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:
Bruce Potter
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Bruce Potter, Self-Represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: July 27, 2022
Overview
1Mr. Bruce Potter (“appellant”) appeals the impoundment of his 2006 Chevy 3500, a cube van.
2The appellant operates a concrete installation company and uses the cube van to transport tools and equipment to job sites.
3The vehicle was impounded on June 29, 2022, when it was discovered by police being driven by one of the appellant’s employees. For some unexplained reason, the Registrar did not present any evidence about the employee’s driving record.
4However, the evidence establishes that the police impounded the appellant’s vehicle for 45 days under s. 55.1 of the Highway Traffic Act (“Act”) which requires that a vehicle be impounded where the driver’s licence is under suspension because of a Criminal Code conviction for a drinking and driving offence or was being driven in contravention of condition requiring an ignition interlock device.
5The appellant appeals the impoundment on the ground that it will result in exceptional hardship.
6For the reasons set out below, I conclude that the impoundment will not result in “exceptional hardship” within the meaning of that term under the Act and regulations and I confirm the impoundment of the appellant’s vehicle.
THE LAW
7Under the Act, a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose licence was under suspension as a result of a Criminal Code drinking and driving conviction, or in contravention of a condition that prohibits the driver from operating a vehicle unless it is equipped with an ignition interlock device.
8The 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.
9The Act allows only five grounds on which an owner may appeal, and they include the ground upon which the appellant relies 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.
10A 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.
11Section 10 of that Regulation provides that the Tribunal must consider whether an alternative to the impounded vehicle is available. 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 other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
12The regulation provides that financial loss and loss of employment opportunities may be considered as exceptional hardship but only if the owner demonstrates that:
a. there is no available alternative to the impounded vehicle;
b. the loss will be immediate, significant, and lasting;
c. the impact of the loss will be on someone ordinarily transported by the vehicle; and
d. the impact of the loss will be on someone other than the suspended driver.
13If 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. The regulation specifically states that the Tribunal shall not consider inconvenience to any person when considering whether an impoundment will result exceptional hardship.
APPELLANT’S CIRCUMSTANCES
14The appellant operates a concrete installation business and normally operates with a complement of four vehicles - two pick-up trucks, a dump truck, and the impounded cube van.
15The cube van is used to transport tools and equipment to job sites. The appellant does not have another vehicle that can efficiently perform that function. Since the impoundment, the appellant has had to transport tools and equipment using the remaining vehicles. According to the appellant, he cannot work efficiently this way. It takes longer to complete projects and makes it difficult to complete scheduled projects on time. That has made operating more expensive, potentially puts his company’s reputation in jeopardy, opens him up to lawsuits from discontented clients, and affects his ability to continue to employ his workers.
16In addition, the appellant will have to pay approximately $7500 in impound fees to recover the vehicle. According to the appellant, he cannot afford that fee and it is another aspect of the exceptional hardship that results from the impoundment.
ANALYSIS
17In my view, the appellant has not met the onus of establishing that the impoundment will result in “exceptional hardship” as that term is used in the Act and Regulation.
18The appellant has not satisfied me that there is no alternative to the impounded vehicle and his appeal under the ground of exceptional hardship must fail.
19The appellant provided no information about whether other reasonable options had been considered and costed, such as renting a replacement vehicle. However, the appellant has been able to manage during the impoundment by transporting tools and equipment in his pick-up trucks. I accept the appellant’s evidence that operating this way is more time consuming and costly. However, the appellant has been able to continue to operate, although not as efficiently. I therefore conclude that the appellant has a viable alternative to the impounded vehicle.
20I accept that the appellant will suffer a financial hardship because of the impoundment. The impound fee is a significant and unanticipated bill that the appellant will have to pay to get the vehicle released. I also accept that the loss of the cube van has likely resulted in additional cost to the appellant.
21However, in this case, the Regulation is clear – financial or economic loss may not be considered in determining whether an impoundment will result in exceptional hardship unless the appellant demonstrates that no alternative to the impounded vehicle is available. 1 As noted above, I have concluded that the appellant has an alternative to the impounded vehicle.
22In my view, the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is defined and limited by the Act and Regulation. I therefore confirm the impoundment.
ORDER
23Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Stephen Scharbach, Member
Released: August 10, 2022