2726592 Ontario Inc. v. Registrar of Motor Vehicles, 2024 CanLII 20676

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15638/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

Between:

2726592 Ontario Inc. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Davin Lim, an owner of the appellant For the Respondent: Sadia Ashraf, Representative

HEARD: February 28, 2024

OVERVIEW

12726592 Ontario Inc., the appellant, appealed from the impoundment of its leased 2016 RAM, (the “vehicle), on February 7, 2024 for 45 days. At the time of impoundment, the vehicle was being driven by Timothy Henneberry (the “driver”).

2The appellant appeals on two grounds. The first ground is that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension because he had a valid Nova Scotia driver’s licence. The second ground is that the impoundment will result in exceptional hardship because the appellant is a small business which cannot operate without the use of its only vehicle for its operations such as deliveries, product transportation from suppliers and customers.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the drivers licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of Ontario Regulation 631/98 (“Regulation”)?

RESULT

4I find that the driver’s licence of the driver at the time the vehicle was detained in order to be impounded was under suspension. I also 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 grounds (b) that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension and (d), that the impoundment will result in exceptional hardship.

Issue 1: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA

7Taishi Asama, an employee of the appellant and the sole witness at this hearing, testified that he was a passenger at the time the vehicle was being driven by the driver before it was stopped by the police, and subsequently impounded.

8Mr. Asama testified that the driver had a valid Nova Scotia driver’s licence at the time of the impoundment. However, in cross-examination Mr. Asama admitted that he is unaware of what steps were taken by the appellant to determine if the driver’s Nova Scotia licence was valid, he was unaware that the driver had exchanged his Nova Scotia licence for a licence in Ontario, and knows nothing more about the driver’s licence other than the driver told him he had a valid driver’s licence in Ontario from 2020 to 2022.

9Mr. Asama testified that, as an employee, he does not know the appellant’s policy on verifying the validity of the driver’s licence of anyone permitted to drive the appellant’s vehicle.

10The driver of the vehicle did not testify. No copy of a valid driver’s licence for the driver in either Ontario or Nova Scotia was brought forward by the appellant.

11In closing, the appellant submitted that it is the appellant’s position that the driver had a valid Nova Scotia driver’s licence entitling him to drive the vehicle in Ontario. I find that there is no evidence supporting this submission.

12To the contrary, the records filed by the Registrar make it clear that the Ontario driver’s licence of the driver was suspended at the time of impoundment and I so find.

13I find that the appellant has failed to prove on a balance of probabilities that the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

14I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

15Section 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.

16If 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.

17I 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.

18Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

19Mr. Asama testified that the appellant needs the vehicle to deliver merchandise but he could not give any details of the appellant’s delivery needs because he is only involved in the appellant’s marketing. Mr. Asama did confirm that the appellant carries on business on-line as well at its store but that the appellant has shut down its business. Mr. Asama said it is too expensive for the appellant to rent a vehicle to do deliveries.

20Mr. Asama also testified that Davin Lim, one of the owners of the appellant and the person who leases the vehicle to the appellant, has told him that Mr. Lim needs the vehicle to get to work and is currently spending some $230.00 a week on ubers which is difficult for Mr. Lim.

21Mr. Lim did not testify.

22Based on the testimony of Mr. Asama I find that alternative transportation is available to the appellant and Mr. Lim. Renting a vehicle to carry on its business is an alternative available to the appellant, albeit at a cost. Mr. Lim is using uber as alternative transportation, albeit at a cost which Mr. Asama testified is difficult for Mr. Lim. Inconvenience is not a factor which the Tribunal can take into consideration.

23Although Mr. Asama indicated that the costs of the impoundment is a financial hardship for the appellant, this is not a factor which I can consider here.

24I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

25I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including the opportunity to rent another vehicle and the use of ubers.

26I find on the facts of this case that the appellant has not met its onus to establish this ground of appeal.

Conclusion

27The appellant has not established either of its grounds of appeal. The evidence is clear that the driver’s Ontario driver’s licence was suspended within the meaning of s. 50.2(3)(b) of the HTA at the time of the impoundment.

28I also 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

29Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.