Green Acres Landcare Inc. v. Registrar of Motor Vehicles, 2024 CanLII 102089

Licence Appeal Tribunal File Number: 16309/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 under section 55.1 of the Act for driving while suspended.

Between:

Green Acres Landcare Inc.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Giselle Stewart, Owner of appellant

For the Respondent: Leila Pereira, Representative

HEARD: October 17, 2024

OVERVIEW

1Green Acres Landcare Inc., the appellant, appeals from the impoundment of its 2024 GMC, the vehicle, on September 25, 2024 for 45 days when it was being driven by Richard Stewart, the husband of the appellant’s representative, who did not have a valid driver’s licence.

2The appellant appeals on the ground that the impoundment will result in exceptional hardship because it needs the truck to provide winter services to generate income, it needs to have the truck back in time to get it ready for the winter season and equip it to be able to put a plow/salter to fulfill any contacts it obtains. The appellant states in the Notice of Appeal that the winter season begins either on October 15, 2024 or November 1, 2024 and not having access to the vehicle will cause financial hardship.

ISSUES

3The issue in dispute is:

Issue 1: Whether the impoundment will result in exceptional hardship.

RESULT

4I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (d), that the impoundment will result in exceptional hardship.

Issue 1: Will the impoundment result in exceptional hardship?

7I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

8Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…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.

9If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

10I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

11Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

12Giselle Stewart who described herself as the owner of the appellant, testified that the appellant needs the vehicle to carry on its business as a snow removal contractor and to allow the appellant to bid on contracts by October 15 and November 1, 2024 for snow removal during the upcoming winter season. The appellant’s only business is snow removal. Ms. Stewart also testified that the appellant needs to get the vehicle released so the appellant can get it equipped to plow snow.

13Ms. Stewart said whether or not the vehicle will be released from impoundment will impact the finances of the appellant. Firstly, the appellant needs to know whether it will have the vehicle to do snow removal or whether it will have to hire a subcontractor to do it with the subcontractor’s vehicle and driver. This will affect the costs of the appellant which is information the appellant needs to bid on snow removal contracts. Secondly, the appellant needs to know if it will have to pay the impoundment fees which will adversely affect the appellant’s finances because it cannot afford to pay the impoundment fees and, then the vehicle will become unaffordable to the appellant and, it may lose the vehicle.

14Ms. Stewart admitted in cross-examination that the appellant would be able to complete any contracts it obtains by hiring a subcontractor that has its own vehicle and driver, albeit at a cost.

15Ms. Stewart also admitted that in the past the appellant has hired subcontractors to complete its work but this year intended to use its own vehicle and just hire a driver which would help to keep its costs down.

16Ms. Stewart also admitted that there is nothing preventing the appellant from bidding on snow removal contracts and entering into contracts between now and the date when the vehicle is scheduled to be released from impoundment, specifically November 9, 2024.

17Although the appellant submitted documentation about why it believes the vehicle was stopped by the police, after hearing the respondent’s testimony, Ms. Stewart acknowledged that she now understands that the vehicle was impounded because it was being driven by her husband whose driver’s licence is suspended.

18It is clear from the testimony of Ms. Stewart that the loss of the vehicle during the impoundment period is inconvenient for the appellant’s business.

19Inconvenience is not a factor which the Tribunal can take into consideration.

20I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

21I find that the appellant has an alternative to the impounded vehicle available to it during the impoundment period, specifically, to subcontract the appellant’s snow removal contract work should the appellant be contracted for snow removal and it snows before November 9, 2024. This is a method of carrying on business which the appellant is familiar with and has used in the past.

22Given that the appellant has an alternative to the vehicle, I cannot consider whether the impoundment will result in financial loss to the appellant.

Conclusion

23As a result, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

24Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.