those who are validly licenced drive the company’s vehicle.
13However, Sonocast appeals the impoundment on the basis that it will cause expectational hardship, to both to the company and to its key employee, Mr. Jack Vaillancourt, a 66-year-old licenced electrician (not the driver of the car when it was impounded). According to Mr. Olakunle, whose testimony I accept, the impounded vehicle is essential to the business and is used to transport spools of wire, heavy power tools, equipment, ladders, and a crew of 2-3 to job sites.
14At the time of the impoundment on November 8, 2022, Sonocast was in the midst of completing the one and only contract that it presently has – installing the electrical wiring in two residential homes being constructed in St. Albert, Ontario, which is located about a 45-minute drive east of Ottawa. Since the impoundment, the appellant has been unable to transport its work crew, equipment, tools and ladders to the site. The owner of the development project has become fed up with the appellant’s inability to compete the work and has extended the deadline for completing the work three times. It is now threatening to take Sonocast off job entirely and replace it with another electrical contractor if Sonocast is not back on site by December 12, 2022. That will result in Sonocast losing the only contract it has and will likely result in no further payment from the owner. According to Mr. Olakunle, without transportation for his work crew he has been unable to secure any additional contracts.
15Sonocast still owes Mr. Vaillancourt, its only licenced electrician, payment for some of the work and time that he has invested into the St. Albert project. Without transportation, the appellant will not be able to finish the project, will receive no further payment from the owner, will not be able to fully pay Mr. Vaillancourt for the work he has completed, and will have to lay him off. Without transportation and its only licenced electrician, Sonocast will likely go out of business.
ANALYSIS
16In my view, the appellant has met the onus of establishing that the impoundment will result in “exceptional hardship” as that term is used in the Act and Regulation.
17According to the Regulation, in determining whether the impoundment will result in exceptional hardship the Tribunal must first consider whether there is any alternative to the impounded vehicle.
18In this case, I am satisfied that there is no reasonable alternative available to the appellant. According to Mr. Olakunle, his company is small and struggling to stay afloat in the current economic climate. He has looked into the cost of renting a vehicle but the cost of the rental plus insurance, mileage charges and taxes will amount to $170-$200 per day which is beyond the means of his company. Mr. Olakunle personally owns a plated 12-year-old Mercedes Benz and a 33-year-old Ford. However, they are sedans and not large enough or suitable to transport spools of wire, power tools, equipment, ladders and the work crew to the work site. Mr. Olakunle has also considered the possibility of sharing transportation to the St. Albert site with other contractors working on the project, but the other contractors are based in the St. Albert area and do not commute from Ottawa.
19The Regulation also requires that I consider whether the impoundment will result in a threat to the health and safety of anyone normally transported by the vehicle. In this case there is no evidence of such a threat. The nature of the hardship alleged by the appellant is financial – the appellant argues that the impoundment will result in Sonocast losing the only contract and income that it presently has, will prevent it from getting new work in an already difficult market, will result in Mr. Vaillancourt losing the money he is owed on the present job and being laid off, and likely put Sonocast out of business as an electrical contractor.
20The Regulation specifically states that the Tribunal may only consider financial loss as exceptional hardship if the loss will be immediate, significant, and lasting, will be suffered by someone other than the suspended driver whose driving resulted in the impoundment, and the impact of the loss (in this case, a financial loss) will not be a result of a loss by the suspended driver.
21In this case, the available evidence establishes on a balance of probabilities that that the impoundment will result in a financial loss to both the appellant and Mr. Vaillancourt and that loss that will be immediate, significant and lasting. This is not a case where the impoundment will result in a financial loss that can be eventually absorbed. Sonocast is on the verge of losing the only contract and income that it has. I conclude that the loss of this contract seriously threatens the continued viability of Sonocast and its ability to pay and continue to employ Mr. Vaillancourt.
22In my opinion those losses are immediate, significant and lasting and will be suffered by Sonocast and Mr. Vaillancourt, not the suspended driver who was driving the vehicle when it was impounded. In summary, I conclude that the impoundment will result in exceptional hardship as that term is defined and limited by the Act and Regulation.
ORDER
23Pursuant to s.50.2(5) of the Highway Traffic Act, I direct the Registrar to release the impounded vehicle.
LICENCE APPEAL TRIBUNAL
_________________________
Stephen Scharbach, Member
Released: