Licence Appeal Tribunal File Number: 15426/MVIA

In the matter of 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 of the Act.

Between:

Rusty Spitzig

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Rusty Spitzig, Appellant

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

December 7, 2023

OVERVIEW

1Rusty Spitzig (the “appellant”) appeals the impoundment of his 2012 International TER on November 11, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, one of his employees was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant appeals on the grounds that the impoundment will result in exceptional hardship.

ISSUES

3The issue in dispute is:

1. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the appellant has not established that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the HTA. As a result, I confirm the impoundment.

ANALYSIS

5The appellant’s vehicle was impounded pursuant to s. 55.1(1)1 of the HTA, because one of his employees was driving the vehicle while his licence was suspended.

6The respondent presented evidence that the licence of the driver was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

7The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

8A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s.50.2(3) (d) as noted above.

The impoundment of the vehicle will not result in exceptional hardship.

9Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria by which exceptional hardship is defined for the purposes of s. 50.2(3)(d) of the HTA. Subsection 10(1) compels the Tribunal to first consider whether the owner has alternatives to the impounded vehicle during the impound period.

15Subsection 10(4) of the Regulation places the burden on the owner to demonstrate there is no alternative to the impounded vehicle, which includes considering and inquiring into every reasonable option such as using another vehicle and making arrangements to manage without any motor vehicle during the impound period.

16Only if the appellant demonstrates that no alternative to the impounded vehicle is available to him, may I consider the other factors and criteria in the Regulation that define the exceptional hardship test, for example, financial loss, loss of employment, or the health and safety of persons who may rely on the impounded vehicle. Importantly, the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

The appellant has alternatives to the impounded vehicle during the impound period.

17The appellant testified that he runs a business cleaning feed trucks to keep animals clean and prevent the spread of disease. He submits that he cannot rent or use an alternative vehicle during the impound period because the impounded truck has special insulation which stores a large water tank and pressure washer which is needed to carry out his employment tasks. In addition, the impounded truck is the main source of income for both him and his employees. He has looked into renting a truck from U-Haul; however, U-Haul would not rent to him for his purpose because the use of water could damage the rental truck.

18During cross-examination, the appellant acknowledged that he owns two other vehicles: a pickup truck and a Lincoln and his wife owns a Bronco. Further, he has used his pickup truck to drive to the various locations of his customers and has been using their water supply to carry out his employment tasks. The appellant indicated that since his truck was impounded, he has missed three jobs and using the customer’s water supply has inconvenienced his customers which may result in him losing future business. The appellant also claimed that as the weather gets colder, he will not be able to use the customer’s water supply because the pipes are connected to buildings which will freeze. Moreover, some of his customers are farmers who do not have a water supply close to their barns. Finally, the applicant also confirmed that he has been able to carry out all of his other errands such as doctor’s appointments and getting groceries and other necessities using his other vehicles.

19Although the impoundment of the appellant’s vehicle has caused inconvenience, and has had financial consequences, I find that he has alternatives to the impounded vehicle because he owns two other vehicles which have met his transportation needs during the impound period.

20Since there are alternative means of transportation available to the appellant during the impound period, I need not take into consideration the other criteria in the Regulation that define the exceptional hardship test such as financial loss or health and safety issues.

21I am not satisfied that the appellant has proven, on a balance of probabilities, that he is without alternatives to the impounded vehicle.

CONCLUSION

22I find the appellant has not proven the impoundment will result in exceptional hardship under the provisions of s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.