Dynamic Pest Services Inc. v. Registrar of Motor Vehicles, 2024 CanLII 126291

Licence Appeal Tribunal File Number: 16453/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:

Dynamic Pest Services Inc.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Steven Howe, Representative

For the Respondent:

Leila Pereira, Agent

Heard:

November 25, 2004

OVERVIEW

1The appellant, Dynamic Pest Services Inc., appeals the 45-day impoundment of its 2022 Ford 150 work vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). Steven Howe, the sole shareholder of Dynamic Pest Services Inc., represented his company at today’s hearing.

2The appellant’s vehicle was impounded on November 10, 2024, after police found it being operated by Mr. Howe’s son and occasional worker, M.H., whose licence was under a Criminal Code suspension at the time. M.H.’s driver’s licence status is noted as suspended/cancelled/unlicensed/unrenewable due to his failure to complete a remedial program. M.H. was also found operating the vehicle with over 80 mgs blood/alcohol content and therefore incurred new charges on the day of the impoundment.

3Subsection 55.1(2) 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 at the time of its detention is under suspension for certain Criminal Code offences. In this case, M.H.’s driver’s licence was suspended pursuant to sections 41 and 43 of the Act following a conviction for impaired driving which required that he complete a remedial program on March 25, 2024. Once he completes this course, he will be subject to an ignition interlock condition for one year. However, this could change due to new charges he incurred.

ISSUE

4The appellant appeals the impoundment pursuant to s. 50.2(3)(d) on the grounds that the impoundment will result in exceptional hardship.

RESULT

5Having 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. I therefore dismiss the appeal and confirm the impoundment.

ANALYSIS

Has the appellant experienced exceptional hardship as a result of the impoundment?

6The test for exceptional hardship is set out in s. 10(1) of Ontario Regulation 631/98 (“Regulation”). To establish exceptional hardship, I must first determine that there is no reasonable alternative to the impounded vehicle.

7Section 10(4) of the Regulation provides that, in order to show that no alternative to the impounded vehicle is available,

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.

8It is undisputed between the parties that M.H., a suspended driver, was operating the vehicle at the time it was detained in order to be impounded and the impoundment was lawful. The appellant’s representative stated that he was trying to help M.H. by offering him work in his pest control business. He was aware that M.H. was a suspended driver. He states it was his expectation that M.H. would not be operating the vehicle and that his girlfriend would be driving him to the various service calls.

9The appellant’s representative testified that the impounded vehicle is specially equipped and hard-wired meaning that any conventional vehicle would not satisfy the work purpose it is intended for. The vehicle is outfitted with a 65-gallon tank for pesticides, a two-horsepower pump, and 200 feet of hose.

10During the hearing, the appellant’s representative testified that he has another vehicle which is specially equipped in this way and has been in full operation since the impoundment. Therefore, the appellant company has two such vehicles in its fleet which are capable of servicing private businesses for their pest control needs. With the impoundment of one of the vehicles, the appellant has had to make temporary adjustments to its business operation to ensure customer priority calls are still responded to.

11Section 10(4) requires that I consider whether the appellant can manage without the vehicle for the duration of the impoundment period. I am aware that the impoundment period is temporary. I also did not receive any documentary evidence which would demonstrate that the appellant company is at risk of suffering long term or irreparable loss or damage as a result of not having the impounded vehicle for a certain period of time. On the contrary, it has been able to implement changes in its business to accommodate most of the service demands. No doubt these adjustments have been inconvenient to the appellant. Mr. Howe testified that he would have to adjust his service schedule which will require him to attend service calls outside of regular business hours. This is achievable.

12I did not receive any evidence that would indicate anyone who normally relies on the impounded vehicle will be placed at undue risk or have their health and safety compromised. There was also no economic loss that was evident which would be immediate, significant and lasting. The appellant’s representative testified that he is able to make adjustments to his business operation which would allow him to continue to serve his customers. As such, I find that during this period of impoundment the appellant has a reasonable alternative to the impounded vehicle.

13The Regulation sets out that if the appellant fails to establish that there are no reasonable alternatives to the impounded vehicle available, then an appeal on the basis of exceptional hardship cannot succeed.

14For the reasons set out, I find that the appellant has failed to discharge the threshold burden of establishing on a balance of probabilities that there are no reasonable alternatives to the impounded vehicle. He therefore does not meet the test for exceptional hardship as set out in the Regulations under the Act.

ORDER

15For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment.