Licence Appeal Tribunal File Number: 15139/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(3) of the Act.
Between:
Rosedale Paving Limited
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
David Perreault, Representative
For the Respondent:
Andrew Sookhoo, Agent
Heard by Teleconference:
September 1, 2023
OVERVIEW
1Rosedale Paving Limited, represented by their General Manager David Perreault, appeals the 45-day impoundment of their 2018 GMC one-tonne dump truck under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on August 10, 2023, after police found it being operated by an employee with a suspended driver’s licence for a Criminal Code conviction.
3Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. In this case, the driver was previously found guilty of fail to stop for a police officer in May 2023. As a result, police impounded the vehicle pursuant to this subsection of the Act.
ISSUES
4The appellant appeals the impoundment on the grounds that the impoundment will result in exceptional hardship, relying on s. 50.2(3)(d) of the Act.
5The appellant also appeals the impoundment under s. 50.2(3)(c) of the Act, submitting that it exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was impounded was not then under suspension.
6To succeed in its appeal, the appellant must establish one or both grounds of appeal on a balance of probabilities.
7The issues to be determined are:
a) Whether the impoundment of the vehicle will result in exceptional hardship to the appellant.
b) Whether the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was impounded was not then under suspension.
CONCLUSION
8Having considered the parties’ evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that the impoundment will result in exceptional hardship as the appellant has reasonable alternatives to the impounded vehicle. In addition to this, I find that the appellant has also failed to demonstrate on a balance of probabilities that it exercised due diligence in attempting to determine the driver’s licence of their employee was not under suspension at the time of the impoundment. I therefore dismiss the appeal and confirm the impoundment.
ANALYSIS
Has the appellant demonstrated due diligence?
9It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that one of their employees (C.N.) was driving it at the time it was impounded. The employee did not have a valid driver’s licence at the time as it was under suspension following a Criminal Code conviction for fail to stop for a police officer on May 14, 2023. I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.
10In their Notice of Appeal to the Licence Appeal Tribunal (the “Tribunal”), the appellant states that it checked C.N.’s driving record on May 30, 2023, as part of their annual procedure to ensure he has a valid driver’s licence to operate company vehicles. It further testified that drivers licence checks are conducted for all employees upon hire. This would have been the second drivers licence check for C.N. in as many years. The appellant provided no documentation to corroborate this at the hearing.
11In this case, I find that checking employee drivers’ licences once a year falls short of achieving due diligence to ensure drivers are properly licenced to drive a company vehicle year-round. More frequent checks may be warranted in order to verify employee drivers’ licences are valid. The appellant appears to rely mainly on their employees to be forthcoming with new charges incurred related to their driving. This cannot always be relied upon and does not demonstrate due diligence on the part of the appellant as they are not being proactive in checking driver’s licence validity which can now be performed online with ease. The respondent shared this information with the appellant during the hearing to which they were grateful and stated they would utilize the service going forward.
12The appellant called a witness (K.M.) who holds the role of office administrator with the company. She testified that the company holds meetings every spring at which time they review the company rules and health and safety policies, and that all employees, including C.N., would have acknowledged company expectations by signing off on company policies and training. This includes not driving without a licence and doing so would result in immediate termination. There was no documentation provided to support this. The witness also noted that C.N. is no longer working for them. Despite these facts, it did not persuade me to find that the appellant met the standard of due diligence which is needed to ensure the drivers of their company vehicles are properly licenced. An annual drivers check, which is currently the appellant’s practice, is not sufficient.
Has the appellant experienced exceptional hardship as a result of the impoundment?
13I find that the appellant has failed to show that the impoundment will cause exceptional hardship for the reasons which follow.
14As a first step, s. 10(1) of O. Reg. 631/98 (“Regulation”) elaborates on exceptional hardship. Section 10(4) sets out the need for an appellant to establish that there are no reasonable alternatives to the impounded vehicle. This is a necessary first step in establishing exceptional hardship. Section 10(4) of the Regulation provides, as follows:
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
15Section 10 (1) of the Regulation requires me to consider whether “no alternative to the impounded motor vehicle is available”. The appellant did not offer any evidence to demonstrate on a balance of probabilities that they had no alternative to the impounded motor vehicle. In fact, both the appellant and respondent provided testimony to show that there are other company vehicles available with sufficient capability to perform the necessary work during the temporary period of impoundment. I accept the appellant’s testimony that this vehicle has specific capabilities as a one tonne, dump box truck used to move material daily. However, they have been able to haul their trailer with another pickup truck during this time.
16I also take notice that the impoundment has not caused any change or disruption to the business aside from the inconvenience of not having that particular vehicle available as part of their fleet for this temporary period. The respondent has been able to juggle employees, drivers and vehicles to maintain the full function of the business operation. Of note, the respondent provided evidence which confirmed approximately 32 vehicles (mostly trailers) licenced by the appellant. Of those, 9 vehicles were similar to the one impounded.
17The appellant does have reasonable alternatives, which have allowed the appellant to continue its business and daily routine with no major disruption.
18The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives, then the ground of exceptional hardship is not available as a ground of appeal. For the reasons set out in this decision, I find that the appellant has failed to discharge the threshold burden of establishing that there are no reasonable alternatives to the impounded vehicle.
CONCLUSION
19The appellant has failed to satisfy the Tribunal on a balance of probabilities any of the grounds for appealing the impoundment.
ORDER
20For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: October 19, 2023