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:
1845937 Ontario Inc.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Avril A. Farlam, Vice-Chair
APPEARANCES:
For the Appellant: Andreea Gheorghiu, President of the Appellant
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: August 4, 2022
REASONS FOR DECISION AND ORDER
A. background:
1A teleconference hearing was held on August 4, 2022 to consider the appeal of 1845937 Ontario Inc. (the “appellant) of the impoundment of its 2016 Mercedes CSP (“vehicle”) on July 12, 2022 for 45 days. At the time of the impoundment the vehicle was being driven by Daniel Gheorghiu, the husband of Andreea Gheorghiu.
2The ground for the appeal is that the impoundment will result in exceptional hardship because the vehicle is needed for the appellant’s business of transporting and installing countertops (“the business”), the impoundment will result in loss of employment and financial loss for the employees and the families of the installation crew.
B. ISSUE:
3The issue to be determined is whether the impoundment will result in exceptional hardship.
C. CONCLUSION:
4I find that the appellant’s evidence fails to support a finding that the impoundment will result in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.
Will the impoundment result in exceptional hardship?
7I find that the impoundment will not result in exceptional hardship because the appellant has an alternative available to the impounded vehicle.
8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
…the 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.
9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
12The evidence before me is clear that the licence of the driver was suspended at the time the vehicle was impounded. The appellant did not contest this.
13Georgina Gheorghiu, the President and a shareholder of the appellant, testified that the vehicle is customized for the transportation of countertops with framing and the vehicle is large enough and bears enough weight for the purposes of the business. Ms. Gheorghiu testified that the appellant is a small business, its main activity is carried out in the vehicle and while the vehicle is impounded, the appellant will be unable to carry on business. Ms. Gheorghiu testified that she does not receive any income from the business as she has her own career which gives her employment income ten months of the year. Ms. Gheorghiu filed documents showing that she and the business have ongoing expenses during the period of impoundment which is causing exceptional hardship.
14Ms. Gheorghiu owns another utility vehicle, a 2012 Ford EPR, which she testified is not suitable for use in the business but is available to her for her own personal use during the impoundment period.
15Ms. Gheorghiu admitted that she had no proof that the business has lost jobs during the impoundment period. Ms. Gheorghiu also admitted that the business has jobs lined up now for when the impoundment period expires so that the appellant’s business can continue after the impoundment. The appellant’s one non-family member employee left the business after the vehicle was impounded.
16I find that the appellant has an alternative to the impounded vehicle available to it during the impoundment period based on the testimony of Ms. Gheorghiu. The appellant could have rented a truck, albeit at a cost, but chose not to do so. Ms. Gheorghiu testified that she found one rental agency, U-Haul, from which the appellant could rent a large enough vehicle, but the cost would be $199.00 per day and there would be a mileage limit of up to 1,000 kilometers per day because of the cost and the mileage limit.
17The appellant decided not to rent the U-Haul vehicle during the impoundment period. As a result, I find that the appellant has not demonstrated that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, as the law requires.
18Instead of renting a replacement vehicle, the appellant chose to defer business during the impoundment period. Ms. Gheorghiu testified that the appellant has been able to line up jobs now during the impoundment period for when the impoundment period expires so that the appellant’s business can continue after the impoundment so there will be no lasting financial impact on the business.
19As the appellant had an alternative to the impounded vehicle but chose not to avail itself of that alternative, I am unable to consider the appellant’s submissions and evidence related to Ms. Gheorghiu’s personal financial or economic loss and that of the business.
20I therefore find the appellant has not established the impoundment has resulted in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
21Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Avril A. Farlam, Vice-Chair
Released: August 09, 2022