An appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to Section 55.1(3) of the Act.
Between:
High Tech Communications Inc.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Robert Baggs, Agent
For the Respondent:
Stephen Grootenboer, Agent
Heard by Teleconference:
January 25, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, High Tech Communications Inc., appeals the 45-day impoundment of a company vehicle that is used for employment purposes by Robert Baggs. Mr. Baggs is acting as the authorized representative of the appellant in this matter and will also be referred to as the appellant in this decision.
2The vehicle, a 2014 Dodge Caravan, was impounded on December 19, 2021. Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
3The appellant is appealing the impoundment on two grounds: that the vehicle was stolen at the time of the impoundment, and that the impoundment will result in exceptional hardship. These grounds are provided in section 50.2(3) of the Act:
a. That the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
d. That the impoundment will result in exceptional hardship.
4The vehicle was being driven by Mr. Baggs’s son, Ryan Baggs, whose licence was under a criminal code suspension at the time. It is the appellant’s position that his son took the vehicle without permission. This pattern of non-compliance is reflected in his son’s poor driving record which includes multiple suspensions and a fail to remain at the scene of an accident.
5The appellant was aware that his son’s licence is currently under suspension.
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that; the vehicle was stolen at the time of impound and that the impoundment will result in exceptional hardship.
ANALYSIS
7Mr. Baggs works for High Tech Communications Inc. as a Service Technician. He has been employed there since November 2000. The impounded vehicle is issued to him for work purposes. He explained that he is the only one authorized to use the vehicle.
8In the early morning hours of December 19, 2021, police attended the home of the appellant. They were there to arrest his son, Ryan Baggs, for dangerous driving and impaired driving. He was observed driving the appellant’s vehicle and police located him later in the family home. Ryan was subsequently placed under arrest and transported to the police station to be formally charged.
9The appellant states that he was unaware his son took the vehicle and at no time provided consent. He explained that he and his wife were sleeping upstairs at the time and did not know their son had left home until police arrived to arrest him.
10The appellant was aware that his son’s driver’s licence was under suspension at the time. He explained that there are other vehicles available at the family home. The appellant testified that he typically keeps the keys for his work vehicle on his night table or in his jacket pocket. Given his knowledge of his son’s licence status and past driving record, I find that the appellant could have taken greater care to store (and conceal if necessary) his vehicle keys to disallow access. It was unclear in the testimony as to why his son would choose to take the work vehicle as opposed to other vehicles at the home.
11In addition to this, I also find that the availability of vehicles in the family home gave rise to a permissive family atmosphere which may condone the ability to share vehicles between the different drivers. It appears that it is not uncommon for his son to use other family vehicles including his wife’s Chevrolet Equinox or a grey 2005 Chevrolet Cavalier, all of which the appellant also has access to. There are vehicles which are available at the home for all drivers to access. While Mr. Baggs did state that his son would never use his work vehicle, the easy access to other family vehicles calls this assertion into question.
12I also find that there was no concern for the permanent loss of the vehicle. The appellant also stated that he did not doubt that the vehicle would be returned to the home after use. Ryan was also not formally charged with theft of the vehicle. I find that the appellant failed to show on a balance of probabilities that the vehicle was stolen.
13The appellant also relied on the grounds that he has experienced exceptional hardship as a result of the impoundment. At the hearing, he explained that he has suffered financial loss as a result of his company vehicle being impounded. However, there was no documentary evidence to support this. I accept the fact that the loss of the vehicle is of significant inconvenience to the appellant. As previously stated, he is employed as a Service Technician and his job requires that he transport his tools, a ladder and other equipment to various work sites. Since the impoundment, he has still been able to conduct service calls that don’t require his tools, which are currently locked in the impounded vehicle. I would also note that the appellant has the ability to contact the impound yard and make arrangements to retrieve his tools while it is impounded. There was no evidence to show that he did and/or was denied access.
14In order to consider the grounds of exceptional hardship, I must first consider whether alternative modes of transportation exist for the appellant, and have they been explored. In this case, the appellant has numerous other options including other vehicles at the family home.
15At the hearing, the appellant explained that he has been able to use his wife’s vehicle whenever she works from home. He also explained that he was able to use his father’s vehicle occasionally for service calls. The appellant stated that he has missed approximately 3 weeks of work cumulatively. There was no evidence to suggest that Mr. Baggs’s employment with High Tech Communications Inc. is in jeopardy.
16Mr. Baggs’s employer has also been able to accommodate him with other work duties in the office on some days. On another occasion, an employee was off work and the appellant was able to use his vehicle. Based on this testimony, it is clear that Mr. Baggs’s employer is accommodating and allowing him to remain gainfully employed.
17The respondent asserts that the vehicle was properly impounded in accordance with 55.1(1) of the Act. The respondent also submits that the vehicle was not stolen at the time of the impound and that the appellant has other options available to him that disqualify him from relying on the grounds of exceptional hardship.
18I accept the respondent’s position on both accounts. I find that the appellant failed to prove on a balance of probabilities that the vehicle was stolen and that he meets the test for exceptional hardship, as set out in the Regulation. This is based on the alternatives available to him and the absence of any situation that can be deemed a danger to health and safety for him or his any users of the vehicle. Mr. Baggs’s employer has been accommodating and he has been able to access other vehicles. He has also been assigned work that does not require his tools.
ORDER
19For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
_____________________________
Raymond C. Ramdayal, Member
Released: March 30, 2022