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:
John Stewart
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Evelyn Spence, Member
APPEARANCES:
For the Appellant: John Stewart, Self-Represented
For the Respondent: Leila Pereira, Agent
Held by teleconference: September 23, 2022
A. OVERVIEW
1The appellant, John Stewart, appeals the 45-day impoundment of his 2005 Chevrolet Silverado (the "vehicle").
2On August 25, 2022, the vehicle was impounded when police discovered the appellant driving the vehicle. According to the Registrar of Motor Vehicles (the "Registrar"), at the time of impoundment, the appellant's licence was suspended due to a Criminal Code conviction for refusing to provide a breath sample. As a result, the vehicle was impounded as required under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
3The appellant requests that the Tribunal make a finding that the impoundment be set aside and that the Registrar release the vehicle.
B. ISSUE AND DECISION
4The issue to be decided is whether the impoundment will result in exceptional hardship within the meaning of s. 50.2(3)(d) of the Act.
5For the reasons that follow, the impoundment is confirmed. I find that the impoundment does not result in exceptional hardship.
C. LAW
6The intent of the Act is to promote public safety by preventing persons whose driver's licenses are suspended for certain reasons from operating motor vehicles. Pursuant to s. 55.1 of the Act, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension for various Criminal Code-related offences.
7The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2 of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the period of impoundment.
8There are limited grounds on which an owner may appeal an impoundment, and the appellant bears the burden of proving that they fall within one of the grounds of appeal set out in s. 50.2(3) of the Act.
9In the present case, the case conference report and order indicated that the appellant would be advancing two grounds of appeal: (1) that he exercised due diligence in attempting to determine that his driver's licence was not under suspension at the time of impoundment, and (2) that the impoundment will result in exceptional hardship. At the outset of the hearing, however, the appellant made it very clear that he no longer wished to advance the first ground and stated instead that he would be relying solely on the ground of exceptional hardship.
D. ANALYSIS
a) Exceptional Hardship
10Section 10 of Ontario Regulation 631/98 (the "Regulation"), made under the Act, sets out the criteria that the Tribunal may consider, and others that it may not, in determining whether an impoundment will result in exceptional hardship. The test for exceptional hardship in the impoundment context is very difficult to meet.
11Pursuant to s. 10(1) of the Regulation, the Tribunal's first step in assessing exceptional hardship is to consider whether an alternative to the impounded motor vehicle is available. If the Tribunal finds that there is an alternative to the impounded vehicle, then the Tribunal need not consider any other requirements – the ground of exceptional hardship will have failed.
12If, however, the Tribunal is satisfied that there is no alternative to the impounded vehicle, then the Tribunal must determine whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to the public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
13The Tribunal may not consider financial or economic loss to any person, loss of employment or employment opportunity to any person, or loss of education or training, unless the owner of the vehicle is able to demonstrate that:
a. There is no alternative to the vehicle available;
b. The loss will be immediate, significant and lasting;
c. The impact will be on a person ordinarily transported by the vehicle; and,
d. The impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver.
14Pursuant to s. 10(2)(a), under no circumstances can the Tribunal consider "inconvenience to any person" in determining exceptional hardship.
i. The appellant's circumstances
15The appellant works as a contractor in the construction industry and he relies on the use of his vehicle to get to and from his various job sites. He testified that there are two individuals who work for him, who can drive, but those individuals do not have their own vehicles or access to a vehicle. Moreover, he explained that his vehicle is used to get him and his team and their heavy equipment (ladders, tools, etc.) to and from work sites. He states that he cannot take public transportation, taxis, or rides to job sites from neighbours, family or friends unless they were to have a vehicle that could transport his heavy equipment, and none do. As a result, the appellant asserts that he has not been able to work while his vehicle is impounded, and that he will "probably be homeless" if the vehicle is not returned to him soon. He testified also that his two employees have lost wages because of the impoundment.
16In the month that the appellant has been without his vehicle, he confirmed that he has been able to get his essentials, including food and any other necessities.
ii. Alternative to the impounded vehicle
17The legal threshold for confirming whether there is an "alternative to the impounded vehicle" is not simply whether the appellant owns or has access to a second vehicle. Instead, s. 10 (4) of the Regulation sets out what an appellant must show in order to meet this initial prong of the test, as follows:
In order to show that no alternative to the impounded motor vehicle is available… 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.
18The respondent's agent provided the Tribunal with a copy of records maintained by the Ministry of Transportation under the Act, dated September 19, 2022. Those records reveal that in addition to the impounded vehicle, there are three vehicles with inactive plates that are registered to the appellant. There is also an unplated vehicle in the appellant's name.
19At the presentation of this evidence, the appellant became very agitated, arguing that those other vehicles had been "scrapped" and were no longer in his possession. He vehemently disagreed with the Registrar's position that the appellant could, upon obtaining insurance and valid plates, have those vehicles legally operated by one of his two employees, or anyone else, with valid licences.
iii. Assessment of the loss and impact
20Even if the appellant had presented evidence to substantiate his claims that the additional vehicles registered under his name were not, in fact, in his possession or capable of being safely driven, there remains the fact that the appellant has not established that the impoundment caused a threat to the health or safety of any person ordinarily transported by the vehicle.
21His statements that his employees are losing wages during the period of impoundment, without evidence from those employees to substantiate this assertion, taken together with the appellant's testimony that his construction jobs are "on hold" and that he and his employees would return to the job sites to finish their work once his vehicle was returned to him, do not establish that the financial or economic losses that are asserted would be significant and lasting to those persons ordinarily transported by the vehicle.
22As a matter of policy, and in accordance with s. 10(3)(d)(ii) of the Regulation, I am barred from considering the impact of any financial or economic loss, or loss of employment or employment opportunity, suffered by the suspended driver. In this case, that means I am precluded from considering how these losses may impact the appellant.
E. ORDER:
23I find that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
24Pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment of Mr. Stewart's vehicle. The vehicle shall remain at the impound facility for the remainder of the impound period.
LICENCE APPEAL TRIBUNAL
Evelyn Spence, Member
Released: September 30, 2022