Licence Appeal Tribunal File Number: 15583/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Cuda Landscape Inc.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

James Buchanan, Representative

For the Respondent:

Leila Pereira, Representative

HEARD: February 5, 2024

OVERVIEW

1The appellant, Cuda Landscape Inc., appeals under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”) from the 45-day impoundment of a 2015 GMC Sierra motor vehicle. The appellant’s motor vehicle was impounded on January 21, 2024. At the time of the impoundment, the appellant’s employee, Austin Mahood, was driving the vehicle while his licence was suspended.

2The appellant appeals on the grounds that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act, and therefore, the impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2015 GMC Sierra vehicle (the “vehicle”);

ii. on January 21, 2024, the police discovered the vehicle being driven by Austin Mahood (the “driver”); and

iii. the licence of the driver was under suspension for a Criminal Code conviction at the time the police detained the vehicle for impoundment.

Whether the impoundment will result in exceptional hardship

6The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find that the appellant has established that there is no alternative to the vehicle but has not met the remainder of the criteria to establish exceptional hardship.

7Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

8Subsection 10(1) requires the Tribunal to first consider 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.

9If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

10If 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 property of a community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant has proven 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.

11The owner of the appellant, Mr. James Buchanan, testified on behalf of the appellant. Mr. Buchanan testified that the appellant is a small company that provides snow plowing and salting services to residential and commercial properties during the winter months. The appellant has entered into five contracts for snow plowing and salting services.

12Mr. Buchanan testified that the appellant has four vehicles but the impounded vehicle is the only salt truck out of the four vehicles, and it is essential to the appellant’s operations. He testified that the appellant does not have an alternative to the impounded vehicle. He testified that the other vehicles are used for landscaping and plowing snow only. He testified that the appellant cannot attach a salting mechanism to the other vehicles as they do not have an electrical supply to operate the salting mechanism. The impounded vehicle is the only one that can salt the roads and driveways.

13Mr. Buchanan testified that, since the impoundment, there has been no major snowfall requiring salting. However, on one occasion, the appellant was required to salt an area of an industrial park. On that occasion, salt was put on the back of one of the appellant’s other vehicles and an employee was required to manually shovel the salt to the ground. It took about four hours for two employees to salt a 30 foot area. Normally, one employee can complete the job in less time. Mr. Buchanan testified that the salting was only performed for a small laneway area and the appellant would not be able to do this for all its residential and commercial clients. He testified that the areas requiring salting are too great and this would not be feasible should it snow.

14I find that the appellant has established that there is no alternative to the impounded vehicle. The impounded vehicle is the sole vehicle that has an electrical supply to operate the salting mechanism. None of the appellant’s other vehicles have an electrical supply as required. I am persuaded by Mr. Buchanan’s testimony in this regard.

15I find that the appellant has demonstrated that every reasonable option has been considered. I accept Mr. Buchanan’s testimony that even though, since the impoundment, the appellant was able to salt a 30 foot area manually, this is not feasible with regards to all its clients. I find that it is not a reasonable option for the appellant to utilize its other vehicles to manually salt the vast areas required should there be snowfall during the impoundment period. This is particularly the case as the appellant has several contracts that would require salting.

16As the appellant has established that there is no alternative to the impounded vehicle available, I next need 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 property of a community in whose service the motor vehicle is ordinarily used. In this respect, I find the appellant has not met its burden. The appellant did not lead any evidence to establish any threat to the health or safety of a person ordinarily transported by the vehicle, or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

17Instead, the appellant asserts that there is a possible threat to the appellant’s current and future business should it fail to fulfill its contractual obligations to salt properties after a snowfall. I find that there was no persuasive evidence presented that the appellant has failed thus far in fulfilling its salting obligations or that the impoundment has resulted in any financial or economic loss. I point out that the test is whether the impoundment will result in exceptional hardship. Arguably the impoundment may result in the inability to fulfill the contractual obligations which in turn may result in the loss of a contract or other financial losses but both propositions seem speculative to me and do not appear to rise to a balance of probabilities that they will result in exceptional hardship.

18Under the circumstances, I find the appellant has not proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act must fail.

ORDER

19Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.