Cox Construction Limited v. Registrar of Motor Vehicles, 2024 CanLII 106238

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 that Act

Between:

Cox Construction Limited

Appellant

and

Registrar of Motor Vehicles

Respondent

AMENDED DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Dennis Amstett, Comptroller

Michael McCluskey, Counsel

For the Respondent: Leila Pereira Sadia Ashraf, Agent

Heard by teleconference: October 24, 2024

Overview

1Cox Construction Limited (the “Appellant”) appeals the 45-day impoundment of its 2014 Volvo VHD (the “Volvo”) on October 1, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by S.C. (the “driver”), whose licence was suspended due to a criminal conviction.

2The Appellant appealed the impoundment to the Tribunal on September 20, 2024.

Issues

3The issues to be determined are:

1. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

Result

4For the reasons set we below, I confirm the impoundment of the vehicle.

Analysis

5The Registrar of Motor Vehicles (the “Registrar”) presented evidence that the Volvo was stopped by police while it was being driven by a person, S.C., whose licence was suspended due to a prescribed Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.

Will the impoundment result in exceptional hardship as that term is defined in the Act and the Regulation?

6The impoundment of the vehicle will not result in exceptional hardship.

7Section 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. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative available to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate that they have considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any vehicle. If I find that there is an alternative to the

impounded vehicle, then the appeal will fail and I need not consider any other requirements of the test for exceptional hardship.

8If it finds there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle or to the public health and safety or the environment or property of a community in whose service the motor vehicle is ordinarily used. The Tribunal may also at that stage consider if there would be an immediate, significant and long-lasting financial or economic loss or loss of employment or education (or an opportunity for the same) to any person ordinarily transported by the vehicle other than the suspended driver.

There is no reasonable alternative to the impounded vehicle

9The Appellant submits that the impoundment will result in exceptional hardship as it has no reasonable alternative to the vehicle. The Appellant is a company that specializes in road construction and maintenance services, including asphalt paving, snow removal and supply of aggregates. The Appellant’s head address is in Guelph, Ontario but it carries out contracts throughout southwestern and central Ontario.

10Dennis Amstett, comptroller for the Appellant (“Mr. Amstett”) testified that, as the focus of the Appellant’s work is maintenance and repair of feeder roads between municipalities, the season of their municipal contracts occurs primarily between the months of April and November of any given year. Any failures to complete the contracts prior to the finish dates of the contracts could lead to financial penalties. Also, if work extends into the winter months, a “half-load rule’ comes into effect which restricts the quantity of material that can be carried, which, in turn, doubles the number of trucks required to complete projects.

11The documentary evidence from both the Appellant and the Registrar establishes that the Appellant owns and operates numerous vehicles and heavy equipment in their business of road repairs. Mr. Amstett testified that the Volvo is a one-of-a-kind specialized vehicle, customized to service the other vehicles at their workplace sites. The Volvo provides fuel, fluids and lubricants to the vehicles which do not return to the Appellant’s main depot on a regular basis. The Volvo is equipped with dedicated hoses and storage containers. This makes the vehicle unique to their fleet and not realistically replaceable, particularly within the impoundment period.

12According to Mr. Amstett, the Volvo is a very necessary secondary vehicle that keeps the other equipment maintained. Regular visitations to the machines by the Volvo ensure that production is efficient and on time. The Volvo services the machinery and heavy equipment approximately every two weeks. Without the Volvo, that machinery and heavy equipment has been unable to be serviced since the time of the impoundment. Separate vehicles from third party companies have been retained to provide fuel to the vehicles and equipment. However, there is no other replacement that has the ability to service the fluid and lubricant needs.

13The Registrar submits that the Appellant does have access to reasonable alternatives to the vehicle. While the respondent agrees that there is no exact replica of the Volvo, the Appellant has hired other companies to supply their vehicles and machinery with fuel.

14I am not convinced that the Appellant does have a reasonable alternative to the impounded vehicle. While other vehicles have the ability to deliver fuel, the Volvo was customized specifically to also service the fluid and lubricant needs of the vehicles and machinery in the field. I accept the Appellants testimony that this type of vehicle is not readily available, if at all.

15I find that there is no reasonable alternative to the impounded vehicle.

The impoundment of the vehicle will not result in 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.

16Mr. Amstett testified that, without the continued maintenance that the Volvo provides to its vehicles and machinery in the field, the road repairs which it is contracted to provide will be extended by the probable breakdowns of its equipment.

17The Appellant submits that the prolonged roadwork, especially if it extends into the winter months with the effect of the half load rule, creates an increased danger to the public by the increase of traffic and the lengthening of the time that its maintenance vehicles are on the roads. It also submits that road construction poses a difficulty for first responders and emergency vehicles.

18Upon questioning, Mr. Amstett admitted that, to date, the impoundment of the Volvo has not caused breakdown of any vehicles, nor any delays in the work being conducted. The Appellant submits however, that the continued impoundment would inevitably mean that the equipment and vehicles would not be serviced and

maintained as there is a potential of breakdowns causing delays in the completion of the roadwork.

19I am not persuaded by this position. The possible breakdowns of equipment due to the impoundment of the Volvo does not rise to the level of a threat to the public health and safety of the public. To date, the impoundment has not produced a threat, and the possibility of a breakdown is merely speculative. With respect to first responders and emergency vehicles, Mr. Amstett testified that a “pilot vehicle” is present to prioritize the escorting of those services through the construction zones, as is the normal practice.

The impoundment does not create an immediate, significant and long-lasting financial or economic loss to any person ordinarily transported by the vehicle.

20Mr. Amstett testified that the late conclusion of municipal contracts attracts financial penalties as well as being potentially ‘blacklisted’ with respect to future contracts. These outcomes would create significant financial consequences due to the impoundment and would be crippling to the Appellant. Mr. Amstett did testify that the effects of the impoundment have, as of yet, not been crippling, and there have not been any delays thus far.

21As with the possibility of threat to public health and safety, the possibility of any financial consequences to the impoundment are contingent upon the failure of the field vehicles and equipment. This, to date, has not occurred and it is merely speculative as to whether it would. Further, the appellant did not lead any evidence which establishes that the economic loss will be sustained by any person ordinarily transported by the vehicle other than the suspended driver, as required by s. 10 of the Regulation. For these reasons, I conclude the impoundment does not result in financial or economic loss that is immediate, significant and long lasting.

Conclusion

22The Appellant has established that there is no alternative to the Volvo. However, the Appellant has failed to satisfy the Tribunal on a balance of probabilities that it meets the test for exceptional hardship, specifically that the impoundment would result in a threat to the public health and safety or to the environment or would result in an immediate, significant and long-lasting financial or economic loss, as set out in the Regulation.

I ORDER AS FOLLOWS:

23For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.