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:
Gerber Landscaping Ltd.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Kevin Lundy, Member
Appearances:
For the Appellant: Jacob Holfeuer, Owner
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: January 16, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Gerber Landscaping Ltd. (the ‘appellant’), appeals the impoundment of its motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the ‘Act’). The appellant’s motor vehicle was impounded on October 6, 2022. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days. The vehicle was released from impoundment on November 23, 2022.
2The appellant appeals on the ground that the impoundment will cause exceptional hardship.
ISSUES TO BE DETERMINED
3The issue to be determined is whether the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.
RESULT
4For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.
EVIDENCE AND ANALYSIS
5The respondent presented uncontested evidence which demonstrates that:
a. the appellant is the registered owner of the impounded vehicle, a 2006 Ford F-350 truck;
b. On October 6, 2022, police discovered the impounded vehicle being driven by Chad Ueberschlag (‘C.U.’); and
c. C.U.’s licence was under suspension for a criminal conviction at the time the motor vehicle was impounded.
Exceptional Hardship
6Section 10 of O. Reg. 631/98 under the Act (the ‘Regulation’) sets out the criteria and factors that the Licence Appeal Tribunal (the ‘Tribunal’) must consider in determining whether exceptional hardship will result from an impoundment.
7Subsection 10(1) of the Regulation requires the Tribunal to consider first whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
8If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under subsection 50.2(3)(d) of the Act will fail.
9If the owner proves that there is no alternative to the impounded vehicle available, then subsection 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant demonstrates that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
10In the present case, Jacob Holfeuer (J.H.’), owns the appellant company, a landscaping business located in Elora, Ontario. Records submitted by the respondent confirm that the business owns nineteen vehicles, fourteen of which were plated as of January 5, 2023. At least one or more of these vehicles were available for use during the period of impoundment.
11J.H. explained that on the date of impoundment, he had intended to sell two of these vehicles to a concrete company. The concrete company sent an employee, C.U. to Gerber Landscaping to inspect and test drive the vehicle that was ultimately impounded. J.H. was not present when C.U. arrived and an employee provided C.U. with the keys to the truck. J.H. noted that this was not the person who he expected would attend for the test drive or that the driver would operate the vehicle on public roads rather on the company’s private lot. He was also unaware that C.U.’s driver’s licence was suspended. In retrospect, he acknowledged that he had assumed that the concrete company would have taken steps to confirm that whoever it sent to drive the truck held a driver’s licence that was not under suspension. Prior to impoundment, he was unaware that the respondent provides a free online service that provides information with respect to whether a specific driver’s licence is currently under suspension.
12The respondent opposed admission of banking and other documents that confirm the company’s distressed financial situation on the basis that they were submitted after the due date set out on the case conference order dated January 5, 2023. However, J.H. explained that he encountered some unexpected delay in obtaining these documents from his business partner who more directly attends to the financial transactions of the business. As well, subsection 15(1) the Statutory Powers Procedure Act, (the ‘SPPA’) permits the Tribunal to admit and consider any evidence, document or other thing that is relevant to the subject-matter of the proceeding. As the evidence of the appellant’s financial difficulties are directly relevant to the ground of the appeal, I admitted and considered these documents as evidence at the hearing.
13Although the banking records submitted by the appellant confirm that the company is in severe financial distress, J.H. was unable to describe any specific action the company was unable to complete as a result of the impoundment. He explained that he reassigned another truck from other operations to complete the duties for which the impounded vehicle had been used.
14Ultimately, I find that the appellant has not demonstrated that there were no alternatives to the impounded vehicle available and its appeal under subsection 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.
ORDER
15For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
_________________________
Kevin Lundy
Member
RELEASED: January 17, 2023